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Agricultural Marketing Service, USDA.
Final rule.
This final rule adopts changes to Agricultural Marketing Service (AMS) regulations as required by section 273(d) of the Agricultural Marketing Act of 1946 (the Act) as amended by the Mandatory Price Reporting Act of 2010. The amendment to the Act requires the Secretary of Agriculture (Secretary) to establish an electronic reporting system for certain manufacturers of dairy products to report sales information for a mandatory dairy product reporting program. The amendment further states that the Secretary shall publish the information obtained for the preceding week not later than 3 p.m. Eastern Time on Wednesday of each week.
This rule is effective April 1, 2012.
For information relevant to this final rule, contact Clifford M. Carman, Assistant to the Deputy Administrator, USDA/AMS/Dairy Programs, Office of the Deputy Administrator, STOP 0225—Room 2968, 1400 Independence Ave. SW., Washington, DC 20250–0225,
This final rule is a statutory requirement pursuant to the Agricultural Marketing Act of 1946 [7 U.S.C. 1621–1627, 1635–1638], as amended November 22, 2000, by Public Law 106–532, 114 Stat. 2541; May 13, 2002, by Public Law 107–171, 116 Stat. 207; and September 27, 2010, by Public Law 111–239, 124 Stat. 2502.
The proposed rule was published in the
AMS is responsible for verifying the sales information submitted by reporting entities to NASS. To verify information submitted, AMS visits larger entities that account for 80 percent of the yearly reported product volume, based on the previous year, of each specified dairy product at least once annually. AMS visits one-half of entities that account for the remaining 20 percent each year, visiting each such entity at least once every other year. During each visit, AMS reviews applicable sales transactions records for at least the 4 most recent weeks. In some cases, AMS may review sales records for up to 2 years. AMS verifies that sales transactions match the information reported to NASS and that there have been no applicable sales transactions that have not been reported to NASS. Noncompliance, appeals, and enforcement procedures are administered by AMS.
The Mandatory Price Reporting Act of 2010 (Pub. L. 111–239, Sept. 27, 2010) amended section 273(d) of the Act (7 U.S.C. 1637b) to require that the Secretary establish an electronic reporting system for manufacturers of dairy products to report certain market information for the mandatory dairy product reporting program. The amendment further states that the Secretary shall publish the information obtained under this section for the preceding week not later than 3 p.m. Eastern Time on Wednesday of each week. This final rule, in accordance with the Act, includes regulatory changes for implementing these provisions. This rule also transfers applicable data collection responsibilities from NASS to AMS and includes conforming changes.
AMS requested comments on the proposed rule. AMS has reviewed all comments received within the 60-day comment period and has considered these comments in developing this final rule.
This final rule has been determined not to be significant for purposes of Executive Order 12866 and therefore has not been reviewed by the Office of Management and Budget with respect to this Executive Order.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. The amendments contained in this final rule are not intended to have a retroactive effect.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), AMS has considered the economic impact of this final rule on small entities and has determined that this rule would not have a significant economic impact on a substantial number of small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened.
Small businesses in the dairy product manufacturing
The dairy manufacturing establishments included in U.S. Census Bureau statistics include manufacturers of all types of dairy products. The number of plants that produce butter, cheese, NFDM, and dry whey with the precise specifications included in the mandatory reporting requirements is much lower than this. Furthermore, those manufacturers that process and market less than 1 million pounds of the applicable dairy products annually are exempt from reporting sales data. NASS has conducted an annual validation survey that serves to determine which plants are required to report. In 2011, this survey included 181 plants. The annual cost for plants to complete this survey is estimated at approximately $9 per plant. AMS will continue to conduct the validation survey annually. For 2011 there were 94 dairy product plants subject to mandatory reporting of sales data. There are 51 reporting entities that report data for one or more plants. (Plant numbers and numbers of reporting entities have been updated from the 2010 numbers that were reported in the proposed rule.) Based upon company profile information available on the Internet, AMS estimates that almost half of the reporting entities are considered small businesses under the criteria established by the SBA.
AMS estimates that the annual cost per plant for reporting sales information for products included in the surveys will be approximately $586. (The change from $511 shown in the proposed rule is due to recognition of greater costs associated with plants that must report sales information for both 40-pound blocks and 500-pound barrel cheddar cheese.) The majority of reporting entities have already been submitting data to NASS through a secure Web-based application. Less than three plants have been regularly faxing their information, and it is believed that these plants do have Internet access. Therefore, there would be no significant start-up costs anticipated for the reporting entities as a result of implementing this final rule.
Under the current Dairy Product Mandatory Reporting Program, dairy manufacturers are required to maintain records for verification purposes for a 2-year period. This final rule makes no changes to this requirement. These records are maintained as part of the normal course of business. Thus, there is no additional burden or cost associated with the maintenance of these records. Therefore, in total, this final rule will not have a significant economic impact on a substantial number of small entities.
In accordance with the Paperwork Reduction Act (44 U.S.C. Chapter 35), reporting and recordkeeping requirements that are utilized to collect the information required by the Act have been reviewed by the Office of Management and Budget (OMB). OMB has assigned a reference number of 0581–0274.
The Act requires each manufacturer to report to the Secretary information concerning the price, quantity, and moisture content (where applicable) of dairy products sold by the manufacturer. Dairy products reported include cheddar cheese, butter, dry whey, and NFDM. Dairy manufacturers report information for these products if the products meet certain product specifications.
The collection and reporting of sales information, as required by the Act, have been the responsibility of NASS. NASS has collected the information as part of the information collection package OMB 0535–0020. NASS has allowed manufacturers to submit information through a secure Web-based application, by email, or by fax. Manufacturers have been required to submit information to NASS by 12 noon on Wednesday on all applicable sales of products during the 7 days ending 12 midnight of the previous Saturday, local time of the plant or storage facility where the sales are made. NASS has compiled and aggregated the information reported by the reporting entities and has published the information each Friday morning. When a Federal holiday has fallen on a Tuesday or Wednesday, NASS has contacted manufacturers via email or phone concerning the applicable report deadline.
Manufacturers that process and market less than 1 million pounds of applicable dairy products annually are exempt from reporting requirements. Each year, dairy manufacturers have completed an Annual Validation Worksheet for NASS to determine which dairy manufacturers are exempt and to ascertain if valid information has been supplied.
The Mandatory Price Reporting Act of 2010 amended subsection 273(d), of the Act, requiring the Secretary to establish an electronic reporting system to collect certain information. Using this reporting system, AMS will publish, not later than 3 p.m. Eastern Time on Wednesday of each week, a report containing the preceding week's information. The information collection and reporting requirements have been the responsibility of NASS. Under this final rule, AMS will assume this responsibility. NASS will no longer collect price, quantity, or moisture content (where applicable) information for cheddar cheese, butter, NFDM, or dry whey, and NASS will no longer collect the associated annual validation information. The forms associated with this data collection will be removed from NASS collection package, OMB 0535–0020, and will be replaced by forms in AMS collection package, OMB 0581–0274.
Every effort has been made to minimize any unnecessary recordkeeping costs or requirements. The electronic submission forms will require the minimum information necessary to carry out the requirements of the program effectively, and their use is necessary to fulfill the intent of the Act. It is expected that no outside technical expertise will be needed. The forms are simple, easy to understand, and place as small a burden as possible on respondents.
To assist the industry in achieving compliance, educational and outreach sessions will be held prior to implementation. AMS will assist reporting entities in understanding requirements for submitting data through electronic means. In addition, AMS will beta test the electronic-submission technology before implementation, and all entities required to report will be encouraged to participate in the beta-testing program. Any feedback received during this
Collecting the information will coincide with normal industry business practices. The timing and frequency of collecting information are intended to meet the needs of the program while minimizing the amount of work necessary to submit the required reports. The information to be collected by AMS is almost identical to the information that has been collected by NASS. While NASS has required either the total sales dollars or the dollars per pound in addition to the total pounds of products sold to be reported, AMS will require both the total sales dollars and the dollars per pound to be reported along with the total pounds of products sold in order to provide an additional validation check. NASS has permitted manufacturers to submit information through a secure web-based application, by email, or by fax. This final rule, however, requires manufacturers to submit information only by electronic means specified by AMS. AMS has specified that each manufacturer submit the information using a secure Internet connection that includes a user name and password. The requirement that reporting entities submit information electronically is in accordance with the Act.
The frequency of data collection will not change. Reporting entities have been required to report information to NASS on a weekly basis by 12 noon local time on Wednesday. This final rule requires reporting entities to report information to AMS on a weekly basis by 12 noon, local time of the reporting entities, on Tuesday. This change is necessary to allow AMS personnel time to review and compile data and to publish the information by 3 p.m. Eastern Time on Wednesday as required by the Act. If a Federal holiday falls on Monday through Wednesday of a particular week, the due date for report submission may be adjusted. Prior to the beginning of each calendar year, AMS shall inform reporting entities of the times and dates that reports are due.
The first date reporting entities shall provide information to AMS will be Tuesday, April 3, 2012, of sales data for the week ending Saturday, March 31, 2012. The first publication by AMS will be on Wednesday, April 4, 2012, by 3 p.m. Eastern Time. The last publication by NASS will be on March 30, 2012, of sales data through the week ending March 24, 2012.
Information collection requirements included in this final rule are listed below. There have been minor changes to the number of respondents compared to the proposed rule due to updated information and the separation of cheddar cheese surveys into two types: blocks and barrels.
Copies of this information collection and related instructions can be obtained without charge from Clifford M. Carman, Assistant to the Deputy Administrator, Dairy Programs, AMS, USDA,
Except as otherwise directed by the Secretary of Agriculture or the U.S. Attorney General for enforcement purposes, no officer, employee, or agent of the United States shall provide the public any information, statistics, or documents obtained from or submitted by any person under the Act that does not ensure preservation of confidentiality regarding the identity of persons, including parties to contracts and proprietary business information. All report forms include a statement that individual reports are kept confidential.
With respect to the application of the Privacy Act of 1974 (5 U.S.C. 552a) to
The proposed rule solicited comments to be submitted to USDA on or before August 9, 2011. During this 60-day comment period, seven comment submissions were received: Three from dairy cooperative associations, two from cooperative federations, one from a dairy producer association, and one from a dairy manufacturer/processor trade association. Six of the commenters expressed overall support for the mandatory electronic reporting system and one commenter specifically expressed support for AMS to beta test the electronic submission technology.
Two commenters asked that AMS initiate a second rule and comment period so that the industry can address issues on product specifications, data collection, and publication. AMS will consider soliciting public comments through the
One commenter stated that, although the Mandatory Price Reporting Act of 2010 sets timing for mandatory electronic reporting, they believe congressional authority exists for daily reporting, citing that the 2008 Farm Bill authorizes “more frequent reporting.” AMS considered this comment, however, the Act does not permit a requirement for reporting entities to report at any frequency other than weekly. Paragraph (b)(2)(C) of section 273 of the Act provides a condition that “the frequency of the required reporting * * * does not exceed the frequency used to establish minimum prices for Class III or Class IV milk under a Federal milk marketing order.” The Federal milk marketing orders establish minimum prices for Class III and Class IV milk based upon weekly dairy products prices reported (7 CFR 1000.50). Although the 2008 Farm Bill amended subsection (d) of section 273 of the Act to require more frequent reporting, subject to the availability of funds, the Mandatory Price Reporting Act of 2010 further amended the Act, deleting the requirement for more frequent reporting. One reporting entity specifically opposed any reporting period that is more frequent than weekly, citing time needed to receive warehouse bills of lading and preparation time for reporting information.
Three commenters expressed concern about the proposed change to move the weekly manufacturers' submission of reports from Wednesday 12 noon local time to Tuesday 12 noon local time, stating that this change would result in increased regulatory costs and increased revisions. AMS acknowledges that the change in reporting date by one day may cause manufacturers to change their methods of data collection and reporting, adding some additional reporting burden. However, AMS must publish sales reports by 3 p.m. Eastern Time on Wednesday whereas NASS has published sales reports on Friday morning. USDA, therefore, must change the weekly reporting day in order to complete validation checks and data analysis before weekly publication.
Three commenters had concerns about increased burdens and revisions for weeks that include an intervening holiday. AMS plans to allow reporting later in the week than Tuesday at noon when holidays intervene with reporting dates. USDA will provide the public an annual reporting schedule prior to the beginning of each calendar year.
One commenter requested that reporting flexibility be extended to accommodate situations that arise outside the control of the reporting facility. Barring any unforeseen circumstances which would make timely reporting impossible (such as an extreme natural disaster), AMS plans to hold the Tuesday noon submission deadline steadfast each week (other than a week with an intervening holiday). This will facilitate AMS in fulfilling its obligation to report by Wednesday at 3 p.m. Eastern Time each week (other than a week with an intervening holiday).
One commenter asked for guidance on how revisions would be submitted with the new electronic reporting system. Although revision procedures are not specifically spelled out in this rule, AMS will provide instructions for reporting requirements, including reporting of revisions, to all parties that must report. These instructions will be available to respondents during the reporting process. In addition, the procedures will be covered in educational and outreach sessions that will be provided to respondents prior to implementation of the amendments.
One commenter encouraged AMS to provide weekly notices to dairy manufacturers reminding them of the reporting deadlines for the following week. AMS does not plan to send weekly reminders concerning the due dates of reports. This final rule states that a schedule shall be provided to reporting entities prior to the beginning of each calendar year; AMS plans to post the scheduled reporting due dates on the Internet. This does not preclude AMS from providing other reminders to reporting entities throughout the year, such as for weeks with upcoming holidays.
Two commenters requested that reporting requirements be expanded beyond the current four commodities: Cheddar cheese, butter, nonfat dry milk, and dry whey. One commenter asked for reporting requirements to include yogurt, sour cream, cottage cheese, and other types of cheeses with a large sales volume. Another commenter asked that other products be added to the reporting list, including mozzarella (low or high moisture), Monterey Jack, Grade A Swiss, skim milk powder, buttermilk powder, whole milk powder, whey protein concentrate, and soft products or spot cream. The Act does not permit expanding the list of mandatory reported commodities beyond the four products historically reported. Paragraph (b)(2) of section 273 of the Act provides a condition that “the information * * * is required only to the extent that the information is actually used to establish minimum prices for Class III or Class IV milk under a Federal milk marketing order.” The Federal milk marketing orders establish minimum prices for Class III and Class IV milk based upon prices reported for butter, cheddar cheese, nonfat dry milk, and dry whey (7 CFR 1000.50).
One of the commenters requested that AMS expand the required reporting plants by reducing the 1 million pounds per year threshold to 500,000 pounds per year production or sales. Paragraph (b)(2)(D) of section 273 of the Act states, “the Secretary may exempt from all reporting requirements any manufacturer that processes and markets less than 1,000,000 pounds of dairy products per year.” The Act does not permit AMS to establish a reporting exemption threshold for manufacturers at any level other than 1 million pounds of dairy products processed and marketed per year.
One commenter asked that cheese committed for sale, but not yet sold (delivered), be designated as such for
AMS has made one change in this final rule from the proposed rule. The reporting requirements in § 1170.7(a) have been modified to indicate that reporting entities must report both the total sales dollars and dollars per pound for the applicable products. NASS has required either the total sales dollars or dollars per pound for the applicable products to be reported, and the proposed rule would have continued this requirement without change. However, the requirement to report both the total sales dollars and dollars per pound will provide AMS with a validation check to insure that, in each instance, the total sales dollars reported equals the dollars per pound times the reported quantity. Since this is a de minimus change in reporting burden, it has no effect on the estimated reporting burden for each survey.
Dairy products, Reporting and recordkeeping requirements, Cheese, Butter, Dry whey, Nonfat dry milk.
Accordingly, 7 CFR part 1170 is amended as follows:
7 U.S.C. 1637–1637b, as amended by Pub. L. 106–532, 114 Stat. 2541; Pub. L. 107–171, 116 Stat. 207; and Pub. L. 111–239, 124 Stat. 2501.
(a) All dairy product manufacturers, with the exception of those who are exempt as described in § 1170.9, shall submit a report weekly to the Agricultural Marketing Service (AMS) by Tuesday, 12 noon local time of reporting entities, on all products sold as specified in § 1170.8 during the 7 days ending 12 midnight of the previous Saturday, local time of the plant or storage facility where the sales are made. If a Federal holiday falls on Monday through Wednesday of a particular week, the due date for report submission may be adjusted. Prior to the beginning of each calendar year, AMS shall release, to manufacturers that are required to report, the times and dates that reports are due. For the applicable products, the report shall be submitted by electronic means specified by AMS and shall indicate the name, address, plant location(s), quantities sold, total sales dollars, dollars per pound, and the moisture content where applicable. Each sale shall be reported for the time period when the transaction is completed, i.e. the product is “shipped out” and title transfer occurs. Each sale shall be reported either f.o.b. plant if the product is “shipped out” from the plant or f.o.b. storage facility location if the product is “shipped out” from a storage facility. In calculating the total dollars received and dollars per pound, the reporting entity shall neither add transportation charges incurred at the time the product is “shipped out” or after the product is “shipped out” nor deduct transportation charges incurred before the product is “shipped out.” In calculating the total dollars received and dollars per pound, the reporting entity shall not deduct brokerage fees or clearing charges paid by the manufacturer.
(b) Manufacturers or other persons storing dairy products are required to report, on a monthly basis, stocks of dairy products (as defined in § 1170.4) on hand, on the appropriate forms supplied by the National Agricultural Statistic Service. The report shall indicate the name, address, and stocks on hand at the end of the month for each storage location.
(a) * * *
(3) * * *
(ii) 500-pound barrels: Report weighted average moisture content of cheese sold. AMS will adjust price to a benchmark of 38.0 percent based on standard moisture adjustment formulas. Exclude cheese with moisture content exceeding 37.7 percent.
Not later than 3 p.m. Eastern Time on the Wednesday of each week, AMS shall publish aggregated information obtained from manufacturers or other persons of all products sold as specified in § 1170.8. If a Federal holiday falls on Monday through Wednesday of a particular week, the due date for report publication may be adjusted. The public shall be notified of report times prior to the beginning of the calendar year.
Bureau of Consumer Financial Protection.
Final rule; official commentary.
The Bureau of Consumer Financial Protection (Bureau) is publishing a final rule amending the official commentary that interprets the requirements of Regulation C (Home Mortgage Disclosure) to reflect a change in the asset-size exemption threshold for depository institutions based on the annual percentage change in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI–W). The exemption threshold has been adjusted to increase to $41 million from $40 million. The adjustment is based on the 3.43 percent increase in the average of the CPI–W for the twelve-month period ending in November 2011. Therefore, depository institutions with assets of $41 million or less as of December 31, 2011 are exempt from collecting data in 2012.
Effective February 15, 2012.
Jennifer Diamantis, Senior Counsel, Office of Regulations, at (202) 435–7700.
The Home Mortgage Disclosure Act of 1975, as amended (HMDA; 12 U.S.C. 2801
Prior to 1997, HMDA exempted depository institutions with assets
The definition of “financial institution” in Regulation C provides that the Bureau will adjust the asset threshold based on the year-to-year change in the average of the CPI–W, not seasonally adjusted, for each twelve month period ending in November, rounded to the nearest million. 12 CFR 1003.2. For 2011, the threshold was $40 million. During the twelve-month period ending in November 2011, the CPI–W increased by 3.43 percent. As a result, the exemption threshold is increased to $41 million. Thus, depository institutions with assets of $41 million or less as of December 31, 2011 are exempt from collecting data in 2012. An institution's exemption from collecting data in 2012 does not affect its responsibility to report data it was required to collect in 2011.
Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Bureau finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). Comment 2(Financial institution)-2 is amended to update the exemption threshold. The amendment in this notice is technical and non-discretionary, and it merely applies the formula established by Regulation C for determining any adjustments to the exemption threshold. For these reasons, the Bureau has determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. Therefore, the amendment is adopted in final form.
Banks, Banking, Credit unions, Mortgages, National banks, Savings associations, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Bureau of Consumer Financial Protection amends 12 CFR part 1003 as follows:
12 U.S.C. 2803, 2804, 2805, 5512, 5581.
Section 1003.2—Definitions.
Financial institution.
2.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for Eurocopter Deutschland (ECD) Model EC135 helicopters. This AD results from a mandatory continuing airworthiness information (MCAI) AD issued by the aviation authority of the Federal Republic of Germany, with which we have a bilateral agreement, to identify and correct an unsafe condition. The MCAI AD states that in the past, the FADEC FAIL caution light illuminated on a few EC135 T1 helicopters. It states that this was caused by a discrepancy in the parameters that was generated within the fuel main metering unit and transmitted to the FADEC. This discrepancy led to the display of the FADEC FAIL caution light and “freezing” of the fuel main metering valve at its position, resulting in loss of the automatic engine control in the affected system. With the MCAI AD, a synchronization procedure for pilots, which was already used in the past, is being reintroduced, which prevents the parameter discrepancy arising and thus sustains the automatic engine control.
The AD actions are intended to prevent failure of the FADEC to automatically meter fuel, indicated by a FADEC FAIL cockpit caution light, and subsequent loss of control of the helicopter.
Effective March 21, 2012.
For service information identified in this AD, contact American Eurocopter Corporation, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at
You may examine the AD docket on the Internet at
Eric Haight, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Regulations and Guidance Group, Fort Worth, Texas 76137; telephone (817) 222–5204; email:
On April 28, 2011, we issued a Notice of Proposed Rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the Eurocopter Deutschland (ECD) Model EC135 helicopters. That NPRM was published in the
We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM.
We have reviewed the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other products of the same type design, and that air safety and the public interest require adopting the AD requirements as proposed with the changes described previously and other minor editorial changes. These changes are consistent with the intent of the proposals in the NPRM and will not increase the economic burden on any operator nor increase the scope of the AD.
We use a 50-hour time-in-service (TIS) compliance time rather than before further flight as used in the MCAI AD. Also, the MCAI AD states to follow the ASB and insert pages into the Rotorcraft Flight Manual (RFM). We did not follow the ASB, which requires the RFM information to be filed in the Section 4, Normal Procedures, of the RFM. To make compliance with the information mandatory, we are requiring that it be inserted into the Section 2, Limitations Section of the RFM.
ECD has issued Alert Service Bulletin No. EC135–71A–024, dated August 6, 2002 (ASB). The ASB contains copies of special information to be inserted into the RFM for synchronizing fuel control components for sustaining automatic engine control. The ASB specifies making copies of the RFM pages contained in the ASB, cutting them out, and filing them in the RFM. The actions described in the MCAI AD are intended to correct the same unsafe condition as that identified in this service information.
We estimate that this AD will affect about 20 helicopters of U.S. registry. We also estimate that it will take about a half work-hour to copy and insert the synchronization procedure into the RFM. The average labor rate is $85 per hour. We estimate the cost of the AD on U.S. operators to be $850.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this 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 the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that a regulatory distinction is required; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA will amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model EC135 helicopters with Turbomeca Arrius 2B or 2B1 engines installed, certificated in any category.
This AD defines the unsafe condition as a discrepancy generated within the fuel main metering unit and transmitted to the FADEC, which could lead to the display of the FADEC FAIL caution light and “freezing” of the fuel main metering valve at its position. This condition could result in loss of the automatic engine control.
This AD is effective March 21, 2012.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Within 50 hours time-in-service (TIS), either insert the following procedure by making pen-and-ink changes to the Rotorcraft Flight Manual (RFM) or by inserting a copy of this AD into the Limitations Section of the RFM.
SPECIAL INFORMATION FOR OEI/AUTOROTATION TRAINING AND APPROACH/LANDING PREPARATION
In order to prevent a malfunction, which could lead to a FADEC FAIL indication, the following procedure is mandatory:
The procedure shown below must be performed while in a steady flight condition and at a safe altitude:
CAUTION: DURING THE RESET PROCEDURE DESCRIBED IN THE FOLLOWING, NO INPUTS ARE TO BE MADE TO THE COLLECTIVE LEVER OR TO THE TWIST GRIP FOR MANUAL ENGINE CONTROL, SINCE THIS CAN LEAD TO AN INEFFECTIVE SYNCHRONIZATION.
The reset procedure is identical for each of two systems and is to be applied for both engines, one after the other.
Procedure
1. ENG MODE SEL switch—Set from NORM TO MAN
After illumination of the ENG MANUAL caution:
2. ENG MODE SEL switch—Set from MAN to NORM: ENG MANUAL caution must go off
Repeat procedure for second engine.
(1) The Manager, Safety Management Group, Rotorcraft Directorate, FAA, may approve AMOCs for this AD. Send your proposal to: Eric Haight, Aviation Safety Engineer, Regulations and Guidance Group, 2601 Meacham Blvd., Fort Worth, Texas 76137, telephone (817) 222–5204, email:
(2) For operations conducted under a Part 119 operating certificate or under Part 91, Subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
(1) Eurocopter Alert Service Bulletin EC135–71A–024, dated August 6, 2008, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, contact American Eurocopter Corporation, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at
(2) The subject of this AD is addressed in Luftfahrt-Bundesamt (Germany) AD No. 2002–333, dated September 16, 2002.
Air Transport Association of America (ATA) Tracking Code: 7600, Engine Controls.
Federal Energy Regulatory Commission, DOE.
Final rule.
Pursuant to the authority delegated by 18 CFR 375.308(x)(1), the Director of the Office of Energy Projects (OEP) computes and publishes the project cost and annual limits for natural gas pipelines blanket construction certificates for each calendar year.
This final rule is effective February 15, 2012 and establishes cost limits applicable from January 1, 2012 through December 31, 2012.
Richard Foley, Chief, Certificates Branch 1, Division of Pipeline Certificates, (202) 502–8955.
February 9, 2012.
Section 157.208(d) of the Commission's Regulations provides for project cost limits applicable to construction, acquisition, operation and miscellaneous rearrangement of facilities (Table I) authorized under the blanket certificate procedure (Order No. 234, 19 FERC ¶ 61,216). Section 157.215(a) specifies the calendar year dollar limit which may be expended on underground storage testing and development (Table II) authorized under the blanket certificate. Section 157.208(d) requires that the “limits specified in Tables I and II shall be adjusted each calendar year to reflect the `GDP implicit price deflator' published by the Department of Commerce for the previous calendar year.”
Pursuant to § 375.308(x)(1) of the Commission's Regulations, the authority for the publication of such cost limits, as adjusted for inflation, is delegated to the Director of the Office of Energy Projects. The cost limits for calendar year 2012, as published in Table I of § 157.208(d) and Table II of § 157.215(a), are hereby issued.
This final rule is effective February 15. The provisions of 5 U.S.C. 804 regarding Congressional review of Final Rules does not apply to the Final Rule because the rule concerns agency procedure and practice and will not substantially affect the rights or obligations of non-agency parties. The Final Rule merely updates amounts published in the Code of Federal Regulations to reflect the Department of Commerce's latest annual determination of the Gross Domestic Product (GDP) implicit price deflator, a mathematical updating required by the Commission's existing regulations.
Administrative practice and procedure, Natural gas, Reporting and recordkeeping requirements.
Accordingly, 18 CFR part 157 is amended as follows:
15 U.S.C. 717–717w, 3301–3432; 42 U.S.C. 7101–7352.
(d) * * *
(a) * * *
(5) * * *
Internal Revenue Service, Department of the Treasury; Employee Benefits Security Administration, Department of Labor; Centers for Medicare & Medicaid Services, Department of Health and Human Services.
Final rules.
These regulations finalize, without change, interim final regulations authorizing the exemption of group health plans and group health insurance coverage sponsored by certain religious employers from having to cover certain preventive health services under provisions of the Patient Protection and Affordable Care Act.
Amy Turner or Beth Baum, Employee Benefits Security Administration (EBSA), Department of Labor, at (202) 693–8335; Karen Levin, Internal Revenue Service, Department of the Treasury, at (202) 622–6080; Robert Imes, Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), at (410) 786–1565.
The Patient Protection and Affordable Care Act, Public Law 111–148, was enacted on March 23, 2010; the Health Care and Education Reconciliation Act of 2010, Public Law 111–152, was enacted on March 30, 2010 (collectively, the Affordable Care Act). The Affordable Care Act reorganizes, amends, and adds to the provisions of part A of title XXVII of the Public Health Service Act (PHS Act) relating to group health plans and health insurance issuers in the group and individual markets. The Affordable Care Act adds section 715(a)(1) to the Employee Retirement Income Security Act (ERISA) and section 9815(a)(1) to the Internal Revenue Code (Code) to incorporate the provisions of part A of title XXVII of the PHS Act into ERISA and the Code, and make them applicable to group health plans.
Section 2713 of the PHS Act, as added by the Affordable Care Act and incorporated into ERISA and the Code, requires that non-grandfathered group health plans and health insurance issuers offering group or individual health insurance coverage provide benefits for certain preventive health services without the imposition of cost sharing. These preventive health services include, with respect to women, preventive care and screening provided for in the comprehensive guidelines supported by the Health Resources and Services Administration (HRSA) that were issued on August 1, 2011 (HRSA Guidelines).
The Departments of Health and Human Services, Labor, and the Treasury (the Departments) published interim final regulations implementing PHS Act section 2713 on July 19, 2010 (75 FR 41726). In the preamble to the interim final regulations, the Departments explained that HRSA was developing guidelines related to preventive care and screening for women that would be covered without cost sharing pursuant to PHS Act section 2713(a)(4), and that these guidelines were expected to be issued no later than August 1, 2011. Although comments on the anticipated guidelines were not requested in the interim final regulations, the Departments received considerable feedback regarding which preventive services for women should be covered without cost sharing. Some commenters, including some religiously-affiliated employers, recommended that these guidelines include contraceptive services among the recommended women's preventive services and that the attendant coverage requirement apply to all group health plans and health insurance issuers. Other commenters, however, recommended that group health plans sponsored by religiously-affiliated employers be allowed to exclude contraceptive services from coverage under their plans if the employers deem such services contrary to their religious tenets, noting that some group health plans sponsored by organizations with a religious objection to contraceptives currently contain such exclusions for that reason.
In response to these comments, the Departments amended the interim final regulations to provide HRSA with discretion to establish an exemption for group health plans established or maintained by certain religious employers (and any group health insurance coverage provided in connection with such plans) with respect to any requirement to cover contraceptive services that they would otherwise be required to cover without cost sharing consistent with the HRSA Guidelines. The amended interim final regulations were issued and effective on August 1, 2011.
In the preamble to the amended interim final regulations, the Departments explained that it was appropriate that HRSA take into account the religious beliefs of certain religious employers where coverage of contraceptive services is concerned. The Departments noted that a religious exemption is consistent with the policies in some States that currently both require contraceptive services coverage under State law and provide for some type of religious exemption from their contraceptive services coverage requirement. Comments were requested on the amended interim final regulations, specifically with respect to the definition of religious employer, as well as alternative definitions.
The Departments received over 200,000 responses to the request for comments on the amended interim final regulations. Commenters included concerned citizens, civil rights organizations, consumer groups, health care providers, health insurance issuers, sponsors of group health plans, religiously-affiliated charities, religiously-affiliated educational institutions, religiously-affiliated health care organizations, other religiously-affiliated organizations, secular organizations, sponsors of group health plans, women's religious orders, and women's rights organizations.
Some commenters recommended that the exemption for the group health plans of a limited group of religious organizations as formulated in the amended interim final regulations be maintained. Other commenters urged that the definition of religious employer be broadened so that more sponsors of group health plans would qualify for the exemption. Others urged that the exemption be rescinded in its entirety. The Departments summarize below the major issues raised in the comments that were received.
Some commenters supported the inclusion of contraceptive services in the HRSA Guidelines and urged that the religious employer exemption be rescinded in its entirety due to the importance of extending these benefits to as many women as possible. For example, one provider association commented that all group health plans and group health insurance issuers should offer the same benefits to plan participants, without a religious exemption for some plans, and that religious beliefs are more appropriately taken into account by individuals when making personal health care decisions. Others urged that the exemption be eliminated because making contraceptive services available to all women would satisfy a basic health care need and would significantly reduce long-term health care costs associated with unplanned pregnancies.
Some of the commenters supporting the elimination of the exemption argued that section 2713 of the PHS Act does not provide any explicit basis for exempting a subset of group health plans. One commenter asserted that Congress's incorporation of section 2713 of the PHS Act into ERISA and the Code indicates its intent to require coverage of recommended preventive services under section 2713 of the PHS Act in the broadest spectrum of group health plans possible.
Many commenters that opposed the exemption asked that, at a minimum, the Departments not expand the definition of religious employer. Alternatively, they asked that, if the Departments decided to base the relevant portion of the definition of religious employer on a Code section other than section 6033, the other portions of the definition of religious employer be retained to limit the exemption largely to houses of worship.
Some commenters urged the Departments not to modify the definition of religious employer. For example, some commenters asserted that the exemption is appropriately
Commenters opposing any exemption stated that, if the exemption were to be retained, clear notice should be provided to the affected plan participants that their group health plans do not include benefits for contraceptive services. In addition, they urged the Departments to monitor plans to ensure that the exemption is not claimed more broadly than permitted.
On the other hand, a number of comments asserted that the religious employer exemption is too narrow. These commenters included some religiously-affiliated educational institutions, health care organizations, and charities. Some of these commenters expressed concern that the exemption for religious employers will not allow them to continue their current exclusion of contraceptive services from coverage under their group health plans. Others expressed concerns about paying for such services and stated that doing so would be contrary to their religious beliefs.
Commenters also claimed that Federal laws, including the Affordable Care Act, have provided for conscience clauses and religious exemptions broader than that provided for in the amended interim final regulations. Some commenters asserted that the narrower scope of the exemption raises concerns under the First Amendment and the Religious Freedom Restoration Act.
Other commenters, however, disputed claims that the contraceptive coverage requirement infringes on rights protected by the First Amendment or the Religious Freedom Restoration Act. These commenters noted that the requirement is neutral and generally applicable. They also explained that the requirement does not substantially burden religious exercise and, in any event, serves compelling governmental interests and is the least restrictive means to achieve those interests.
Some religiously-affiliated employers warned that, if the definition of religious employer is not broadened, they could cease to offer health coverage to their employees in order to avoid having to offer coverage to which they object on religious grounds.
Commenters supporting a broadening of the definition of religious employer proposed a number of options, generally intended to expand the scope of the exemption to include religiously-affiliated educational institutions, health care organizations, and charities. In some instances, in place of the definition that was adopted in the amended interim final regulations, commenters suggested other State insurance law definitions of religious employer. In other instances, commenters referenced alternative standards, such as tying the exemption to the definition of “church plan” under section 414(e) of the Code or to status as a nonprofit organization under section 501(c)(3) of the Code.
In response to these comments, the Departments carefully considered whether to eliminate the religious employer exemption or to adopt an alternative definition of religious employer, including whether the exemption should be extended to a broader set of religiously-affiliated sponsors of group health plans and group health insurance coverage. For the reasons discussed below, the Departments are adopting the definition in the amended interim final regulations for purposes of these final regulations while also creating a temporary enforcement safe harbor, discussed below. During the temporary enforcement safe harbor, the Departments plan to develop and propose changes to these final regulations that would meet two goals—providing contraceptive coverage without cost-sharing to individuals who want it and accommodating non-exempted, non-profit organizations' religious objections to covering contraceptive services as also discussed below.
PHS Act section 2713 reflects a determination by Congress that coverage of recommended preventive services by non-grandfathered group health plans and health insurance issuers without cost sharing is necessary to achieve basic health care coverage for more Americans. Individuals are more likely to use preventive services if they do not have to satisfy cost sharing requirements (such as a copayment, coinsurance, or a deductible). Use of preventive services results in a healthier population and reduces health care costs by helping individuals avoid preventable conditions and receive treatment earlier.
As documented in a report of the Institute of Medicine, “Clinical Preventive Services for Women, Closing the Gaps,” women experiencing an unintended pregnancy may not immediately be aware that they are pregnant, and thus delay prenatal care. They also may not be as motivated to discontinue behaviors that pose pregnancy-related risks (e.g., smoking, consumption of alcohol). Studies show a greater risk of preterm birth and low birth weight among unintended pregnancies compared with pregnancies that were planned.
In addition, there are significant cost savings to employers from the coverage of contraceptives. A 2000 study estimated that it would cost employers 15 to17 percent more not to provide contraceptive coverage in employee health plans than to provide such coverage, after accounting for both the direct medical costs of pregnancy and the indirect costs such as employee absence and reduced productivity.
Furthermore, in directing non-grandfathered group health plans and health insurance issuers to cover preventive services and screenings for women described in HRSA-supported guidelines without cost sharing, Congress determined that both existing health coverage and existing preventive services recommendations often did not adequately serve the unique health needs of women. This disparity places women in the workforce at a disadvantage compared to their male co-workers. Researchers have shown that access to contraception improves the social and economic status of women.
The religious employer exemption in the final regulations does not undermine the overall benefits described above. A group health plan (and health insurance coverage provided in connection with such a plan) qualifies for the exemption if, among other qualifications, the plan is established and maintained by an employer that primarily employs persons who share the religious tenets of the organization. As such, the employees of employers availing themselves of the exemption would be less likely to use contraceptives even if contraceptives were covered under their health plans.
A broader exemption, as urged by some commenters, would lead to more employees having to pay out of pocket for contraceptive services, thus making it less likely that they would use contraceptives, which would undermine the benefits described above. Employers that do not primarily employ employees who share the religious tenets of the organization are more likely to employ individuals who have no religious objection to the use of contraceptive services and therefore are more likely to use contraceptives. Including these employers within the scope of the exemption would subject their employees to the religious views of the employer, limiting access to contraceptives, and thereby inhibiting the use of contraceptive services and the benefits of preventive care.
The Departments note that this religious exemption is intended solely for purposes of the contraceptive services coverage requirement pursuant to PHS Act section 2713 and the companion provisions of ERISA and the Code.
The Departments also note that some group health plans sponsored by employers that do not satisfy the definition of religious employer in these final regulations may be grandfathered health plans
With respect to certain non-exempted, non-profit organizations with religious objections to covering contraceptive services whose group health plans are not grandfathered health plans, guidance is being issued contemporaneous with these final regulations that provides a one-year safe harbor from enforcement by the Departments.
Before the end of the temporary enforcement safe harbor, the Departments will work with stakeholders to develop alternative ways of providing contraceptive coverage without cost sharing with respect to non-exempted, non-profit religious organizations with religious objections to such coverage. Specifically, the Departments plan to initiate a rulemaking to require issuers to offer insurance without contraception coverage to such an employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employer's plan participants (and their beneficiaries) who desire it, with no cost-sharing. Under this approach, the Departments will also require that, in this circumstance, there be no charge for the contraceptive coverage. Actuaries and experts have found that coverage of contraceptives is at least cost neutral when taking into account all costs and benefits in the health plan.
A future rulemaking would be informed by the existing practices of some issuers and religious organizations in the 28 States where contraception coverage requirements already exist, including Hawaii. There, State health insurance law requires issuers to offer plan participants in group health plans sponsored by religious employers that are exempt from the State contraception coverage requirement the option to purchase this coverage in a way that religious employers are not obligated to fund it. It is our understanding that, in practice, rather than charging employees a separate fee, some issuers in Hawaii offer this coverage to plan participants at no charge. The Departments will work with stakeholders to propose and
Nothing in these final regulations precludes employers or others from expressing their opposition, if any, to the use of contraceptives, requires anyone to use contraceptives, or requires health care providers to prescribe contraceptives if doing so is against their religious beliefs. These final regulations do not undermine the important protections that exist under conscience clauses and other religious exemptions in other areas of Federal law. Conscience protections will continue to be respected and strongly enforced.
This approach is consistent with the First Amendment and Religious Freedom Restoration Act. The Supreme Court has held that the First Amendment right to free exercise of religion is not violated by a law that is not specifically targeted at religiously motivated conduct and that applies equally to conduct without regard to whether it is religiously motivated—a so-called neutral law of general applicability. The contraceptive coverage requirement is generally applicable and designed to serve the compelling public health and gender equity goals described above, and is in no way specially targeted at religion or religious practices. Likewise, this approach complies with the Religious Freedom Restoration Act, which generally requires a federal law to not substantially burden religious exercise, or, if it does substantially burden religious exercise, to be the least restrictive means to further a compelling government interest.
Executive Orders 13563 and 12866, among other things, direct 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13563 also states that where “appropriate and permitted by law, each agency may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.” These final regulations have been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, these final regulations have been reviewed by the Office of Management and Budget.
As stated earlier in this preamble, the Departments previously issued amended interim final regulations authorizing an exemption for group health plans and health insurance coverage sponsored by certain religious employers from certain coverage requirements under PHS Act section 2713 (76 FR 46621, August 3, 2011). The Departments have determined that it is appropriate to finalize, without change, these amended interim final regulations authorizing the exemption of group health plans and health insurance coverage sponsored by certain religious employers from having to cover certain preventive health services under the Patient Protection and Affordable Care Act.
The Departments expect that these final regulations will not result in any additional significant burden or costs to the affected entities.
For purposes of the Department of the Treasury, it has been determined that this Treasury decision is not a significant regulatory action for purposes of Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the APA (5 U.S.C. chapter 5) does not apply to these final regulations, and, because these regulations do not impose a collection of information on small entities, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required.
These final regulations are not subject to the requirements of the Paperwork Reduction Act (44 U.S.C. 3501
The Department of the Treasury final regulations are adopted pursuant to the authority contained in sections 7805 and 9833 of the Code.
The Department of Labor final regulations are adopted pursuant to the authority contained in 29 U.S.C. 1027, 1059, 1135, 1161–1168, 1169, 1181–1183, 1181 note, 1185, 1185a, 1185b, 1185c, 1185d, 1191, 1191a, 1191b, and 1191c; sec. 101(g), Public Law104–191, 110 Stat. 1936; sec. 401(b), Public Law 105–200, 112 Stat. 645 (42 U.S.C. 651 note); sec. 512(d), Public Law 110–343, 122 Stat. 3881; sec. 1001, 1201, and 1562(e), Public Law 111–148, 124 Stat. 119, as amended by Public Law 111–152, 124 Stat. 1029; Secretary of Labor's Order 3–2010, 75 FR 55354 (September 10, 2010).
The Department of Health and Human Services final regulations are adopted pursuant to the authority contained in sections 2701 through 2763, 2791, and 2792 of the PHS Act (42 USC 300gg through 300gg-63, 300gg-91, and 300gg-92), as amended.
Excise taxes, Health care, Health insurance, Pensions, Reporting and recordkeeping requirements.
Continuation coverage, Disclosure, Employee benefit plans, Group health plans, Health care, Health insurance, Medical child support, Reporting and recordkeeping requirements.
Health care, Health insurance, Reporting and recordkeeping requirements, and State regulation of health insurance.
Accordingly, 26 CFR part 54 is amended as follows:
26 U.S.C. 7805. * * *
Section 54.9815–2713 also issued under 26 U.S.C. 9833. * * *
(a)
(i) [Reserved]
(ii) [Reserved]
(iii) [Reserved]
(iv) With respect to women, to the extent not described in paragraph (a)(1)(i) of § 54.9815–2713T, preventive care and screenings provided for in binding comprehensive health plan coverage guidelines supported by the Health Resources and Services Administration and developed in accordance with 45 CFR 147.130(a)(1)(iv).
(2)
(3)
(4)
(5)
(b)
(c)
(d)
29 CFR part 2590 is amended as follows:
29 U.S.C. 1027, 1059, 1135, 1161–1168, 1169, 1181–1183, 1181 note, 1185, 1185a, 1185b, 1185c, 1185d, 1191, 1191a, 1191b, and 1191c; sec. 101(g), Public Law 104–191, 110 Stat. 1936; sec. 401(b), Public Law 105–200, 112 Stat. 645 (42 U.S.C. 651 note); sec. 512(d), Public Law 110–343, 122 Stat. 3881; sec. 1001, 1201, and 1562(e), Public Law 111–148, 124 Stat. 119, as amended by Public Law 111–152, 124 Stat. 1029; Secretary of Labor's Order 3–2010, 75 FR 55354 (September 10, 2010).
2701 through 2763, 2791, and 2792 of the Public Health Service Act (42 U.S.C. 300gg through 300gg–63, 300gg–91, and 300gg–92), as amended.
Pension Benefit Guaranty Corporation.
Final rule.
This final rule amends the Pension Benefit Guaranty Corporation's regulation on Benefits Payable in Terminated Single-Employer Plans to prescribe interest assumptions under the regulation for valuation dates in March 2012. The interest assumptions are used for paying benefits under terminating single-employer plans covered by the pension insurance system administered by PBGC.
Effective March 1, 2012.
Catherine B. Klion (
PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's Web site (
PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.
The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for March 2012.
The March 2012 interest assumptions under the benefit payments regulation will be 1.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for February 2012, these interest assumptions are unchanged.
PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the
Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during March 2012, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
In consideration of the foregoing, 29 CFR part 4022 is amended as follows:
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of the
This regulation is effective February 15, 2012. Objections and requests for hearings must be received on or before April 16, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA–HQ–OPP–2010–0099. All documents in the docket are listed in the docket index available at
Susanne Cerrelli, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–8077; email address:
You may be potentially affected by this action if you are an agricultural
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2010–0099 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 16, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA–HQ–OPP–2010–0099, by one of the following methods:
•
•
•
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B) of FFDCA, in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C) of FFDCA, which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. * * *” Additionally, section 408(b)(2)(D) of FFDCA requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.
Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Bio-ferm GmbH has proposed to register two end-use products (EPs) containing equal parts of
The Agency has determined that, for preharvest uses, all mammalian toxicology data requirements submitted to support the petition to exempt residues of
The product analysis data demonstrated that
1.
2
3
In a second acute subcutaneous toxicity/pathogenicity study (MRID 47871808), male and female rats were injected with
4.
5.
6.
7
8.
9.
10.
11.
In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).
Should this microbial pesticide be present on food, the acute toxicity, infectivity, and pathogenicity data, as well as the data demonstrating the lack of growth at human body temperature submitted for
The use sites for these products include residential garden sites and agricultural sites.
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”
The likelihood of adverse cumulative effects occurring via a common mechanism of toxicity is minimal, based on the lack of toxicity/pathogenicity/infectivity potential of the active ingredients when
FFDCA section 408(b)(2)(C) provides that EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues, and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor. In applying this provision, EPA either retains the default value of 10X or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.
Based on the acute toxicity and pathogenicity data summarized in Unit III.B., EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to the residues of
An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for
EPA concludes that there is a reasonable certainty that no harm will result to the United States population, including infants and children, from aggregate exposure to residues of
This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
An exemption from the requirement of a tolerance is established for residues of the microbial pesticides,
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of
This regulation is effective February 15, 2012. Objections and requests for hearings must be received on or before April 16, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA–HQ–OPP–2010–0807. All documents in the docket are listed in the docket index available at
Jeannine Kausch, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 347–8920; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2010–0807 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 16, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA–HQ–OPP–2010–0807, by one of the following methods:
•
•
•
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to section 408(c)(2)(B) of FFDCA, in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C) of FFDCA, which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. * * *” Additionally, section 408(b)(2)(D) of FFDCA requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] * * * residues and other substances that have a common mechanism of toxicity.”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other
Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Although endospores of
1. Endospores attach to the cuticle of a juvenile soybean cyst nematode female.
2. Once a soybean cyst nematode female invades soybean roots,
3. Primary and secondary microcolonies of
In light of the demonstrated nematicidal capabilities and host specificity of
All applicable mammalian toxicology data requirements supporting the request for an exemption from the requirement of a tolerance for residues of
In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).
Given
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance exemption, EPA consider “available information concerning the cumulative effects of [a particular pesticide's] * * * residues and other substances that have a common mechanism of toxicity.”
No mechanism of toxicity in mammals has been identified for
FFDCA section 408(b)(2)(C) provides that, in considering the establishment of a tolerance or tolerance exemption for a pesticide chemical residue, EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues, and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor. In applying this provision, EPA either retains the default value of 10X or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.
Based on the acute toxicity and pathogenicity data discussed in Unit III.B., as well as
Moreover, based on the same data and EPA analysis as presented in this unit, the Agency is able to conclude that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to the residues of
An analytical method is not required for enforcement purposes for the reasons stated in this document and because EPA is establishing an exemption from the requirement of a tolerance without any numerical limitation.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. In this context, EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for
Two comments were submitted. An anonymous commenter (EPA–HQ–OPP–2010–0012–0019) generally expressed opposition to EPA granting tolerance exemptions to several petitioners, including Pasteuria Bioscience, Inc. Specifically, this commenter mentioned concern with the prevalence of many toxic chemicals in the environment and lack of information regarding how such chemicals combine. Another commenter (EPA–HQ–OPP–2010–0905–0003) also expressed opposition to granting tolerances and tolerance exemptions for several chemicals, including
Data provided by the petitioner demonstrated that
Two modifications have been made to the requested tolerance exemption. First, since Pasteuria Bioscience, Inc. already created a unique isolate identifier (i.e., Pn1) for
EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of
This final rule establishes a tolerance exemption under section 408(d) of FFDCA in response to a petition submitted to EPA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, EPA has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, EPA has determined that Executive Order 13132, entitled
This action does not involve any technical standards that would require EPA consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
An exemption from the requirement of a tolerance is established for residues of
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes time-limited tolerances for residues of spirotetramat in or on onion, dry bulb under section 408(l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(l)(6). This action is in response to EPA's granting of an emergency exemption under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of the pesticide on dry bulb onions. This regulation establishes a maximum permissible level for residues of spirotetramat in or on these commodities. The time-limited tolerances expire on December 31, 2014.
This regulation is effective February 15, 2012. Objections and requests for hearings must be received on or before April 16, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA–HQ–OPP–2011–0783. All documents in the docket are listed in the docket index available in
Libby Pemberton, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–9364; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under section 408(g) of the FFDCA, 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2011–0783 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 16, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA–HQ–OPP–2011–0783, by one of the following methods:
•
•
•
EPA, on its own initiative, in accordance with sections 408(e) and 408(l)(6) of FFDCA, 21 U.S.C. 346a(e) and 346a(1)(6), is establishing time-limited tolerances for combined residues of spirotetramat, including its metabolites and degradates, in or on onion, dry bulb at 0.3 parts per million (ppm). This time-limited tolerance expires on December 31, 2014.
Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on FIFRA section 18 related time-limited tolerances to set binding precedents for the application of section 408 of FFDCA and the safety standard to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. * * *”
Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” EPA has established regulations governing such emergency exemptions in 40 CFR part 166.
Thrips rasp the onion tissue and drain the exuding sap, causing stunted and deformed plants. High thrip populations during bulbing can reduce yield. In addition, high thrip populations and the associated damage can shift the onion bulb size distribution downward and reduce onion quality. Of even more concern, thrips can infect plants with iris yellow spot virus. The virus in conjunction with thrips feeding activity can result in an average 25–35%
After having reviewed the submissions, EPA determined that an emergency condition exists for eleven states (Colorado, Idaho, Michigan, Minnesota, Nevada, New York, Oregon, Texas, Utah, Washington, and Wisconsin), and that the criteria for approval of emergency exemptions are met. EPA has authorized specific exemptions under FIFRA section 18 for the use of spirotetramat on dry bulb onion for control of onion thrips (
As part of its evaluation of the emergency exemption applications, EPA assessed the potential risks presented by residues of spirotetramat in or on onion, dry bulb. In doing so, EPA considered the safety standard in section 408(b)(2) of FFDCA, and EPA decided that the necessary tolerance under section 408(l)(6) of FFDCA would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in section 408(l)(6) of FFDCA. Although this time-limited tolerance expires on December 31, 2014, under section 408(l)(5) of FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on onion, dry bulb after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this time-limited tolerance at the time of that application. EPA will take action to revoke this time-limited tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.
Because this time-limited tolerance is being approved under emergency conditions, EPA has not made any decisions about whether spirotetramat meets FIFRA's registration requirements for domestic use on dry bulb onions or whether permanent tolerances for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerance decision serves as a basis for registration of spirotetramat by a State for special local needs under FIFRA section 24(c). Nor does this tolerance by itself serve as the authority for persons in any State other than the 11 states listed in this unit to use this pesticide on the applicable crops under FIFRA section 18 absent the issuance of an emergency exemption applicable within that State. For additional information regarding the emergency exemption for spirotetramat, contact the Agency's Registration Division at the address provided under
Consistent with the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure expected as a result of this emergency exemption request and the time-limited tolerances for combined residues of spirotetramat and its metabolites and degradates on onion, dry bulb at 0.3 ppm. EPA's assessment of exposures and risks associated with establishing time-limited tolerances follows.
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for spirotetramat used for human risk assessment is discussed in Unit III. of the final rules published in the
1.
i.
ii.
iii.
iv.
2.
Based on the FIRST and Screening Concentration in Ground Water (SCI–GROW) models, the estimated drinking water concentrations (EDWCs) of spirotetramat for acute exposures are estimated to be 0.212 parts per billion (ppb) for surface water; and 3.96 × 10
For chronic exposures for non-cancer assessments, the EDWCs are estimated to be 1.37 × 10
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.
For acute dietary risk assessment, the most conservative water concentration value of 0.212 ppb was used to assess the contribution to drinking water based on the use of spirotetramat on pome fruit (0.4 lb ai/A/year).
For chronic dietary risk assessment, the most conservative water concentration of value 1.37 × 10
3.
4.
EPA has not found spirotetramat to share a common mechanism of toxicity with any other substances, and spirotetramat does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that spirotetramat does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
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2.
3.
i. The toxicity database for spirotetramat is complete except for an immunotoxicity study and a subchronic neurotoxicity study which are considered to be outstanding due to recent amendments to the data requirements in 40 CFR part 158. Despite the absence of these studies, other related studies indicate that the immunotoxicity study and subchronic neurotoxicity study are unlikely to show risks to infants and children that would warrant an additional safety factor. The only indication of possible immunotoxicity in the toxicology database for spirotetramat is a 90-day oral toxicity study in dogs that shows effects in the thymus gland, an organ of the immune system. However, the endpoint selected for risk assessment is protective against these thyroid effects, as it was based on accelerated thymus involution and decreased thyroid hormone levels in the dog. Moreover, thymus involution has been demonstrated to occur in animals when the thyroid is induced to decrease hormone levels, so it is reasonable to conclude that the thymus involution in these dogs was secondary to the thyroid effects, rather than a direct effect on the immune system. The dose at which these effects were observed was chosen as a point of departure because there was some consistency of dose and effect seen across the subchronic and chronic toxicity studies. However, the effects occurred in relatively few animals and thus selection of this endpoint is considered a very protective point of departure; it is at least tenfold lower than any other potential point of departure. With respect to immunotoxicity, no immunotoxic effects were seen in rats or mice, the species in which immunotoxicity studies are conducted. Thus, the Agency does not believe that conducting a functional immunotoxicity study in any rodent species will result in a lower POD than that currently used for overall risk assessment. For this reason and because the current POD is considered
ii. EPA has concluded that spirotetramat is not a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity. Although a subchronic neurotoxicity study is now required as part of the revisions to 40 CFR part 158, the existing toxicological database indicates that spirotetramat is not a neurotoxic chemical in mammals. The only clinical signs at any dose in the acute neurotoxicity study were staining of the fur or perianal region with urine and decreased motor activity. The urine staining that was identified is not considered a neurotoxic effect and was likely due to a colored metabolite that was excreted into the urine or feces or to a change in the pH of the urine due to an excreted metabolite. The decreased motor activity observed is not considered evidence of neurotoxicity because there were no effects on movement or gait and there were no confirmatory findings of neurological pathology. Thus, both of these effects are considered signs of general toxicity (malaise). Further, the effects seen in the acute neurotoxicity study are not corroborated by any other study in the database. Although brain dilation was found in one dog in the one-year dog study, EPA concluded that this effect was most likely not caused by administration of spirotetramat given evidence showing this to be a congenital anomaly in the test species, and because there is no other evidence of brain pathology in the database. Finally, the conclusion that spirotetramat is not a neurotoxic chemical is supported by the fact that the acute, subchronic and developmental neurotoxcity studies available for structurally-related compounds (spirodiclofen and spiromesifen) do not show evidence of neurotoxicity in adults or young.
iii. There is no evidence that spirotetramat results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dataset used to establish a tolerance for spirotetramat and its metabolites on onion, bulb, subgroup 3A–07 consisted of field trial data representing application rates of ~0.26 a.i./A (Northern EU, 100 OD formulation) with a 7-day PHI. As specified by the
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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2.
3.
4.
5.
6.
Adequate enforcement methodology (high performance liquid chromatography with tandem mass spectrometry (HPLC–MS/MS)) is available to enforce the tolerance expression.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The
Therefore, time-limited tolerances are established for combined residues of spirotetramat, including its metabolites and degradates in or on onion, dry bulb at 0.3 ppm. These tolerances expire on December 31, 2014.
This final rule establishes tolerances under sections 408(e) and 408(l)(6) of FFDCA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
Since tolerances and exemptions that are established in accordance with sections 408(e) and 408(l)(6) of FFDCA, such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(b)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of indoxacarb in or on egg, poultry fat, poultry meat, and poultry meat byproducts. E.I. du Pont de Nemours and Company requested these
This regulation is effective February 15, 2012. Objections and requests for hearings must be received on or before April 16, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA–HQ–OPP–2011–0578. All documents in the docket are listed in the docket index available at
Julie Chao, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460–0001; telephone number: (703) 308–8735; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2011–0578 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 16, 2012
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA–HQ–OPP–2011–0578, by one of the following methods:
•
•
•
In the
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical
Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for indoxacarb including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with indoxacarb follows.
In the
Since EPA considered the additional uses proposed by PP 1F7873 in its most recent risk assessments, establishing tolerances on these commodities will not change the estimated aggregate risks resulting from use of indoxacarb, as discussed in the
Adequate enforcement methodology (high-performance liquid chromatography (HPLC)/column switching/ultraviolet (UV) method AMR 2712–93 with confirmation/specificity provided by gas chromatography (GC)/mass-selective detector method AMR 3493–95, Supplement No. 4) is available to enforce the tolerance expression.
The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has established MRLs for indoxacarb in or on eggs at 0.02 mg/kg; poultry meat at 0.01 mg/kg; and poultry, edible offal at 0.01 mg/kg. These MRLs are lower than the poultry tolerance levels determined appropriate for indoxacarb in the United States. The U.S. residue definition for poultry commodities includes indoxacarb, its R-enantiomer, and five metabolites, whereas the Codex residue definition includes only indoxacarb and its R-enantiomer. Because the Codex residue definition and evaluation procedures for livestock commodities differ from those of the United States harmonization of U.S. tolerances with Codex MRLs is not possible for poultry commodities.
Therefore, tolerances are established for residues of indoxacarb, (
This final rule establishes tolerances under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(2) Tolerances are established for residues of indoxacarb, including its metabolites and degradates, in or on the commodities in the table below. Compliance with the tolerance levels specified below is to be determined by measuring only the sum of indoxacarb, (S)-methyl-7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)-phenyl]amino]carbonyl]indeno[1,2e] [1,3,4]oxadiazine-4a(3
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS closes the commercial sector for golden tilefish in the exclusive economic zone (EEZ) of the South Atlantic. This closure is necessary to protect the golden tilefish resource.
This rule is effective 12:01 a.m., local time, February 17, 2012, until 12:01 a.m., local time, January 1, 2013.
Catherine Bruger, telephone: 727–824–5305, email:
The snapper-grouper fishery of the South Atlantic is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act by regulations at 50 CFR part 622.
The commercial quota for golden tilefish in the South Atlantic is 282,819 lb (128,284 kg) for the current fishing year, January 1 through December 31, 2012, as specified in 50 CFR 622.42(e)(2).
Under 50 CFR 622.43(a), NMFS is required to close the commercial sector for golden tilefish when its quota has been reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial quota for South Atlantic golden tilefish will have been reached by February 17, 2012. Accordingly, the commercial sector for South Atlantic golden tilefish is closed effective 12:01 a.m., local time, February 17, 2012, until 12:01 a.m., local time, January 1, 2013.
The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having golden tilefish onboard must have landed and bartered, traded, or sold such golden tilefish prior to 12:01 a.m., local time, February 17, 2012. During the closure, the bag limit and possession limits specified in 50 CFR 622.39(d)(1)(ii) and (d)(2), respectively, apply to all harvest or possession of golden tilefish in or from the South Atlantic EEZ, and the sale or purchase of golden tilefish taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to the sale or purchase of golden tilefish that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, February 17, 2012, and were held in cold storage by a dealer or processor. For a person on board a vessel for which a Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery has been issued, the sale and purchase provisions of the commercial closure for golden tilefish would apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.43(a)(5)(ii).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds that the need to immediately implement this action to close the commercial sector for golden tilefish constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule itself has been subject to notice and comment, and all that remains is to notify the public of the closure.
Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect golden tilefish since the capacity of the fishing fleet allows for rapid harvest of the quota. Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established quota.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Nuclear Regulatory Commission.
Draft regulatory guide; re-opening of comment period.
On December 13, 2011 (76 FR 77431), the U.S. Nuclear Regulatory Commission (NRC) re-issued Draft Regulatory Guide, DG–4014, “Decommissioning Planning During Operations” in the
Submit comments by March 30, 2012. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. Although a time limit is given, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
Please include Docket ID NRC–2011–0286 in the subject line of your comments. Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site,
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed. You may submit comments by any one of the following methods:
•
•
•
You can access publicly available documents related to this regulatory guide using the following methods:
•
• NRC's Agencywide Documents Access and Management System (ADAMS): Publicly available documents created or received at the NRC are available online in the NRC Library at
•
James C. Shepherd, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: 301–492–6712, email:
On December 13, 2011 (76 FR 77431), the NRC published a notice of issuance and availability of Draft Regulatory Guide DG–4014, “Decommissioning Planning During Operations.” This DG refers to NUREG–1757 Volume 3, Revision 1, “Financial Assurance, Recording Keeping, and Timeliness,” that provides guidance on the financial aspects of the Decommissioning Planning Rule. The NUREG is scheduled for publication on February 27, 2012. Therefore the comment submittal period for DG–4014 is extended from the original date of February 10, 2012 to March 30, 2012.
For the U.S. Nuclear Regulatory Commission.
U.S. Consumer Product Safety Commission.
Comment request.
The Consumer Product Safety Commission (“CPSC” or “Commission” or “we”) is considering whether a new performance safety standard is needed to address an unreasonable risk of injury associated with table saws. We are conducting this proceeding under the authority of the Consumer Product Safety Act (“CPSA”), 15 U.S.C. 2051–2084. In the
Submit comments by March 16, 2012.
You may submit comments, identified by Docket No. CPSC–2011–0074, by any of the following methods:
Submit electronic comments in the following way:
To ensure timely processing of comments, the Commission is no longer accepting comments submitted by electronic mail (email), except through:
Submit written submissions in the following way:
Caroleene Paul, Directorate for Engineering Sciences, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; telephone (301) 987–2225; fax (301) 869–0294; email:
On April 15, 2003, Stephen Gass, David Fanning, and James Fulmer, et al. (“petitioners”) requested that we require performance standards for a system to reduce or prevent injuries from contact with the blade of a table saw. The petitioners cited estimates of 30,000 annual injuries involving table saws, with approximately 90 percent of the injuries occurring to the fingers and hands, and 10 percent of the injuries resulting in amputation. The petitioners alleged that current table saws pose an unacceptable risk of severe injury because they are inherently dangerous and lack an adequate safety system to protect the user from accidental contact with the blade.
In the
The ANPR contained information describing the product, the market for table saws, the incident data, economic considerations, existing standards, and regulatory alternatives (76 FR at 62679 through 62683). The ANPR identified three regulatory alternatives: (1) A voluntary standard addressing risks associated with table saw blade contact injuries; (2) a mandatory rule establishing performance requirements that would address table saw blade contact injuries; or (3) a labeling rule requiring specified warnings and instructions to address table saw blade contact injuries (76 FR at 62683). The ANPR also invited comment on 25 topics or issues. For the reader's convenience, we list those topics or issues here:
1. Written comments with respect to the risk of injury identified by the Commission, the regulatory alternatives being considered, and other possible alternatives for addressing the risk;
2. Any existing standard or portion of a standard that could be issued as a proposed regulation;
3. A statement of intention to modify or develop a voluntary standard to address the risk of injury discussed in this notice, along with a description of a plan (including a schedule) to do so;
4. Studies, tests, or surveys that have been performed to analyze table saw blade contact injuries, severity of injuries, and costs associated with the injuries;
5. Studies, tests, or surveys that analyze table saw use in relation to approach/feed rates, kickback, and blade guard use and effectiveness;
6. Studies, tests, or descriptions of new technologies, or new applications of existing technologies that can address blade contact injuries, and estimates of costs associated with incorporation of new technologies or applications;
7. Estimated manufacturing cost, per table saw, of new technologies or applications that can address blade contact injuries;
8. Expected impact of technologies that can address blade contact injuries on wholesale and retail prices of table saws;
9. Expected impact of technologies that can address blade contact injuries on utility and convenience of use;
10. Information on effectiveness or user acceptance of new blade guard designs;
11. Information on manufacturing costs of new blade guard designs;
12. Information on usage rates of new blade guard designs;
13. Information on U.S shipments of table saws prior to 2002, and between 2003 and 2005;
14. Information on differences between portable bench saws, contractor saws, and cabinet saws in frequency and duration of use;
15. Information on differences between saws used by consumers, saws used by schools, and saws used commercially—in frequency and duration of use;
16. Studies, research, or data on entry information of materials being cut at blade contact (
17. Information that supports or disputes preliminary economic analyses on the cost of employing technologies that reduce blade contact injuries on table saws;
18. Studies, research, or data on appropriate indicators of performance for blade-to-skin requirements that mitigate injury;
19. Studies, research, or data that validates human finger proxies for skin-to-blade tests;
20. Studies, research, or data on detection/reaction systems that have been employed to mitigate blade contact injuries;
21. Studies, research, or data on the technical challenges associated with developing new systems that could be employed to mitigate blade contact injuries;
22. Studies, research, or data on guarding systems that have been employed to prevent or mitigate blade contact injuries;
23. Studies, research, or data on kickback of a work piece during table saw use;
24. The costs and benefits of mandating a labeling or instructions requirement; and
25. Other relevant information regarding the addressability of blade contact injuries.
The ANPR requested comments by December 12, 2011.
On November 3, 2011, the Power Tool Institute, Inc. (“PTI”) requested a 60-day extension of the comment period. We granted their request and, in the
On February 1, 2012, PTI requested another 30-day extension in order for PTI to review Freedom of Information Act requests submitted to the CPSC. On February 8, 2012, the Commission voted (3–1) to grant the request. Through this notice, we are reopening the comment period to give all interested parties additional time to prepare their responses to the ANPR. Thus, the comment period for the ANPR is reopened until March 16, 2012.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations that provide guidance on the eligibility of tax return preparers to obtain a preparer tax identification number (PTIN). These proposed regulations expand the list of tax return preparers who may obtain and renew a PTIN. The proposed regulations additionally provide guidance concerning those tax forms submitted to the Internal Revenue Service that are considered returns of tax or claims for refund of tax for purposes of the requirement to obtain a PTIN and related provisions. This document also invites comments from the public regarding these proposed regulations.
Written or electronic comments and requests for a public hearing must be received by May 15, 2012.
Send submissions to: CC:PA:LPD:PR (REG–124791–11), Room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG–124791–11), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Stuart Murray at (202) 622–4940; concerning submissions of comments and requests for a hearing, Oluwafunmilayo (Funmi) Taylor at (202) 622–7180 (not a toll-free numbers).
This document contains proposed amendments to regulations under section 6109 of the Internal Revenue Code (Code) relating to the identifying number of a tax return preparer and furnishing a tax return preparer's identifying number on tax returns and claims for refund of tax. The Department of Treasury and the Internal Revenue Service published in the
In particular, the final regulations provided that for tax returns or claims for refund of tax filed after December 31, 2010, the identifying number of a tax return preparer is a PTIN or other identifying number that the IRS prescribes in forms, instructions, or other guidance. The final regulations also provided that after December 31, 2010, a tax return preparer must have a PTIN that is applied for and renewed in the manner the IRS prescribes. The final regulations added § 1.6109–2(d) to the regulations under title 26, providing that to obtain a PTIN or other prescribed identifying number, a tax return preparer must be an attorney, certified public accountant, enrolled agent, or registered tax return preparer authorized to practice before the IRS under Treasury Department Circular No. 230, 31 CFR part 10 (which Treasury and the IRS amended in final regulations published in the
Although the rules in the final regulations under section 6109 went into effect on January 1, 2011, § 1.6109–2(h) allows Treasury and the IRS to prescribe, through forms, instructions, or other appropriate guidance, exceptions to the rules in § 1.6109–2, as necessary, in the interest of effective tax administration. Section 1.6109–2(h) also provides that the IRS may specify through other appropriate guidance “specific returns, schedules, and other forms that qualify as tax returns or claims for refund for purposes of these regulations.”
After § 1.6109–2 was amended, Treasury and the IRS issued Notice 2011–6 (2011 IRB 315 January 17, 2011) (see § 601.601(d)(2)(ii)(
Also pursuant to the authority in § 1.6109–2(h), the IRS in Notice 2011–6 specified that all tax returns, claims for refund, and other tax forms submitted to the IRS are considered tax returns or claims for refund of tax for purposes of § 1.6109–2 unless the IRS provides otherwise. Section 1.03 of Notice 2011–6 explains that the IRS interprets the term “tax forms” broadly for this purpose, and a tax return preparer must obtain a PTIN to prepare for compensation, or to assist in preparing for compensation, all or substantially all of “any form” except those forms that the IRS explicitly excludes. Notice 2011–6 lists the forms by number and title that are currently excluded.
Treasury and the IRS propose to incorporate the relevant provisions of Notice 2011–6 discussed earlier in this preamble in § 1.6109–2. The proposed regulations provide for two additional categories of tax return preparers to obtain a PTIN (or other identifying number the IRS prescribes), namely, certain supervised tax return preparers and tax return preparers who prepare tax returns and claims for refund that are not covered by a competency examination. As to the first category, the proposed regulations provide that any individual 18 years of age or older is eligible for a PTIN if the individual is supervised as a tax return preparer by an attorney, certified public accountant, enrolled agent, enrolled retirement plan agent, or enrolled actuary authorized to practice before the IRS under Circular 230. The proposed regulations provide that the supervision must be in accordance with any requirements the IRS may prescribe; these requirements are currently set forth in § 1.02a of Notice 2011–6.
As to the second category, the proposed regulations provide that any individual 18 years of age or older is eligible for a PTIN if the individual exclusively prepares tax returns and claims for refund that are not covered by any minimum competency test or tests that the IRS prescribes for registered tax return preparers. To be eligible for a PTIN, an individual must certify, at the time and in whatever manner the IRS may prescribe, that the individual only prepares tax returns and claims for refund that are not covered by a minimum competency test. Under the proposed regulations, the individual must also comply with any other eligibility requirements that the IRS may prescribe; these requirements are currently set forth in § 1.02b of Notice 2011–6.
The proposed regulations provide that for purposes of § 1.6109–2, the terms
These regulations are effective on the date that final regulations are published in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. Treasury and the IRS request comments on all aspects of the proposed rules. All comments that are submitted by the public will be available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person who timely submits comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the
The principal author of these proposed regulations is Stuart Murray of the Office of the Associate Chief Counsel, Procedure and Administration.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 1.6109–2 also issued under 26 U.S.C. 6109(a)
(a) * * * (1) * * * For purposes of this section only, the terms
(d)(1) Beginning after December 31, 2010, all tax return preparers must have a preparer tax identification number or other prescribed identifying number that was applied for and received at the time and in the manner, including the payment of a user fee, as may be prescribed by the Internal Revenue Service in forms, instructions, or other appropriate guidance.
(2) Except as provided in paragraph (h) of this section, to obtain a preparer tax identification number or other prescribed identifying number, a tax return preparer must be one of the following:
(i) An attorney;
(ii) A certified public accountant;
(iii) An enrolled agent;
(iv) A registered tax return preparer authorized to practice before the Internal Revenue Service under 31 U.S.C. 330 and the regulations thereunder;
(v) An individual 18 years of age or older who is supervised, in the manner the Internal Revenue Service prescribes in forms, instructions, or other appropriate guidance, as a tax return preparer by an attorney, certified public accountant, enrolled agent, enrolled retirement plan agent, or enrolled actuary authorized to practice before the Internal Revenue Service under 31 U.S.C. 330 and the regulations thereunder; or
(vi) An individual 18 years of age or older who certifies that the individual is a tax return preparer exclusively with respect to tax returns and claims for refund of tax that are not covered, at the time the tax return preparer applies for or renews the number, by a minimum competency examination prescribed by the Internal Revenue Service in forms, instructions, or other appropriate guidance. An individual must comply with any requirements at the time and in the manner that the Internal Revenue Service may prescribe in forms, instructions, or other appropriate guidance.
(f) As may be prescribed in forms, instructions, or other appropriate guidance, the Internal Revenue Service may conduct a Federal tax compliance check and a suitability check on a tax return preparer who applies for or renews a preparer tax identification number or other prescribed identifying number.
(h) The Internal Revenue Service, through forms, instructions, or other appropriate guidance, may prescribe exceptions to the requirements of this section, including the requirement that an individual be authorized to practice before the Internal Revenue Service before receiving a preparer tax identification number or other prescribed identifying number, as necessary in the interest of effective tax administration.
(i)
Environmental Protection Agency (EPA).
Notice of filing of petition and request for comment.
This document announces the Agency's receipt of an initial filing of a pesticide petition requesting the amendment of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before March 16, 2012.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2010–0048 and the pesticide petition number (PP), by one of the following methods:
•
•
•
Gina Burnett, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 605–0513; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
3.
EPA is announcing receipt of a pesticide petition filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the modification of a regulation in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the request before responding to the petitioner. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petition described in this document contains data or information prescribed in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petition. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on this pesticide petition.
Pursuant to 40 CFR 180.7(f), a summary of the petition that is the subject of this document, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available on-line at
As specified in FFDCA section 408(d)(3), (21 U.S.C. 346a(d)(3)), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the modification of regulations for residues of pesticides in or on food various commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule; extension of comment period.
EPA is extending the public comment period for the proposed changes to the 1988 underground storage tank (UST) technical, financial responsibility, and state program approval regulations published in the
Comments must be received on or before April 16, 2012.
Submit your comments, identified by Docket ID No. EPA–HQ–UST–2011–0301, by one of the following methods:
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•
•
•
Elizabeth McDermott, OSWER/OUST (5401P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: 703–603–7175; email address:
This document extends the public comment period established in the
Environmental protection, Administrative practice and procedures, Confidential business information, Groundwater, Hazardous materials, Petroleum, Reporting and recordkeeping requirements, Underground storage
Environmental protection, Administrative practice and procedures, Hazardous materials, Petroleum, State program approval, Underground storage tanks.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce
Advance notice of proposed rulemaking; request for comments.
NMFS is considering promulgating regulations under the authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFC Implementation Act) to prohibit the transshipment of highly migratory species (HMS) on the high seas to or from certain types of U.S. vessels that operate in the area of application of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention). These regulations would implement certain decisions of the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Commission or WCPFC) in order to meet the obligations of the United States under the Convention. NMFS issues this advance notice of proposed rulemaking to solicit information and comments about HMS transshipment activities by U.S. vessels, and the potential effects of a prohibition on high seas transshipments in the Convention Area.
Comments must be submitted in writing by April 16, 2012.
Comments on this advance notice of proposed rulemaking (ANPR), identified by NOAA–NMFS–2012–0001, may be sent to either of the following addresses:
•
•
Rini Ghosh, NMFS PIRO, (808) 944–2273.
This advance notice of proposed rulemaking is also accessible at
The Convention Area comprises the majority of the western and central Pacific Ocean. A map showing the boundaries of the Convention Area can be found on the WCPFC Web site at:
As a Contracting Party to the Convention and a Member of the WCPFC, the United States is obligated to implement the decisions of the WCPFC. The WCPFC Implementation Act (16 U.S.C. 6901
At its Sixth Regular Annual Session, in December 2009, the WCPFC adopted Conservation and Management Measure (CMM) 2009–06, “Conservation and Management Measure on the Regulation of Transhipment.” The CMM, available with other decisions of the WCPFC at
Under the Convention, CCMs are obligated with limited exceptions to prohibit transshipments at sea involving purse seine vessels in the Convention Area. NMFS has implemented this prohibition (see 50 CFR 300.216(b)). CMM 2009–06 contains a provision obligating CCMs to prohibit their vessels (other than purse seine vessels) from transshipping HMS on the high seas in the Convention Area, subject to certain considerations. The prohibition does not apply to vessels for which the flag CCM has determined that it is impracticable for them to operate without being able to transship on the high seas, and has advised the WCPFC of such. Paragraph 37 of CMM 2009–06 sets forth interim guidelines for CCMs to use in making such determinations. CMM 2009–06 calls for the WCPFC to consider adopting definitive guidelines in 2012.
Under the interim guidelines, vessels are to be excepted from the prohibition on transshipment on the high seas when the flag CCM determines that: (1) The prohibition of transshipment on the high seas would cause a significant
Pursuant to a number of fisheries regulations, NMFS collects data from vessel owners and operators on some transshipment activities. However, the data do not cover all transshipment activities that could be subject to this regulation; they do not identify the locations of transshipments (e.g., with respect to in-port versus at-sea, on the high seas versus in waters under national jurisdiction, and inside versus outside the Convention Area), and the types of data collected differ among the fishing fleets. Accordingly, the available data may not provide complete information on historical transshipment activities by U.S. vessels on the high seas in the Convention Area.
Based on the best available data, NMFS is aware that from 1993–2009 an average of 12 transshipments per year were conducted by the U.S. longline fleets operating in the area of application of the Convention, excluding transshipments involving the receipt of only shark fins from foreign-flagged vessels—an activity that was curtailed after the passage of the Shark Finning Prohibition Act in 2000. It is likely that most of these transshipments took place at sea, but it is unknown how many of these transshipments took place on the high seas. It also appears that these transshipments involved vessels in the Hawaii-based longline fleet and the American Samoa-based longline fleet.
NMFS data indicate that U.S. albacore troll vessels operating in the Convention Area conduct at-sea transshipments. For example, from 1990–2004 an average of 49 transshipments per year were conducted by U.S. albacore troll vessels in the area of application of the Convention. It is likely that all of these transshipments took place on the high seas. The available data indicate that no U.S. albacore troll vessel has transshipped at sea in the Convention Area since 2004.
NMFS has no information on high seas transshipments in the Convention Area for vessels in the pole-and-line, handline, tropical troll, or any other HMS fleets.
NMFS is issuing this advance notice of proposed rulemaking to seek public comment on transshipment activities by U.S. HMS fishing fleets in the Convention Area and the impacts that a prohibition on high seas transshipment would have on fishing operations. NMFS would like information that would help it apply the interim guidelines of CMM 2009–06 to determine whether it would be impracticable for certain fishing vessels to operate without being able to transship on the high seas in the Convention Area. In particular, NMFS would like to receive information and comments from potentially affected entities and others on the following: (1) Transshipment activity that has occurred on the high seas in the Convention Area in the past; (2) transshipment activity that presently takes place on the high seas in the Convention Area; (3) transshipment activity that is likely to take place or is anticipated to take place on the high seas in the Convention Area in the future; (4) changes to fishing patterns and practices that could be caused by a prohibition on high seas transshipment in the Convention Area; and (5) the effects (economic or otherwise) that could be caused by a prohibition on high seas transshipment in the Convention Area.
NMFS will consider the information and comments received in order to determine how best to implement the high seas prohibition provision of CMM 2009–06 and any applicable exceptions.
This advance notice of proposed rulemaking has been determined to be not significant for the purposes of Executive Order 12866.
16 U.S.C. 6901
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations under the authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFC Implementation Act) to implement requirements for U.S. fishing vessels used for commercial fishing that offload or receive transshipments of highly migratory species (HMS), U.S. fishing vessels used for commercial fishing that provide bunkering or other support services to fishing vessels, and U.S. fishing vessels used for commercial fishing that receive bunkering or engage in other support services, in the area of application of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention). Some of the requirements would also apply to transshipments of fish caught in the area of application of the Convention (Convention Area) and transshipped elsewhere. NMFS also proposes requirements regarding notification of entry into and exit from the “Eastern High Seas Special Management Area” (Eastern SMA) and requirements relating to discards from purse seine fishing vessels. This action is necessary for the United States to implement decisions of the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Commission or WCPFC) and to satisfy its obligations under the Convention, to which it is a Contracting Party.
Comments must be submitted in writing by April 16, 2012.
Comments on this proposed rule, identified by NOAA–NMFS–2011–0281, the environmental assessment (EA), the regulatory impact review (RIR) prepared for the proposed rule, the Pacific Transshipment Declaration
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An initial regulatory flexibility analysis (IRFA) prepared under the authority of the Regulatory Flexibility Act (RFA) is included in the Classification section of the
Copies of the EA, RIR, Pacific Transshipment Declaration Form, and U.S. Purse Seine Discard Form prepared for this proposed rule are available from
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Michael D. Tosatto, Regional Administrator, NMFS PIRO (see address above) and by email to
Rini Ghosh, NMFS PIRO, 808–944–2273.
This proposed rule is also accessible at
The Convention Area comprises the majority of the western and central Pacific Ocean (WCPO). A map showing the boundaries of the Convention Area can be found on the WCPFC Web site at:
As a Contracting Party to the Convention and a Member of the WCPFC, the United States is obligated to implement the decisions of the WCPFC. The WCPFC Implementation Act (16 U.S.C. 6901
This proposed rule would implement provisions adopted by the WCPFC in Conservation and Management Measures (CMMs) 2009–06, 2009–01, 2010–02, and 2009–02. A full discussion of the provisions to be implemented in each CMM is provided below.
At its Sixth Regular Session, in December 2009, the WCPFC adopted CMM 2009–06, “Conservation and Management Measure on the Regulation of Transhipment.” The CMM, available with other decisions of the WCPFC at
CMM 2009–06 is premised on the recognition that unregulated and unreported transshipment of catches of HMS at sea contributes to inaccurate reporting of the catches of such stocks, which contributes to illegal, unreported, and unregulated (IUU) fishing activities. The term transshipment, as specified in the Convention, means the unloading of all or any fish on board a fishing vessel to another fishing vessel either at sea or in port. Provisions of the CMM generally apply to vessel owners and operators that transship HMS covered by the Convention in the Convention Area. Vessel owners and operators undertaking these transshipments must comply with provisions for observer coverage, notice and reporting requirements, and provisions regarding the types of vessels with which transshipments may be conducted. Vessel owners and operators conducting transshipments outside the Convention Area of HMS caught in the Convention Area must also comply with notice and reporting provisions. No provisions of the CMM apply if the fish are both caught and transshipped in archipelagic waters or territorial seas.
The CMM includes provisions that obligate CCMs to do the following: (1) For transshipments of HMS in the Convention Area or HMS caught in the Convention Area, require owners and operators of vessels that offload or receive transshipments, at sea or in port, to complete a transshipment report including specific information detailing the transshipment and the products transshipped; if the transshipment takes place on the high seas or is an emergency transshipment that would otherwise be prohibited, the report must be submitted to the WCPFC within 15 days of the transshipment; (2) require that a notice be submitted to the WCPFC containing specific information in the case of an emergency transshipment of HMS in the Convention Area or HMS caught in the Convention Area that would otherwise be prohibited within 12 hours of the completion of the transshipment by means of a device that can both send and receive data (e.g., fax or email); (3) require that a notice be submitted to the WCPFC containing specific information at least 36 hours prior to each transshipment on the high seas in the Convention Area or of fish caught in the Convention Area and transshipped on the high seas elsewhere by means of a device that can both send and receive data (e.g., fax or email); (4) require that observers be carried on vessels to monitor transshipments at sea in the Convention Area; and (5) prohibit vessels from transshipping to or from a
Under the Convention, CCMs are obligated, with limited exceptions, to prohibit transshipments at sea involving purse seine vessels in the Convention Area. NMFS has implemented this prohibition (see 50 CFR 300.216(b)). CMM 2009–06 also requires CCMs to prohibit transshipments at sea involving purse seine vessels of fish caught in the Convention Area but transshipped outside of the Convention Area. However, purse seine vessels would continue to be able to transship in port.
CMM 2009–06 also contains a provision obligating CCMs to prohibit vessels (other than purse seine vessels) flying their flags from transshipping on the high seas in the Convention Area, subject to certain considerations. NMFS has prepared an advance notice of proposed rulemaking to solicit public comments regarding this provision of CMM 2009–06 (see NOAA–NMFS–2012–0001 at
At its Sixth Regular Session, in December 2009, the WCPFC adopted CMM 2009–01, “WCPFC Record of Fishing Vessels and Authorization to Fish.” This CMM revised CMM 2004–01, and specifically established the Interim Register, which includes all non-CCM carrier and bunker vessels that are authorized by the Commission to be used in the Convention Area for transshipping, bunkering, or other supply activities. CMM 2009–01 includes a specific provision obligating WCPFC Members and Cooperating Non-Members to prohibit their fishing vessels from conducting transshipping and bunkering or other support activities in the Convention Area with another vessel unless that vessel is: (1) Flagged to WCPFC Members or Cooperating Non-Members; (2) on the Interim Register; or (3) operated under charter, lease, or similar mechanisms as an integral part of the fishery of a CCM, in accordance with relevant WCPFC provisions. This provision is similar to the provision in CMM 2009–06 obligating CCMs to prohibit vessels from transshipping to or from a vessel flagged to a non-CCM unless that vessel has received specific authorization, such as a non-CCM carrier vessel that is on the Interim Register.
At its Seventh Regular Session, in December 2010, the WCPFC adopted CMM 2010–02, “Conservation and Management Measure for the Eastern High-Seas Pocket Special Management Area.” This measure seeks to reduce IUU fishing and applies to the area of the high seas bounded by the EEZs of the Cook Islands to the north and west, French Polynesia to the east, and Kiribati to the northeast. The measure obligates CCMs to require their vessels to submit reports with specific information, including catch data, at least six hours prior to entry and no later than six hours prior to exiting this area of the high seas.
CMM 2010–02 also includes a provision requiring CCMs to encourage their vessels operating in the Eastern SMA to report sightings of any vessel to the WCPFC Secretariat, and provide specific information to the WCPFC Secretariat for each sighting (date, time, position, bearing, markings, speed, and vessel type). Because of the limited presence of U.S. vessels operating in the Eastern SMA (see the EA) and the non-obligatory nature of this provision, this proposed rule would not implement this provision of CMM 2010–02. The map in Figure 1 shows the Eastern SMA as the high seas area within the rectangle bounded by the bold black lines.
Figure 1. Eastern SMA. Areas of high seas are indicated in white; areas of claimed national jurisdiction, including territorial seas, archipelagic waters, and EEZs, are indicated in dark shading. The Eastern SMA is the high seas area (in white) within the rectangle bounded by the bold black lines. This map displays indicative maritime boundaries only.
At its Sixth Regular Session, in December 2009, the WCPFC adopted CMM 2009–02, “Conservation and Management Measure on the Application of High Seas Fish Aggregating Device (FAD) Closures and Catch Retention.” The provisions in CMM 2009–02 modify or supplement the provisions in CMM 2008–01, “Conservation and Management Measure for Bigeye and Yellowfin Tuna in the Western and Central Pacific Ocean,” for FAD prohibition periods and catch retention requirements for purse seine fishing vessels, including specific requirements for reporting discards of fish. Prior to the adoption of CMM 2009–02, NMFS issued regulations implementing the requirements for the FAD prohibition periods and catch retention specified in CMM 2008–01. Those regulations are set forth at 50 CFR 300.223. NMFS has determined that the regulations implementing the FAD prohibition periods and catch retention requirements under CMM 2008–01 are consistent with the related provisions of CMM 2009–02. Therefore, no additional steps need to be taken at this time to implement these provisions, except that NMFS proposes to remove the termination date (December 31, 2012) applicable to the current catch retention provision. In addition, CMM 2009–02 also contains new reporting requirements for discards of fish from purse seine vessels, which would be implemented under this rulemaking. The reporting provisions obligate CCMs to require owners and operators of vessels to ensure the submission of a report to the Commission containing specific information regarding discards no later than 48 hours after any discard at sea of fish. The provisions also obligate CCMs to require that a hard copy of the information be provided to the WCPFC Observer on board the vessel.
This proposed rule also would implement restrictions regarding “net sharing” (i.e., the transfer of fish that have not yet been loaded on board any fishing vessel from the purse seine net of one vessel to another fishing vessel) for U.S. purse seine vessels fishing in the Convention Area. The regulations at 50 CFR 300.223(d) implementing the catch retention requirements of CMM 2008–01 require U.S. purse seine fishing vessels to retain all catch of bigeye tuna (
NMFS believes that in such circumstances, it would be appropriate to allow the vessel to transfer the excess fish in the net to another vessel for the purpose of reducing discards. NMFS' proposal is consistent with CMM 2008–01, which states that “excess fish taken in the last set may be transferred to and retained on board another purse seine vessel provided this is not prohibited under applicable national law.”
Thus, the proposed rule would exclude net sharing activities from the definition of transshipment (which for purse seine vessels is generally prohibited at sea). However, a purse seine vessel that transfers fish through net sharing would be prohibited from making any additional purse seine sets during the remainder of its fishing trip.
Under the proposed rule, U.S. purse seine vessels would be prohibited from net sharing with the exception that they
Certain vessel owners and operators that would be subject to this proposed rule are currently subject to regulations regarding transshipments, specifically on reporting transshipment activities. None of the requirements under the proposed rule would conflict with those regulations. However, there would be some overlap with the current reporting requirements. These overlaps are described below. Aside from the 15-day requirement for high seas and emergency transshipments, as described above, CMM 2009–06 does not provide specific requirements for when the transshipment report must be submitted. Thus, the proposed rule would require vessel owners and operators who are subject to other existing transshipment reporting requirements to submit the information in the transshipment report on the same schedule as those requirements for all transshipments other than emergencies or those that occur on the high seas.
The South Pacific Tuna Act, (SPTA; 16 U.S.C. 973–973r), implements the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America (Treaty), which requires the submission of a transshipment logsheet form. Purse seine vessels licensed under the SPTA implementing regulations must complete a transshipment logsheet form for each transshipment. The logsheet form, which can be obtained from the NMFS Pacific Islands Regional Administrator, must be accompanied by a report of the size breakdown of the catch as determined by the receiver of the fish, also known as a “final outturn” report. The logsheet form and final outturn report must be submitted to the NMFS Pacific Islands Regional Administrator within two days of the completion of the transshipment and to the Treaty Administrator (currently the Pacific Islands Forum Fisheries Agency (FFA)) within fourteen days of the transshipment (50 CFR 300.34(c)(2)). Owners and operators of vessels licensed under the SPTA that are involved in transshipments of HMS in the Convention Area or in transshipments of HMS caught in the Convention Area and transshipped elsewhere, would be subject to the new reporting requirements in the proposed revised section 300.218 of title 50 of the Code of Federal Regulations set forth in this proposed rule.
Under current regulations, owners and operators of vessels registered for use as receiving vessels used to land or transship western Pacific pelagic management unit species (MUS) (i.e., species managed under the Fishery Ecosystem Plan for Pacific Pelagic Fisheries of the Western Pacific Region) that were harvested using longline gear shoreward of the outer boundary of the U.S. EEZ around American Samoa, Hawaii, Guam, the Commonwealth of the Northern Mariana Islands, or the Pacific remote island areas (PRIA; these include Palmyra Atoll, Kingman Reef, Jarvis Island, Baker Island, Howland Island, Johnston Atoll, Wake Island, and Midway Atoll), must submit a transshipment logbook containing report forms available from the NMFS Pacific Islands Regional Administrator. All information specified on the form must be recorded on the form within 24 hours of the transshipment. Each form must be signed and dated by the receiving vessel operator. The original logbook form for each day of transshipment activity must be submitted to the NMFS Pacific Islands Regional Administrator within 72 hours of each landing of western Pacific pelagic MUS (50 CFR 665.14(c) and 50 CFR 665.801(e)).
NMFS would replace the transshipment logbook form currently in use with the proposed Pacific Transshipment Declaration Form. Thus, owners and operators of vessels receiving transshipments of longline-caught fish in the U.S. EEZ around American Samoa, Hawaii, Guam, the Commonwealth of the Northern Mariana Islands, or PRIA would be required to submit only one form for a given transshipment. Owners and operators of vessels that offload the fish would be required to complete the form as well, though they are not required to do so under the current regulations.
The transshipment reporting requirements under CMM 2009–06 do not include several of the pieces of information on the existing form, which, again, is currently required to be completed only by owners or operators of receiving vessels. These include: (1) The receiving vessel permit number; (2) the broker or shipping agent of the receiving vessel; (3) the port of landing of the receiving vessel; (4) the number of days the offloading vessel fished; (5) the number of sets made by the offloading vessel; (6) the average number of hooks fished per day by the offloading vessel; and (7) the general area of the offloading vessel's catch, broken into four specific quadrants. Based on the recommendations of the Western Pacific Fishery Management Council at its 148th Meeting, NMFS proposes to include the port of landing and broker or shipping agent information requirements in the new transshipment report form; the other pieces of information that are not required under the provisions of CMM 2009–06 would not be included.
Current Federal regulations require the operator of any commercial fishing vessel or recreational charter vessel fishing for HMS in the management area of the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species to maintain on board the vessel an accurate and complete record of catch, effort, and other data on report forms available from the NMFS Southwest Regional Administrator. All information specified on the forms must be recorded on the forms within 24 hours of the completion of each fishing day. The current version of these forms includes information about at-sea transshipments. The original form for each day of the fishing trip must be submitted to the NMFS Southwest Regional Administrator within 30 days of each landing or transshipment of HMS (50 CFR 660.708(a)). The form currently only requires three pieces of information regarding transshipments—the date, transshipper (receiving vessel), and amount (tonnage) of fish transshipped. Such information is required to be reported only for transshipments that take place at sea. Under this proposed rule, vessel owners and operators subject to the transshipment requirements at 50 CFR part 660 and the requirements proposed in this rule would be required to complete and submit the current report form as well as the new transshipment report proposed in this rule.
This proposed rule contains the following seven new categories of
The owner and operator (operator means, with respect to any vessel, the master or other individual aboard and in charge of that vessel) of any U.S. fishing vessel used for commercial fishing that transships HMS in the Convention Area, whether from an offloading or receiving vessel, or that transships HMS caught in the Convention Area, whether from an offloading or receiving vessel, would be required to ensure the completion of and submission to NMFS of a transshipment report form available from the NMFS Pacific Islands Regional Administrator. A separate report would be required for each transshipment. As some of the information might be known by only the receiving vessel operator and some of the information might be known only by the offloading vessel operator, the operators of both vessels may need to exchange information regarding transshipment activities.
The information specified on the report would need to be recorded within 24 hours of completion of the transshipment. For transshipments on the high seas or for emergency transshipments that would otherwise be prohibited, the report would be required to be submitted by email or fax to the appropriate address specified by the NMFS Pacific Islands Regional Administrator no later than 10 calendar days after completion of the transshipment. The report could be submitted without signatures to accommodate vessels that remain at sea for a substantial period of time and that might, for example, need to report the information needed on the form via radio to a shore agent because they do not have fax or email capabilities. This would enable NMFS to submit the report to the Commission within the 15-day due date under the CMM.
The original, signed copy of the report would be submitted to the address specified on the form no later than 15 calendar days after the vessel first enters into port or 15 calendar days after the transshipment for emergency transshipments in port. For all other transshipments, if the vessel owner and operator is subject to current transshipment reporting requirements at 50 CFR part 300 subpart D, 50 CFR part 660, or 50 CFR part 665, the transshipment report would be required to be submitted by the due date for submitting the original report specified in those regulations. If the vessel owner and operator are not subject to any of the current requirements, for transshipments at sea the report would be required to be submitted no later than 72 hours after the vessel first enters into port; for transshipments in port, the report would be required to be submitted no later than 72 hours after completion of the transshipment.
Under the current requirements at 50 CFR 300.216, transshipments at sea involving purse seine vessels are currently prohibited in the Convention Area. As discussed above, CMM 2009–06 also obligates CCMs to prohibit the transshipment at sea of HMS caught in the Convention area by purse seine vessels regardless of the location of the transshipment. Accordingly, the rule proposes to revise the regulations at 50 CFR 300.216 to include that additional prohibition.
For any transshipment of HMS on the high seas in the Convention Area or on the high seas anywhere of HMS caught in the Convention Area that are not prohibited (e.g., high seas transshipments by vessels other than purse seine vessels), vessel owners and operators would be required to ensure the submission to the Commission of notice of the transshipment, as specified in CMM 2009–06, at least 36 hours prior to the transshipment. The notice would be provided by fax or email, and would include the following information: (1) The name of the offloading vessel; (2) the vessel identification markings located on the hull or superstructure of the offloading vessel; (3) the name of the receiving vessel; (4) the vessel identification markings located on the hull or superstructure of the receiving vessel; (5) the expected amount, in metric tons, of the fish product being transshipped, broken down by species and processed state; (6) the expected date or dates of the transshipment; (7) the expected location of transshipment, including latitude and longitude to the nearest tenth of a degree; (8) an indication of which one of the following areas the expected transshipment location is situated—high seas inside the Convention Area, high seas outside the Convention Area, or an area under the jurisdiction of a particular nation—in which case the nation must be specified; and (9) the geographic location of the catch: The expected amount of HMS to be transshipped, in metric tons, that was caught in each of the following areas: Inside the Convention Area on the high seas, outside the Convention Area on the high seas, and within areas under the jurisdiction of a particular nation, with each such nation and the associated amount specified. Information regarding the geographic location of the catch is not required, however, if the reporting vessel is the receiving vessel. The transshipment would be required to take place within 24 nautical miles of the expected location provided in the notice.
Notice would also be required for emergency transshipments that would otherwise be prohibited. An emergency transshipment would be defined as a transshipment conducted under circumstances of force majeure or other serious mechanical breakdown that could reasonably be expected to threaten the health or safety of the vessel or crew or cause a significant financial loss through fish spoilage. Each vessel owner or operator that qualifies for the emergency would be required to ensure the provision of the notice directly to the Commission by fax or email within 12 hours of completion of the transshipment and would be required to ensure the inclusion of the same information described above for the notice for high seas transshipments, as well as a description of the reasons for the emergency transshipment. The transshipment would be required to take place within 24 nautical miles of the location provided in the notice.
This proposed rule would allow emergency transshipments involving purse seine vessels to take place at sea in the Convention Area; such transshipments are currently prohibited under the regulations. The current regulations implement Article 29, Paragraph 5 of the Convention and are intended to prohibit at sea transshipments by purse seine vessels operating in the Convention Area, subject to specific exemptions adopted by the WCPFC. CMM 2009–06 affirms the prohibition set forth at Article 29, Paragraph 5 of the Convention, requires
A copy of each notice would be required to be submitted to NMFS by the same due dates specified for submission to the Commission: at least 36 hours prior to transshipment on the high seas or 12 hours after completion of an emergency transshipment.
Transshipments at sea in the Convention Area would require observer coverage for vessels, with the specific requirements dependent upon the type of vessel and the type of fish to be transshipped. Observer coverage would not be required for emergency transshipments at sea (i.e., a transshipment conducted under circumstances of force majeure or other serious mechanical breakdown that could reasonably be expected to threaten the health or safety of the vessel or crew or cause a significant financial loss through fish spoilage). The observers would be required to be WCPFC Observers. Observers deployed by NMFS are currently considered WCPFC Observers, as the program has completed the required authorization process to become part of the WCPFC Regional Observer Programme (ROP). For most transshipments, an observer would be required on board the receiving vessel. However, for transshipments to a receiving vessel less than or equal to 33 meters in length, and not involving purse seine-caught fish or frozen longline-caught fish, the observer could be deployed on either the offloading vessel or receiving vessel. In addition, transshipments to receiving vessels greater than 33 meters in length and involving only troll-caught or pole-and-line-caught fish would not require an observer until January 1, 2013. All involved vessel owners and operators would need to ensure that a WCPFC Observer is on board one of the two vessels to monitor the transshipment for the duration of the transshipment, even when the requirement to carry an observer falls on the other vessel involved in the transshipment (e.g., the observer requirement is only for the receiving vessel). The owner or operator of a vessel requiring an observer for transshipments at sea would need to ensure that notice is provided to the NMFS Pacific Islands Regional Administrator at least 72 hours (exclusive of weekends and Federal holidays) before the vessel leaves port on the fishing trip indicating the need for an observer. The notice would need to include the official number of the vessel, the name of the vessel, intended departure date, time and location, the name of the operator, and a telephone number at which the owner, operator, or a designated agent may be contacted during the business day (8 a.m. to 5 p.m. Hawaii Standard Time). If applicable, notice could be provided in conjunction with the notice required under 50 CFR 665.803(a).
Vessel owners, operators, and crew would be required to provide any WCPFC Observer on board with full access to their vessel during the transshipments, as well as access to information and data sources regarding the transshipment. CMM 2009–06 includes provisions for allowing observers full access to both the unloading and the receiving vessel and requires the WCPFC to develop guidelines for the safety of observers moving between vessels. NMFS intends to implement this provision of the CMM after the WCPFC develops and issues appropriate safety guidelines.
CMM 2009–06 specifies that during transshipment, a receiving vessel must receive product from only one offloading vessel at a time for each observer that is available to monitor the transshipment; the observer may be on the offloading or receiving vessel. Accordingly, if only one WCPFC Observer is available, the receiving vessel would be able to receive HMS from only one offloading vessel at a time.
The requirements described above would be implemented through amendments to the current WCPFC observer requirements for U.S. vessels set forth at 50 CFR 300.215 and to the regulations at 50 CFR 300.216.
The owner and operator of any U.S. fishing vessel used for commercial fishing for HMS would be required to ensure that any vessel with which they engage in transshipment (to or from) in the Convention Area; or engage in bunkering or other support activities (to or from) in the Convention Area falls into one of the three of the following categories. The vessels must be: (1) Flagged by a WCPFC Member or Cooperating Non-Member; (2) on the Interim Register, which is available at
The owner or operator of any U.S. fishing vessel used for commercial fishing would be required to ensure the submission of a notice to the Commission containing specific information at least six hours prior to entry and no later than six hours prior to exiting the Eastern SMA. The notices would be required to be submitted in the format specified by the NMFS Pacific Island Regional Administrator via fax or email and would include the following information: (1) The vessel identification markings located on the hull or superstructure of the vessel; (2) whether the notice is for entry or exit; (3) date and time of anticipated point of entry or exit; (4) latitude and longitude of anticipated point of entry or exit; (5) amount of fish product on board at the time of the report, in kilograms, in total and for each of the following species or species groups: Yellowfin tuna, bigeye tuna, albacore, skipjack tuna, swordfish, shark, other; and (6) an indication of whether the vessel has engaged in or will engage in any transshipments while in the Eastern SMA. A copy of the notice would be required to be provided to NMFS at least six hours prior to the entry and no later than six hours prior to the exit. As discussed in more detail in the IRFA, below, these requirements would overlap with current reporting requirements for U.S. purse seine vessels; the current requirements require notice to be provided every time a vessel enters or exits the EEZ of a Pacific Island Party to the Treaty.
The owner or operator of any U.S. purse seine fishing vessel would be required to ensure the submission of a report containing specific information to the Commission and a copy of the report to NMFS no later than 48 hours after any discard at sea of fish. The reports would be required to be submitted in the format specified by the NMFS Pacific Islands Regional Administrator via fax or email. A hard copy of the report would be required to be submitted to the observer on board the vessel. This report would overlap with current purse seine catch reporting requirements, as discussed in more detail below in the IRFA.
This proposed rule would prohibit the transfer of fish at sea from a purse seine net deployed by or under the control of a fishing vessel of the United States to another fishing vessel in the Convention Area. However, as discussed above, the proposed rule includes a narrow exception that would allow U.S. purse seine vessels to transfer fish through net sharing to other U.S. purse seine vessels on the final set of a trip when there is insufficient well space for the fish. The proposed rule would amend the current regulatory definition of transshipment to exclude net sharing from the definition as purse seine vessels are generally prohibited from engaging in transshipment of HMS at sea. Under the exception for net sharing, the purse seine vessel that transfers fish through net sharing would be prohibited from making further purse seine sets during the remainder of its fishing trip.
Furthermore, in waters under the jurisdiction of the United States, net sharing would be allowed only between U.S. vessels that are authorized to be used for fishing in that area. In the event of a net share, the owner and operator of the vessel that caught the fish would record the catch, as required under 50 CFR 300.34(c)(1) on the Regional Purse Seine Logsheets (RPLs), and would also be required to note that the net sharing had taken place, in the manner specified by the NMFS Pacific Islands Regional Administrator, on the RPL. The owner and operator of the vessel that received the fish would also be required to note on the RPL that the net sharing had taken place, in the manner specified by the NMFS Pacific Islands Regional Administrator.
In addition to the new requirements, the proposed rule would amend the language that is in 50 CFR 300.223(d) to remove the termination date (December 31, 2012) applicable to the current catch retention provision. The proposed rule would also correct 50 CFR 300.222(y), which is inconsistent with 50 CFR 300.223(d)(3). Section 300.223(d)(3) states that the catch retention requirements are applicable to the entire Convention Area. However, section 300.222(y) states that the prohibition on discarding fish at sea in contravention of section 300.223(d) is limited to the high seas and areas within the jurisdiction of the United States, including the EEZ and territorial sea between 20° N. latitude and 20° S. latitude. This proposed rule would amend section 300.222(y) to amend the description of the requirement to state that the retention requirements are applicable to the entire Convention Area.
The proposed rule would also include a minor change to the wording of the current language at 50 CFR 300.216(b) so that the terminology referring to U.S. purse seine vessels is consistent throughout 50 CFR 300 Subpart O—the phrase “purse seine fishing vessel of the United States” would be replaced with “fishing vessel of the United States equipped with purse seine gear.”
As mentioned above, CMM 2009–06 requires CCMs to prohibit transshipments at sea involving purse seine vessels of fish caught in the Convention Area but transshipped outside of the Convention Area. Accordingly, the proposed rule would include this prohibition. The proposed rule would also allow emergency transshipments involving purse seine vessels to take place at sea in the Convention Area.
The NMFS Assistant Administrator has determined that this proposed rule is consistent with the WCPFC Implementation Act and other applicable laws, subject to further consideration after public comment.
The proposed rule was determined not to be significant for purposes of Executive Order 12866.
An IRFA was prepared, as required by section 603 of the RFA. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained above in the
There would be no disproportionate economic impacts between small and large entities operating vessels as a result of this proposed rule. Furthermore, there would be no disproportionate economic impacts based on vessel size, gear, or homeport.
The proposed rule would apply to owners and operators of U.S. HMS fishing vessels used to: (1) Transship HMS in the Convention Area or to transship outside the Convention Area HMS caught in the Convention Area; (2) enter or exit the Eastern SMA; or (3) purse seine for HMS in the Convention Area. The estimated number of affected entities is as follows, broken down by vessel type:
Based on the number of longline vessels permitted to fish under the Fishery Ecosystem Plan for Pacific Pelagic Fisheries of the Western Pacific Region or the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species as of January 2011, the estimated number of longline vessels to which the rule would apply is 170. Based on the number of purse seine vessels licensed under the South Pacific Tuna Treaty as of January 2011, the estimated number of purse seine vessels to which the rule would apply is 36. Based on the average annual number of albacore troll vessels that fished in the Convention Area during 2002–2009, the estimated number of troll vessels to which the rule would apply is 26. The total estimated number of vessels that would be subject to the rule is 232.
Based on the best available financial information about the affected fishing fleets, and using individual vessels as proxies for individual businesses, NMFS believes that all the affected fish harvesting businesses in the longline and troll fleets are small entities as defined by the RFA; that is, they are independently owned and operated and not dominant in their fields of operation, and have annual receipts of no more than $4.0 million. In the purse seine fleet, most or all of the businesses that operate these vessels are large entities as defined by the RFA. However, it is possible that one or a few of these fish harvesting businesses meet the criteria for small entities, so the purse seine fleet is included in the remainder of this analysis.
The reporting, recordkeeping and other compliance requirements of this proposed rule are described earlier in the preamble. The classes of small entities subject to the requirements and the types of professional skills necessary to fulfill the requirements are as follows:
(1) Transshipment reporting: This requirement is part of a proposed collection of information subject to approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). The requirement to complete and submit transshipment reports to NMFS would apply to the owners and operators of any vessel used to offload or receive a transshipment of HMS in the Convention Area or a transshipment outside the Convention Area of HMS caught in the Convention Area. Accordingly, it would apply to all the vessels identified above (170 longline, 36 purse seine, and 26 troll). It is estimated that each transshipment report would require about 60 minutes
Each longline vessel is expected to transship between zero and approximately four times per year. The estimated annual cost of compliance is therefore between $0 for a vessel that does not transship to about $244 for a vessel that transships four times per year.
Each purse seine vessel is expected, based on the U.S. purse seine fleet's transshipment patterns during 2008 and 2009, to transship between zero and approximately 19 times per year. The estimated annual cost of compliance is therefore between $0 for a vessel that does not transship to about $1,159 for a vessel that transships 19 times per year.
Each troll vessel is expected to transship between zero and approximately two times per year. The estimated annual cost of compliance is therefore between $0 for a vessel that does not transship to about $122 for a vessel that transships two times per year.
Fulfillment of this requirement is not expected to require any professional skills that the vessel owners and operators do not already possess.
(2) Prior notice for high seas transshipments and emergency transshipments: This requirement is part of a proposed collection of information subject to approval by the Office of Management and Budget (OMB) under the PRA. The requirement to provide prior notice for transshipments would apply to the owners and operators of any vessel used for any transshipment on the high seas, as well as for any emergency at-sea transshipment that would be otherwise prohibited. Accordingly, it would apply to all the vessels identified above (170 longline, 36 purse seine, and 26 troll). It is estimated that each transshipment notice would require about 15 minutes of labor and no more than $1 in communication costs. The value of the required labor is estimated to be $60 per hour. The estimated cost of compliance is therefore about $16 per notice. The estimated compliance costs per affected entity are described below, by vessel type:
Each longline vessel is expected to transship on the high seas between zero and approximately four times per year. The estimated annual cost of compliance is therefore between $0 for a vessel that does not transship on the high seas to about $64 for a vessel that transships on the high seas four times per year.
Purse seine vessels would not be allowed to transship at sea except under emergency situations. Each purse seine vessel is expected to transship at sea under emergency situations between zero and approximately one time per year. The estimated annual cost of compliance is therefore between $0 for a vessel that does not transship at sea to about $16 for a vessel that transships at sea once per year.
Each troll vessel is expected to transship on the high seas between zero and approximately two times per year. The estimated annual cost of compliance is therefore between $0 for a vessel that does not transship on the high seas to about $32 for a vessel that transships on the high seas two times per year.
Fulfillment of this requirement is not expected to require any professional skills that the vessel owners and operators do not already possess.
(3) Observer coverage for transshipments at sea: This includes a requirement to carry a WCPFC observer on certain trips involving transshipments, as well as a requirement to notify NMFS in advance of such a trip so that an observer can be deployed on the vessel. The pre-trip notification aspect is part of a proposed collection of information subject to approval by the OMB under the PRA. The remaining aspects of the requirement would not impose any new reporting or recordkeeping requirements (within the meaning of the PRA). These requirements would not apply to purse seine vessels because they are not allowed to transship at sea, and they generally would not apply to troll vessels because for transshipments involving troll-caught fish, an observer would in most cases be required on the receiving vessel, not the offloading vessel. If a U.S. troll vessel were used to receive a transshipment, then the requirements to notify NMFS in advance of the trip and to carry an observer would apply to the troll vessel, and if the receiving vessel were less than 33 meters in length, the required observer could be carried by either the offloading or receiving vessel. However, based on the history of the fishery, in which all recorded transshipments have been made to large foreign-flagged carriers, these cases are expected to be rare. Thus, except in rare cases, only the longline fleet would be subject to these requirements, and the estimated total number of affected entities is approximately 170, as described above.
Pre-trip notification: It is estimated that each pre-trip notification would require 1 minute of labor and about $1 in communication costs. The value of the required labor is estimated to be $60 per hour. The estimated cost of compliance is therefore about $2 per notification. Fishing vessel operators might not always know in advance of a fishing trip whether they will need or want to transship at sea during that trip. Consequently, they might sometimes make a pre-trip notification, and carry a WCPFC observer, on trips that ultimately do not involve transshipments at sea. In other words, a pre-trip notification is expected to be made for each trip during which the fishing vessel operator wants to maintain the opportunity to transship at sea, and the number of such occasions might be greater than the number of fishing trips during which at-sea transshipments actually occur. The number of pre-trip notifications cannot be predicted with any certainty, but for the purpose of this analysis each longline vessel is expected to make a pre-trip notification between zero and approximately four times per year. The estimated annual cost of compliance is therefore between $0 for a vessel that does not make any pre-transshipment notifications to about $8 for a vessel that makes four pre-transshipment notifications per year.
Requirement to carry observer: It is assumed that the Observer Program administered by NMFS will continue to be authorized by the WCPFC to be part of the WCPFC ROP. Thus, observers deployed by NMFS pursuant to regulations at 50 CFR Part 665 would be deemed to be WCPFC observers deployed in accordance with this new requirement. As such, vessel owners and operators would bear additional compliance costs under this requirement only in cases where an observer is required under this rule but a WCPFC or NMFS observer is not required under other regulations. For example, the shallow-set and deep-set sectors of the Hawaii longline fleet are subject to observer coverage rates of 100 and approximately 20 percent (in terms of fishing trips), respectively. The compliance cost for a vessel that engages solely in shallow-set trips is therefore expected to be nil. For deep-setting vessels, on any given fishing trip during which a vessel operator wants to maintain the opportunity to transship at sea there is a 20 percent chance that an observer will be deployed under other regulations, in which case this new requirement would bring no new
Fulfillment of this requirement is not expected to require any professional skills that the vessel owners and operators do not already possess.
(4) Restrictions on vessels with which transshipping and bunkering may be conducted: This requirement would not impose any new reporting or recordkeeping requirements (within the meaning of the PRA). The requirement to transship with or be bunkered by a vessel only if such vessel is authorized in accordance with WCPFC decisions would apply to owners and operators of any vessel used for transshipment of HMS in the Convention Area. Accordingly, it would apply to all the vessels identified above (170 longline, 36 purse seine, and 26 troll). The costs of compliance are expected to be nil or minor because the requirement is not expected to be constraining. The vessels with which transshipping and bunkering may take place include any vessel flagged by a WCPFC Member or Cooperating Non-Member, vessels on the WCPFC Record of Fishing Vessels (i.e., any vessel authorized to be used for fishing in the Convention Area in areas outside the jurisdiction of its flag State (e.g., on the high seas or in the areas of jurisdiction of coastal States that are not the flag State)), and vessels on the Interim Register, placement on which requires a nomination by a member of the WCPFC and an annual fee of $2,500. It is expected to be a rare occurrence that a vessel other than those types would be active in the Convention Area.
Fulfillment of this requirement is not expected to require any professional skills that the vessel owners and operators do not already possess.
(5) Notice of entry or exit for the Eastern SMA: This requirement is part of a proposed collection of information subject to approval by the Office of Management and Budget (OMB) under the PRA. The requirement to provide notice in advance of each entry into and each exit out of the Eastern SMA would apply to the owners and operators of any vessel used for commercial fishing for HMS in the Convention Area or which has, or is required to have, a WCPFC Area Endorsement. Accordingly, it would apply to all the vessels identified above (170 longline, 36 purse seine, and 26 troll). It is estimated that each notice would require about 15 minutes of labor and no more than $1 in communication costs. The value of the required labor is estimated to be $60 per hour. The estimated cost of compliance is therefore about $16 per notice. The estimated compliance costs per affected entity are described below, by vessel type:
Each longline vessel is expected to enter the Eastern SMA between zero and approximately four times per year (and exit the same number of times). The estimated annual cost of compliance is therefore between $0 for a vessel that does not enter the pocket to about $128 for a vessel that enters the Eastern SMA four times per year and exits the Eastern SMA four times per year.
Each purse seine vessel is expected to enter the Eastern SMA between zero and approximately two times per year (and exit the same number of times). The estimated annual cost of compliance is therefore between $0 for a vessel that does not enter the pocket to about $64 for a vessel that enters the Eastern SMA two times per year and exits the Eastern SMA two times per year.
Each troll vessel is expected to enter the Eastern SMA between zero and approximately two times per year (and exit the same number of times). The estimated annual cost of compliance is therefore between $0 for a vessel that does not enter the pocket to about $64 for a vessel that enters the Eastern SMA two times per year and exits the Eastern SMA two times per year.
Fulfillment of this requirement is not expected to require any professional skills that the vessel owners and operators do not already possess.
(6) Purse seine discard report: This requirement is part of a proposed collection of information subject to approval by the Office of Management and Budget (OMB) under the PRA. The requirement to submit a report to the WCPFC any time that tuna are discarded at sea would apply to the owners and operators of any purse seine vessel used for commercial fishing for HMS in the Convention Area. Accordingly, it would apply to an estimated 36 purse seine vessels, as identified above. It is estimated that each report would require about 30 minutes of labor and no more than $1 in communication costs. The value of the required labor is estimated to be $60 per hour. The estimated cost of compliance is therefore about $31 per report. Based on the purse seine fleet's discard patterns during 2008, the most recent year for which complete data are available, each purse seine vessel is expected to discard tuna at sea and have to report on such discards approximately 17 times per
Fulfillment of this requirement is not expected to require any professional skills that the vessel owners and operators do not already possess.
(7) Other requirements: The net-sharing restrictions and reporting requirement and the removal of the termination date (December 31, 2012) of the current catch retention requirements would not impose any new reporting or recordkeeping requirements (within the meaning of the PRA), but the net sharing reporting requirement would modify the information required to be reported under a current information collection (OMB control number 0648–0218). Specifically, when fish are shared, the owners and operators of both vessels involved would have to indicate on their respective catch report forms (also known as RPLs) that, for that set, a specified amount of fish were shared with a specified other vessel. This reporting requirement is not expected to add to the current reporting burden or bring other compliance costs.
The proposed restrictions on net-sharing—specifically, that it may be done only on the last set and only between U.S. vessels, would apply to the owner and operator of any purse seine vessel used for commercial fishing for HMS in the Convention Area. Accordingly, it would apply to an estimated 36 purse seine vessels, as identified above. Because the main motivation for net sharing is to avoid discarding fish that cannot be accommodated in fish wells that are full, vessel operators are likely to want to net-share only on the last set. Accordingly, the last-set restriction is expected to bring little, if any, compliance costs. The restriction on net-sharing only between U.S. vessels would be constraining and therefore bring costs, but because data are not available on the frequency of net sharing or the flags of vessels with which net-sharing occurs, the magnitude of those costs cannot be predicted.
Removing the termination date of the current catch retention requirements would bring an extension of the costs to purse seine fishing entities associated with having to fill well space with less valuable, and in some cases, unmarketable, product. Those costs cannot be quantified. The costs would likely be different for vessels that tend to operate out of Pago Pago and deliver their catch to the canneries in Pago Pago versus vessels that transship most of their catch to other vessels. For vessels in the former category, which have to steam relatively far from the fishing grounds in order to land their fish, a fishing trip typically only ends when the fish holds are full in order to maximize revenue during a given trip. Revenues and profits for these vessels are therefore strongly dependent on the size of their fish wells and on the value of fish per unit of well space. There have been occasions when the canneries have charged vessel operators to unload small fish. If that occurs with small fish that under this proposed rule are retained that otherwise would not be, vessel owners and operators would bear direct economic costs. For vessels that tend to transship their catches at ports near the fishing grounds, well space is a less important constraint on profits, so the economic impacts of this requirement on these vessels would likely be less.
Fulfillment of these requirements is not expected to require any professional skills that the vessel owners and operators do not already possess.
A number of Federal rules overlap with the proposed rule, as described below for each of the seven elements of the proposed rule:
(1) Transshipment reporting requirements: For purse seine vessels, there are two current transshipment reporting requirements under the SPTA that overlap with the proposed reporting requirement in that much of the information required under the proposed report is already required under the current reports. The first requirement is at 50 CFR 300.34(c)(2) and applies to all unloadings, including transshipments. The second is at 50 CFR 300.34(c)(9) and applies only to transshipments. The timing requirements and the recipients of the current and proposed reports differ in some respects. The proposed report would have to be submitted to the NMFS Pacific Islands Regional Administrator within 14 days after completion of the transshipment, except in the case of at-sea transshipments, which would be allowed only in specified emergency circumstances, and for which the report would have to be submitted to the NMFS Pacific Islands Regional Administrator within 10 days of completion of the transshipment. A copy of the current report under 50 CFR 300.34(c)(2) must be received by NMFS within two days of completion of the transshipment. In addition, the original report must be submitted to the FFA, as Treaty Administrator on behalf of the 16 Pacific Island Parties (PIP) to the Treaty, within 14 days of completion of the transshipment (this timing is consistent with the timing of the submission of the original of the proposed report). The current report under 50 CFR 300.34(c)(9) must be submitted to the FFA and to the PIP in whose jurisdiction the transshipment took place. It has no regulatory due date. The current reports would not fully satisfy the objectives of the proposed report—that is, they do not collect all the information needed under WCPFC CMM 2009–06. Furthermore, the two current reports under the SPTA must be sent in particular formats that are specified under the Treaty and cannot be changed in U.S. regulations unless and until the Treaty is amended accordingly. For these reasons, the proposed requirement not only overlaps with the two current SPTA reporting requirements but would also duplicate them to some extent, unless and until the Treaty is amended in such a way that the duplication can be removed.
For longline vessels, the proposed reporting requirement overlaps with a current transshipment reporting requirement at 50 CFR 665.14(c). The current requirement applies only to vessels that receive longline-caught fish and subsequently land or transship the fish in the western Pacific region. The timing and recipient of the proposed report would be the same as those for the current report (submit to the NMFS Pacific Islands Regional Administrator within 72 hours of the vessel reaching port after the transshipment). The form used for the proposed requirement would be designed to accommodate the current requirement and would replace the form used for the current requirement, so although the two requirements would overlap, there would be no duplication in the reporting burden.
For troll vessels, the proposed reporting requirement overlaps with a current transshipment reporting requirement at 50 CFR 660.708(a), which is for catch and effort reporting generally and applies to operators of HMS fishing vessels operating for commercial fishing in the portion of the EEZ off the U.S. west coast and in adjacent high seas areas. The current reporting form used by albacore troll fishermen requires that the date, receiving vessel, and amount transshipped be recorded for any at-sea transshipment. The timing of the proposed report would be the same as that for the current report (submit to NMFS within 30 days of the transshipment). The proposed requirement would satisfy the current reporting requirement, but because the current requirement applies to a much larger group of fishermen than the proposed requirement, and because the transshipment-related information required under the current report is
(2) Prior notice for high seas transshipments and emergency transshipments: For purse seine vessels only, the current requirement under the SPTA to provide notification in advance of each transshipment (50 CFR 300.34(c)(5)) overlaps with the proposed pre-transshipment notification requirement, but only in the case of emergency at-sea transshipments (because purse seine vessels are not allowed to transship at sea otherwise). The substance, timing, and recipients of the proposed and current notifications differ. Because of these differences, it would not be practical to remove the duplication between the two notification requirements.
(3) Observer coverage for transshipments at sea: The pre-trip notification aspect of this proposed requirement, which, except in rare cases would apply only to longline vessels, overlaps with an current pre-trip notification requirement for longline vessels at 50 CFR 665.803(a). The current requirement applies in the case of all fishing trips, and is used by NMFS in part to notify the vessel operator whether the vessel must carry an observer on that trip (observers are deployed according to a sampling scheme). The proposed notification would apply only in the case that a vessel operator wants to carry an observer in order to maintain the opportunity to transship at sea on a given fishing trip. Thus, although the two requirements would overlap, there would be no duplication in the substance of the reports. Furthermore, the timing and format of the proposed requirement would be such that vessel operators could provide the proposed notification at the same time (e.g., during the same phone call) that they provide the current notification. For vessel types other than longline vessels, no duplicating, overlapping or conflicting Federal regulations have been identified.
The proposed requirement that vessels carry an observer in certain situations involving transshipments would overlap for longline vessels with current observer requirements at 50 CFR 665.808 (for longline vessels) and 50 CFR 300.215 (for vessels used to fish for HMS on the high seas in the Convention Area). The proposed requirement would be such that carrying an observer under any of the current observer requirements would satisfy the proposed requirement, so there would be no duplication among the requirements. For purse seine vessels and troll vessels, there would be no overlapping, duplicative, or conflicting requirements except in the expectedly rare case that a troll vessel would be required to carry an observer, in which case the proposed requirement overlaps with the requirements at 50 CFR 660.719 (for west coast HMS vessels) and 50 CFR 300.215 (for vessels used to fish for HMS on the high seas in the Convention Area). Regarding the latter regulation, compliance with the current requirement would satisfy the proposed requirement, so there would be no duplication in the requirements. Under the former regulation, west coast-based troll vessels must carry NMFS observers when directed to do so by NMFS, but NMFS has not been deploying any observers on troll vessels under that requirement. However, because observers deployed by NMFS are currently considered WCPFC observers, as the program has completed the required authorization process to become part of the WCPFC ROP, this proposed requirement would not duplicate that requirement—the same observer could be used to fulfill both requirements.
(4) Restrictions on vessels with which transshipping and bunkering may be conducted: No duplicating, overlapping or conflicting Federal regulations have been identified.
(5) Notice of entry or exit for Eastern SMA: For purse seine vessels only, the current requirement under the SPTA to provide notification upon entry or exit into the EEZ of any PIP (50 CFR 300.34(c)(6)) overlaps with the proposed notification requirement, but only for those EEZs that border the Eastern SMA; that is, the EEZs of Kiribati, Cook Islands, and French Polynesia. The information required in the two notifications differs slightly. The current notification does not have a specific timing requirement. The recipients of the two notifications differ in that the current one must be sent to an authority of the relevant PIP while the proposed notification would have to be sent to the WCPFC and to NMFS. The current notification cannot be modified in any way unless and until the Treaty is amended accordingly, so the current notification could not be used to satisfy this proposed notification requirement, nor vice versa, so there would be some duplication between the two requirements.
For vessel types other than purse seine vessels, no duplicating, overlapping or conflicting Federal regulations have been identified.
(6) Purse seine discard report: This reporting requirement, which would apply only to purse seine vessels, would overlap with a current SPTA reporting requirement at 50 CFR 300.34(c)(1). The current requirement to maintain and submit “catch report forms,” also known as “Regional Purse Seine Logsheets” or “RPLs”, calls for information on fishing effort and catches, including information on the amount of fish, by species, that is discarded each day, including the reason for each such discard. The timing requirements and the recipients of the current and proposed reports differ in some respects. The proposed report would have to be submitted to the WCPFC and to NMFS within 48 hours after each discard event. The current report must be submitted to and received by NMFS within two days after the vessel next reaches port. In addition, it must be submitted to the FFA, as Treaty Administrator on behalf of the PIP, within 14 days after the vessel next reaches port. Furthermore, the current report must be sent on a particular form that is specified under the Treaty and cannot be changed in U.S. regulations unless and until the Treaty is amended accordingly. Because of these differences, the proposed requirement not only overlaps with the current SPTA requirement but would also duplicate it to a large extent, unless and until the Treaty is amended in such a way that the duplication can be removed.
(7) Net-sharing restrictions and reporting: No duplicating, overlapping or conflicting Federal regulations have been identified.
NMFS has attempted to identify alternatives that would accomplish the objectives of the Act and minimize any significant economic impact of the proposed rule on small entities. The alternative of taking no action at all was rejected because it would fail to accomplish the objectives of the WCPFC Implementation Act. As a Contracting Party to the Convention, the United States is required to implement the decisions of the WCPFC. Consequently, NMFS has limited discretion as to how to implement those decisions.
With respect to element (1), transshipment reporting requirements, one alternative would be to impose a uniform timeframe for submission of the report; to satisfy all current requirements and the provisions of CMM 2009–06, it would have to be submitted to NMFS within 10 calendar days after completion of the transshipment. This would be more burdensome than the proposed requirement for certain types of fishing vessels and is not preferred for that reason. NMFS has not identified any alternatives that would be less burdensome than the proposed
With respect to element (2), prior notice for high seas transshipments and emergency transshipments, one alternative would be to give affected entities the option of either providing the notice of high seas transshipment to NMFS at least one business day plus 36 hours in advance of the transshipment (i.e., 60 hours before the transshipment), or, as under the proposed rule, providing the notice directly to the WCPFC at least 36 hours in advance of the transshipment, with a copy to NMFS. This flexibility could relieve the burden for some entities and/or situations; specifically, in cases where it is less burdensome to send the notification to NMFS than to the WCPFC. Under this alternative, if a vessel operator exercises the first option, NMFS would have to forward the notification to the WCPFC within one business day, so this alternative would bring some additional administrative costs to NMFS. This alternative would also have the disadvantage of being more complex and possibly more confusing to affected entities than the proposed rule (under which there would be a single timeframe and single recipient). For these reasons, and because NMFS believes that the benefits of the flexibility afforded to affected entities by this alternative would be minor, this alternative is not preferred.
With respect to element (3), observer coverage for transshipments at sea, NMFS has not identified any alternatives that would be less burdensome than the proposed requirement and that would accomplish the objectives of the WCPFC Implementation Act. The only action alternative considered for this element is the alternative being proposed in this rule.
With respect to element (4), restrictions on vessels with which transshipping and bunkering may be conducted, NMFS has not identified any alternatives that would be less burdensome than the proposed requirement and that would accomplish the objectives of the WCPFC Implementation Act. The only action alternative considered for this element is the alternative being proposed in this rule.
With respect to element (5), notice of entry or exit for Eastern SMA, NMFS has not identified any alternatives that would be less burdensome than the proposed requirement and that would accomplish the objectives of the WCPFC Implementation Act. The only action alternative considered for this element is the alternative being proposed in this rule.
With respect to element (6), the purse seine discard report, NMFS has not identified any alternatives that would be less burdensome than the proposed requirement and that would accomplish the objectives of the WCPFC Implementation Act. The only action alternative considered for this element is the alternative being proposed in this rule.
With respect to element (7), net-sharing restrictions and reporting, one alternative would be to allow U.S. to net-share to foreign-flagged vessels, and a second would be to allow U.S. vessels to net-share both to and from foreign vessels. Under both these alternatives, net-sharing would be allowed only on the last set. Alternatives to allow net-sharing on other than the last set would not be consistent with WCPFC decisions, so were not considered. Both alternatives identified above would be less restrictive than the proposed rule and thus bring lower compliance costs. The first alternative would make it difficult to ensure consistent counting of catches—for example, the shared catch might be logged as catch by both the U.S. catcher vessel and the foreign vessel with which the catch is shared. The alternative is not preferred for that reason. The second alternative would have the same shortcoming and would also be very difficult to enforce, as the United States would have limited ability to determine whether a foreign vessel complied with the last-set condition. The alternative is not preferred for those reasons.
For each element, NMFS also considered the no-action alternative, or status quo situation in which the provisions of the proposed rule would not be implemented. However, as stated above, the no-action alternative would not accomplish the objectives of the WCPFC Implementation Act and was rejected for that reason.
This proposed rule contains collection-of-information requirements subject to review and approval by the OMB under the PRA. These requirements have been submitted to the OMB for approval. The public reporting burdens for each of the requirements are estimated as follows: Transshipment reporting: 60 minutes per response, on average; prior notice for high seas transshipments and emergency transshipments: 15 minutes per response, on average; pre-trip notification for the purpose of deploying observers: 1 minute per response, on average; notice of entry or exit for Eastern SMA: 15 minutes per response, on average; purse seine discard report: 30 minutes per response, on average. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the proposed collection of information to Michael D. Tosatto, Regional Administrator, NMFS PIRO (see
This proposed rule also contains a collection-of-information requirement subject to the PRA that has been approved by OMB under control number 0648–0218, “South Pacific Tuna Act” (the net-sharing reporting requirement). The public reporting burden for the Catch Report Form under that collection-of-information is estimated to average one hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to Michael D. Tosatto, Regional Administrator, NMFS PIRO (see
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties.
For the reasons set out in the preamble, 50 CFR part 300 is proposed to be amended as follows:
1. The authority citation for 50 CFR part 300, subpart O, continues to read as follows:
16 U.S.C. 6901
2. In § 300.211, definitions of “Cooperating Non-Member,” “Eastern High Seas Special Management Area,” “Net sharing,” “On board,” “WCPFC Interim Register of non-Member Carrier and Bunker Vessels,” and “WCPFC Record of Fishing Vessels” are added, in alphabetical order, and the definition of “Transshipment” is revised, to read as follows:
3. Section 300.215 is revised to read as follows:
(a)
(1) Any fishing vessel of the United States with a WCPFC Area Endorsement.
(2) Any fishing vessel of the United States for which a WCPFC Area Endorsement is required.
(3) Any fishing vessel of the United States used for commercial fishing that receives or offloads in the Convention Area a transshipment of HMS at sea.
(b)
(c)
(2) Fishing vessels specified in paragraph (a)(3) of this section must carry an observer when required to do so under § 300.215(d). The operator and each member of the crew of the fishing vessel shall act in accordance with paragraphs (c)(3), (c)(4), and (c)(5) of this section with respect to any WCPFC observer.
(3) The operator and crew shall allow and assist WCPFC observers to:
(i) Embark at a place and time determined by NMFS or otherwise agreed to by NMFS and the vessel operator;
(ii) Have access to and use of all facilities and equipment as necessary to conduct observer duties, including, but not limited to: Full access to the bridge, the fish on board, and areas which may be used to hold, process, weigh and store fish; full access to the vessel's records, including its logs and documentation, for the purpose of inspection and copying; access to, and use of, navigational equipment, charts and radios; and access to other information relating to fishing;
(iii) Remove samples;
(iv) Disembark at a place and time determined by NMFS or otherwise agreed to by NMFS and the vessel operator; and
(v) Carry out all duties safely.
(4) The operator shall provide the WCPFC observer, while on board the vessel, with food, accommodation and medical facilities of a reasonable standard equivalent to those normally available to an officer on board the vessel, at no expense to the WCPFC observer.
(5) The operator and crew shall not assault, obstruct, resist, delay, refuse boarding to, intimidate, harass or interfere with WCPFC observers in the performance of their duties, or attempt to do any of the same.
(d)
(i) The vessel is less than or equal to 33 meters in registered length, the transshipment does not include any fish caught by purse seine gear, the transshipment does not include any frozen fish caught by longline gear, and, during the transshipment, there is a WCPFC observer on board the vessel that offloads the transshipment;
(ii) Prior to January 1, 2013, the vessel is greater than 33 meters in registered length and the transshipment is only of fish caught by troll gear and/or pole-and-line gear;
(iii) The transshipment takes place entirely within the territorial seas or archipelagic waters of any nation, as defined by the domestic laws and regulations of that nation and recognized by the United States, and only includes fish caught in such waters; or
(iv) The transshipment is an emergency, as specified under § 300.216(b)(4).
(2)
(i) The vessel that receives the transshipment has a WCPFC observer on board;
(ii) The vessel that receives the transshipment is greater than 33 meters in registered length;
(iii) The transshipment includes fish caught by purse seine gear;
(iv) The transshipment includes frozen fish caught by longline gear;
(v) The transshipment takes place entirely within the territorial seas or archipelagic waters of any nation, as defined by the domestic laws and regulations of that nation and recognized by the United States, and only includes fish caught in such waters; or
(vi) The transshipment is an emergency, as specified under § 300.216(b)(4).
(e)
4. Section 300.216 is revised to read as follows:
(a)
(b)
(1)
(i) Fish may not be transshipped from a fishing vessel of the United States equipped with purse seine gear at sea in the Convention Area, and a fishing vessel of the United States may not be used to receive a transshipment of fish from a fishing vessel equipped with purse seine gear at sea in the Convention Area.
(ii) Fish caught in the Convention Area may not be transshipped from a fishing vessel of the United States equipped with purse seine gear at sea, and a fishing vessel of the United States may not be used to receive a transshipment of fish caught in the Convention Area from a fishing vessel equipped with purse seine gear at sea.
(2)
(i) The owner and operator of a fishing vessel of the United States used for commercial fishing that offloads or receives a transshipment of HMS at sea in the Convention Area must ensure that a WCPFC observer is on board at least one of the vessels involved in the transshipment for the duration of the transshipment, unless the vessel receiving the transshipment is subject to the provisions of § 300.215(d)(1)(ii).
(ii) A fishing vessel of the United States used for commercial fishing that receives transshipments of HMS at sea in the Convention Area shall not receive such transshipments from more than one vessel at a time unless there is a separate WCPFC observer available on either the offloading or receiving vessel to monitor each additional transshipment.
(3)
(i)
(A) The other vessel involved in the transshipment is flagged to a Member or Cooperating Non-Member of the Commission;
(B) The other vessel involved in the transshipment is on the WCPFC Record of Fishing Vessels;
(C) The other vessel involved in the transshipment is on the WCPFC Interim Register of Non-Member Carrier and Bunker Vessels; or
(D) The transshipment takes place entirely within the territorial seas or archipelagic waters of any nation, as defined by the domestic laws and regulations of that nation and recognized by the United States, and only includes fish caught within such waters.
(ii)
(A) The other vessel involved in the bunkering or exchange of supplies or provisions is flagged to a Member or a Cooperating Non-Member of the Commission;
(B) The other vessel involved in the bunkering or exchange of supplies or provisions is on the WCPFC Record of Fishing Vessels; or
(C) The other vessel involved in the bunkering or exchange of supplies or provisions is on the WCPFC Interim Register of Non-Member Carrier and Bunker Vessels.
(4)
(c)
(i) The vessel transferring the fish is a fishing vessel of the United States equipped with purse seine gear;
(ii) The vessel transferring the fish has insufficient well space for the fish;
(iii) The vessel transferring the fish engages in no additional purse seine sets during the remainder of the fishing trip; and
(iv) The vessel accepting the fish is a fishing vessel of the United States equipped with purse seine gear.
(2) Only fishing vessels of the United States that are authorized to be used for fishing in the EEZ may engage in net sharing in the EEZ, subject to the provisions of paragraph (c)(1) of this section.
5. In § 300.218, paragraph (b) is revised and paragraphs (c), (d), (e) and (f) are added to read as follows:
(b)
(1) For vessels licensed under § 300.32, the original transshipment report is submitted to the address specified by the Pacific Islands Regional Administrator by the due date specified at § 300.34(c)(2) for submitting the transshipment logsheet form to the Administrator as defined at § 300.31.
(2) For vessels registered for use under § 660.707 of this title, the original transshipment report is submitted to the address specified by the Pacific Islands Regional Administrator by the due date specified for the logbook form at § 660.708 of this title.
(3) For vessels subject to the requirements of § 665.14(c) and § 665.801(e) of this title, and not subject to the requirements of paragraphs (b)(1) or (b)(2) of this section, the original transshipment report is submitted to the address specified by the Pacific Islands Regional Administrator by the due date specified at § 665.14(c) of this title for submitting transshipment logbooks to the Pacific Islands Regional Administrator for landings of western Pacific pelagic management unit species.
(4) For all transshipments on the high seas and emergency transshipments that meet the conditions described in § 300.216(b)(4), including transshipments involving the categories of vessels specified in paragraphs (b)(1), (b)(2), and (b)(3) of this section, the report is submitted by fax or email to the address specified by the Pacific Islands Regional Administrator no later than 10 calendar days after completion of the transshipment. The report may be submitted with or without signatures so long as the original transshipment report with signatures is submitted to the address specified by the Pacific Islands Regional Administrator no later than 15 calendar days after the vessel first enters into port or 15 calendar days after completion of the transshipment for emergency transshipments in port.
(5) For all other transshipments at sea, the original transshipment report is submitted to the address specified by the Pacific Islands Regional Administrator no later than 72 hours after the vessel first enters into port.
(6) For all other transshipments in port, the original transshipment report is submitted to the address specified by the Pacific Islands Regional Administrator no later than 72 hours after completion of the transshipment.
(c)
(d)
(i) The name of the offloading vessel.
(ii) The vessel identification markings located on the hull or superstructure of the offloading vessel.
(iii) The name of the receiving vessel.
(iv) The vessel identification markings located on the hull or superstructure of the receiving vessel.
(v) The expected amount, in metric tons, of fish product to be transshipped, broken down by species and processed state.
(vi) The expected date or dates of the transshipment.
(vii) The expected location of the transshipment, including latitude and longitude to the nearest tenth of a degree.
(viii) An indication of which one of the following areas the expected transshipment location is situated: high seas inside the Convention Area; high seas outside the Convention Area; or an area under the jurisdiction of a particular nation, in which case the nation must be specified.
(ix) The expected amount of HMS to be transshipped, in metric tons, that was caught in each of the following areas: inside the Convention Area, on the high seas; outside the Convention Area, on the high seas; and within areas under the jurisdiction of particular nations, with each such nation and the associated amount specified. This information is not required if the reporting vessel is the receiving vessel.
(2)
(i) The name of the offloading vessel.
(ii) The vessel identification markings located on the hull or superstructure of the offloading vessel.
(iii) The name of the receiving vessel.
(iv) The vessel identification markings located on the hull or superstructure of the receiving vessel.
(v) The expected or actual amount, in metric tons, of fish product transshipped, broken down by species and processed state.
(vi) The expected or actual date or dates of the transshipment.
(vii) The expected or actual location of the transshipment, including latitude and longitude to the nearest tenth of a degree.
(viii) An indication of which one of the following areas the expected or actual transshipment location is situated: high seas inside the Convention Area; high seas outside the Convention Area; or an area under the jurisdiction of a particular nation, in which case the nation must be specified.
(ix) The amount of HMS to be transshipped, in metric tons, that was caught in each of the following areas: inside the Convention Area, on the high seas; outside the Convention Area, on
(x) The reason or reasons for the emergency transshipment (i.e., a transshipment conducted under circumstances of force majeure or other serious mechanical breakdown that could reasonably be expected to threaten the health or safety of the vessel or crew or cause a significant financial loss through fish spoilage).
(3)
(e)
(f)
(2)
6. In § 300.222, paragraph (y) is revised and paragraphs (ee), (ff), (gg), (hh), (ii), (jj), (kk), (ll), (mm) (nn), (oo), (pp), and (qq) are added to read as follows:
(y) Discard fish at sea in the Convention Area in contravention of § 300.223(d).
(ee) Fail to carry on board a WCPFC observer during a transshipment at sea, as required in § 300.215(d).
(ff) Offload, receive, or load fish caught in the Convention Area from a purse seine vessel at sea in contravention of § 300.216.
(gg) Fail to ensure that a WCPFC observer is on board at least one of the vessels involved in the transshipment for the duration of the transshipment in contravention of § 300.216(b)(2)(i), except as specified at § 300.216(b)(4).
(hh) Receive transshipments from more than one fishing vessel at a time in contravention of § 300.216(b)(2)(ii), except as specified at § 300.216(b)(4).
(ii) Transship to or from another vessel, in contravention of § 300.216(b)(3)(i), except as specified at § 300.216(b)(4).
(jj) Provide bunkering, receive bunkering, or exchange supplies or provisions with another vessel, in contravention of § 300.216(b)(3)(ii).
(kk) Engage in net sharing except as specified under § 300.216(c).
(ll) Fail to submit, or ensure submission of, a transshipment report as required in § 300.218(b), except as specified under § 300.218(c).
(mm) Fail to submit, or ensure submission of, a transshipment notice as required in § 300.218(d).
(nn) Transship more than 24 nautical miles from the location indicated in the transshipment notice, in contravention of § 300.218(d)(3).
(oo) Fail to submit, or ensure submission of, a discard report as required in § 300.218(e).
(pp) Fail to submit, or ensure submission of, a net sharing report as required in § 300.218(f).
(qq) Fail to submit, or ensure submission of, an entry or exit notice for the Eastern High Seas Special Management Area as required in § 300.225.
7. In § 300.223, paragraph (d)(3) introductory text is revised to read as follows:
(d) * * *
(3) An owner and operator of a fishing vessel of the United States equipped with purse seine gear must ensure the retention on board at all times while at sea within the Convention Area any bigeye tuna (
8. Section 300.225 is added to read as follows:
(a)
(1) The vessel identification markings located on the hull or superstructure of the vessel;
(2) Date and time (in UTC) of anticipated point of entry;
(3) Latitude and longitude, to nearest tenth of a degree, of anticipated point of entry;
(4) Amount of fish product on board at the time of the notice, in kilograms, in total and for each of the following species or species groups: yellowfin tuna, bigeye tuna, albacore, skipjack tuna, swordfish, shark, other; and
(5) An indication of whether the vessel intends to engage in any transshipments prior to exiting the Eastern High Seas Special Management Area.
(b)
(1) The vessel identification markings located on the hull or superstructure of the vessel.
(2) Date and time (in UTC) of anticipated point of exit.
(3) Latitude and longitude, to nearest tenth of a degree, of anticipated point of exit.
(4) Amount of fish product on board at the time of the notice, in kilograms, in total and for each of the following species or species groups: yellowfin tuna, bigeye tuna, albacore, skipjack tuna, swordfish, shark, other; and
(5) An indication of whether the vessel has engaged in or will engage in any transshipments prior to exiting the Eastern High Seas Special Management Area.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed specifications; request for comments.
NMFS proposes specifications for the 2012 Atlantic bluefish fishery, including an annual catch limit, total allowable landings, a commercial quota and recreational harvest limit, and a recreational possession limit. The intent of this action is to establish the allowable 2012 harvest levels and other management measures to achieve the target fishing mortality rate, consistent with the Atlantic Bluefish Fishery Management Plan.
Comments must be received on or before March 1, 2012.
You may submit comments, identified by NOAA–NMFS–2012–0003, by any one of the following methods:
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NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Copies of the specifications document, including the Environmental Assessment and Initial Regulatory Flexibility Analysis (EA/IRFA) and other supporting documents for the specifications, are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The specifications document is also accessible via the Internet at:
Carly Bari, Fishery Management Specialist, (978) 281–9224.
The Atlantic bluefish fishery is managed cooperatively by the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission). The management unit for bluefish specified in the Atlantic Bluefish Fishery Management Plan (FMP) is U.S. waters of the western Atlantic Ocean. Regulations implementing the FMP appear at 50 CFR part 648, subparts A and J. The regulations requiring annual specifications are found at § 648.16.
The FMP requires the Council to recommend, on an annual basis, annual catch limit (ACL), annual catch target (ACT), and total allowable landings (TAL) that will control fishing mortality (F). An estimate of annual discards is deducted from the ACT to calculate the TALs that can be harvested during the year by the commercial and recreational fishing sectors. The FMP requires that 17 percent of the ACT be allocated to the commercial fishery, with the remaining 83 percent allocated to the recreational fishery. The Council may also recommend a research set-aside (RSA) quota, which is deducted from the bluefish TALs (after any applicable transfer) in an amount proportional to the percentage of the overall TAL as allocated to the commercial and recreational sectors.
The annual review process for bluefish requires that the Council's Bluefish Monitoring Committee and Scientific and Statistical Committee (SSC) review and make recommendations based on the best available data, including, but not limited to, commercial and recreational catch/landing statistics, current estimates of fishing mortality, stock abundance, discards for the recreational fishery, and juvenile recruitment. Based on the recommendations of the Monitoring Committee and SSC, the Council makes a recommendation to the NMFS Northeast Regional Administrator. Because this FMP is a joint plan, the Commission also meets during the annual specification process to adopt complementary measures.
The Council's recommendations must include supporting documentation concerning the environmental, economic, and social impacts of the recommendations. NMFS is responsible for reviewing these recommendations to ensure that they achieve the FMP objectives, and may modify them if they do not. NMFS then publishes proposed specifications in the
According to Amendment 1 to the FMP, overfishing for bluefish occurs when F exceeds the fishing mortality rate that allows maximum sustainable yield (F
An age-structured assessment program (ASAP) model for bluefish was approved by the 41st Stock Assessment Review Committee (SARC 41) in 2005 to estimate F and annual biomass. In June 2011, the ASAP model was updated in order to estimate the current status of the bluefish stock (i.e., 2010 biomass and F estimates) and enable the Monitoring Committee and SSC to recommend 2012 specifications using landings information and survey indices through the 2010 fishing year. The results of the assessment update were as follows: (1) An estimated stock biomass for 2010, B
Following the framework implemented by the Council's ACL Omnibus Amendment, the Council recommended that ACL be set to acceptable biological catch (ABC) (32.044 million lb, 14,535 mt). No deductions were recommended to account for management uncertainty, therefore ABC = ACL = ACT. The ACT is initially allocated between the recreational fishery (83 percent = 26.597 million lb, 12,064 mt) and the commercial fishery (17 percent = 5.448 million lb, 2,471 mt). After deducting an estimate of recreational discards (commercial discards are considered negligible), the recreational TAL would be 22.247 million lb (10,091 mt) and the commercial TAL would be 5.448 million lb (2,471 mt).
The FMP specifies that, if 17 percent of the ACT is less than 10.5 million lb, and recreational fishery is not projected to land its harvest limit for the upcoming year, the commercial fishery may be allocated up to 10.5 million lb as its quota, provided that the combination of the projected recreational landings and the commercial quota does not exceed the ACT. The recreational harvest limit (RHL) would then be adjusted downward so that the ACT would be unchanged.
The Council postponed projections of estimated recreational harvest for 2012 until Marine Recreational Fisheries Statistics Survey (MRFSS) landings data through Wave 5 of 2011 became available. In the interim, the 3-year average of recreational landings from 2008 through 2010 (16.216 million lb, 7,355 mt) was applied as the estimated recreational harvest for 2012. As such, it was expected that a transfer of up to 5.052 million lb (2,291 mt) from the recreational sector to the commercial sector could be approved. This option represents the preferred alternative recommended by the Council in its specifications document. The actual transfer amount in the final rule, if any, will depend on the 2011 recreational landings data.
Three research projects that would utilize bluefish RSA quota have been preliminarily approved and forwarded to NOAA's Grants Management Division. An 847,997-lb (385-mt) RSA quota is preliminarily approved for use by these projects during 2012. Proportional adjustments of this amount to the commercial and recreational allocations would result in a final commercial quota of 10.185 million lb (4,620 mt) and a final RHL of 17.234 million lb (7,817 mt). NMFS staff will update the commercial and recreational allocations based on the final 2012 RSA awards as part of the final rule for the 2012 specifications.
The Council recommended, and NMFS proposes, to maintain the current recreational possession limit of up to 15 fish per person to achieve the RHL.
The proposed state commercial allocations for the recommended 2012 commercial quota are shown in Table 1, based on the percentages specified in the FMP. These quotas do not reflect any adjustments for quota overages that may have occurred in some states in 2011. Any potential deductions for states that exceeded their quota in 2011 will be accounted for in the final rule.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Atlantic Bluefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
These proposed specifications are exempt from review under Executive Order 12866.
An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA), which describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this preamble and in the
Small businesses operating in commercial and recreational (i.e., party and charter vessel operations) fisheries have been defined by the Small Business Administration as firms with gross revenues of up to $4.0 and $6.5 million, respectively. The categories of small entities likely to be affected by this action include commercial and charter/party vessel owners holding an active Federal permit for Atlantic bluefish, as well as owners of vessels that fish for Atlantic bluefish in state waters. All federally permitted vessels fall into the definition of small businesses; thus, there would be no disproportionate impacts between large and small entities as a result of the proposed rule.
An active participant in the commercial sector was defined as any vessel that reported having landed 1 or more lb (0.45 kg) in the Atlantic bluefish fishery in 2010 (the most recent year for which there are complete data). The active participants in the commercial sector were defined using two sets of data. The Northeast seafood dealer reports were used to identify 718 vessels that landed bluefish in states from Maine through North Carolina in 2010. However, the Northeast dealer database does not provide information about fishery participation in South Carolina, Georgia, or Florida. South Atlantic Trip Ticket reports were used to identify 732 vessels
There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action. In addition, NMFS is not aware of any relevant Federal rules that may duplicate, overlap, or conflict with this proposed rule.
The IRFA in the Draft EA addressed three alternatives (including a no action/status quo alternative) for the 2012 Atlantic bluefish fishery. All quota alternatives considered in this analysis are based on various commercial harvest levels for bluefish (a low, medium, and high level of harvest). For analysis of impacts of Alternatives 1 and 2, the maximum potential RSA quota of 3 percent of the TAL (847,997 lb, 384 mt) was used. For analysis of impacts of Alternative 3, the status quo RSA quota of 105,000 lb (48 mt) was used. For analysis of impacts of Alternative 1, the recommended transfer of 5.052 million lb (2,291 mt) from the recreational sector to the commercial sector was used. For analysis of impacts of Alternative 3, the transfer of 4.770 million lb (2,164 mt) from the recreational sector to the commercial sector was used, which is the same as the 2011 transfer amount. Under Alternative 2, no transfer of bluefish would be made from the recreational sector to the commercial sector, and the allocation of the TAL would be based strictly on the percentages specified in the FMP (17 percent commercial, 83 percent recreational).
Alternatives 1 and 2 would implement a TAL of 27.694 million lb (12,562 mt). Alternative 3 would implement status quo management measures for 2012, which would result in a TAL identical to the 2011 TAL, or 27.293 million lb (12,380 mt). The proposed 2012 Atlantic bluefish specification alternatives are shown in Table 2, along with the resulting commercial quota and RHL after any applicable transfer described earlier in the preamble and after deduction of the RSA quota. Alternative 1 (Council's preferred) would allocate 10.185 million lb (4,620 mt) to the commercial sector and 17.234 million lb (7,817 mt) to the recreational sector. Alternative 2 would result in the most restrictive commercial quota and would allocate 5.284 million lb (2,397 mt) to the commercial sector and leave 22.134 million lb (10,040 mt) available to the recreational sector. Alternative 3 (status quo) would allocate 9.375 million lb (4,252 mt) to the commercial sector and 17.813 million lb (8,080 mt) to the recreational sector. This alternative would also implement the status quo RSA level, which is currently approved for 105,000 lb (48 mt).
To assess the impact of the alternatives on commercial fisheries, the Council conducted a threshold analysis and analysis of potential changes in ex-vessel gross revenue that would result from each alternative, using Northeast dealer reports and South Atlantic Trip Ticket reports.
Under Alternative 1, the recommended commercial quota for 2012 is approximately 40 percent higher than 2010 commercial landings. When this commercial quota is distributed to the states from Maine to Florida (based on the percentages specified in the FMP), each state's 2012 quota is higher than its 2010 landings. Results of the threshold analysis from dealer data estimated that there would be no revenue change relative to 2010 for vessels that reported landings of bluefish in 2010. If commercial quota is transferred from a state or states that do not land their entire bluefish quota for 2012, as was done in 2011 and frequently in previous years, the number of affected entities could change, thus changing the adverse economic impact on vessels landing in the state(s) receiving quota transfers.
Alternative 2 would result in a commercial quota 28 percent below the 2010 commercial landings. Although the overall commercial quota is lower than 2010 commercial landings, when distributed to the states, each state's 2012 quota is higher than its 2010 landings, except for Massachusetts, New York, New Jersey, and North Carolina. For these states, 2012 commercial landings would be constrained by the 2012 commercial quota under Alternative 2. The threshold analysis projected that 464 vessels could incur revenue losses of less than 5 percent and 62 vessels could incur revenue losses of 5 percent or more. Of the vessels likely to be impacted with revenue reductions of 5 percent or more, 34 percent had gross sales of $1,000 or less and 55 percent had gross sales of $10,000 or less, which may indicate that the dependence on fishing for some of these vessels is small.
Under Alternative 3, the 2011 commercial quota is approximately 29 percent higher than the 2010 commercial landings. Most states show a similar increase in fishing opportunities under this alternative; however, North Carolina's 2012 commercial quota would be lower than its 2010 commercial landings. Analysis of Alternative 3 concluded that 644 vessels would likely have no change in revenue relative to 2010, and 74 vessels were projected to incur revenue losses of less than 5 percent. No revenue reduction would be expected for vessels that land bluefish in North Carolina or Florida under Alternative 3. If commercial quota is transferred from a state or states that do not land their entire bluefish quota for 2012, as was done in 2011 and frequently in previous years, the number of affected entities described above could decrease, thus decreasing the adverse economic impact on vessels landing in the state(s) receiving quota transfers.
For Alternative 1, the recommended RHL for the recreational sector (17.234 million lb, 7,817 mt) is approximately 7 percent above the recreational landings for 2010 (16.166 million lb, 7,333 mt) and 3 percent below the RHL implemented for 2011 (17.813 million lb, 8,080 mt). It is not anticipated that the recommend RHL will result in decreased in the demand for party/charter boat trips or affect angler participation in a negative manner. At the present time, there are neither behavioral or demand data available to estimate how sensitive party/charter boat anglers might be to proposed fishing regulations. However, given the level of the adjusted recreational harvest limit for 2012 and recreational landings in recent years, it is possible that given the proposed recreational harvest limits under Alternative 1, the demand for party/charter boat trips may not be negatively impacted. The impacts under Alternative 2 and 3 are expected to be similar to the recreational impacts under Alternative 1. The IRFA analyzed the maximum transfer amount from the recreational sector to the commercial sector, but future updates of recreational harvest projections could result in a smaller transfer amount, resulting in a high RHL.
The 2012 RHL under Alternative 2 would be 37 percent higher than the recreational landings in 2010 and 49 percent higher than the 2011 RHL. Under Alternative 3, the 2012 RHL would be 37 percent higher than 2010 recreational landings and less than 1 percent lower than the 2011 RHL. Thus, Alternatives 2 and 3 are not expected to have any negative effects on recreational fishermen or the demand for party/charter boat trips. In addition, neither of these alternatives are expected to result in recreational landings in excess of the RHL.
For analysis of each alternative, the maximum RSA quota amount (3 percent of the TAL) was deducted from the initial overall TAL for 2012 to derive the adjusted 2012 commercial quota and RHL under each alternative. Thus, the threshold analyses for each alternative accounted for overall reductions in fishing opportunities due to RSA. Specification of RSA quota for 2012 is expected to benefit all participants in the fishery as a result of improved data and information for management or stock assessment purposes.
The Council recommended Alternative 1 over Alternatives 2 and 3 because it is projected to achieve the target F in 2012, while providing the second least restrictive commercial quota among the alternatives analyzed. Alternative 2 was not recommended by the Council because it would yield the lowest commercial fishing opportunities among the alternatives due to an absence of a quota transfer under this alternative. Alternative 3 was not selected because it would more restrictive than necessary given the advice of the SSC and Monitoring Committee.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
This rule proposes 19 Northeast (NE) multispecies (groundfish) sector operations plans and contracts for fishing year (FY) 2012, and would allocate quotas of NE multispecies to the sectors. The NE Multispecies Fishery Management Plan (FMP) requires sectors to submit their operations plans and contracts to NMFS for approval or disapproval. Approval of a sector operations plan and contract is necessary for that sector to be allocated fish, and allows the sector members to be exempted from certain effort control regulations. If a sector operations plan and contract is not approved, the members of that sector must fish in the common pool and comply with all existing regulations. This rule also notifies the public that NMFS is extending the deadline to join a sector for FY 2012 through April 30, 2012. NMFS is soliciting comment on the proposed operations plans and contracts, and our proposal to grant 25 of the 49 exemptions requested, and deny the rest.
Written comments must be received on or before March 1, 2012.
You may submit comments on this document, identified by NOAA–NMFS–2011–0264, by any of the following methods:
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Mark Grant, Sector Policy Analyst, phone (978) 281–9145, fax (978) 281–9135.
The NE groundfish sector management system is a voluntary system that allocates a portion of groundfish stocks to self-selecting groups of permit holders, called sectors. Sector members are granted increased operational flexibility through exemptions from regulations in exchange for taking on additional responsibility. The annual allocations to sectors are called Annual Catch Entitlements (ACE) and are based on the collective fishing history of the sectors' members. Sectors are self-selecting, meaning each sector can choose its members. Sectors may pool harvesting resources and consolidate operations to fewer vessels, if they desire.
NMFS received operations plans and preliminary contracts for FY 2012 from 19 sectors (see Table 1). The Administrator of NMFS for the NE Region (Regional Administrator) has made a preliminary determination that the 19 sector operations plans and contracts are consistent with the goals of the FMP, and comply with the measures that govern operation of a sector. This proposed rule summarizes many of the sector requirements and solicits comments on the proposed operations plans, our proposal to grant 25 of the 49 regulatory exemptions requested by the sectors and deny the rest, and the environmental assessment (EA). Copies of the operations plans and contracts, and the EA are available at
Amendment 13 to the FMP (69 FR 22906, April 27, 2004) established a process for forming sectors within the groundfish fishery, implemented restrictions applicable to all sectors, and authorized allocation of a total allowable catch (TAC) for specific groundfish species to a sector. Amendment 16 to the FMP (74 FR 18262, April 9, 2010) expanded sector management, revised the 2 existing sectors to comply with the expanded sector rules (summarized below), and authorized an additional 17, for a total of 19 sectors. Framework Adjustment (FW) 45 to the FMP (76 FR 23042, April 25, 2011) further revised the rules for sectors and authorized 5 new sectors (for a total of 24 sectors).
The FMP defines a sector as “[a] group of persons (three or more persons, none of whom have an ownership interest in the other two persons in the sector) holding limited access vessel permits who have voluntarily entered into a contract and agree to certain fishing restrictions for a specified period of time, and which has been granted a TAC(s) [sic] in order to achieve objectives consistent with applicable FMP goals and objectives.” A sector's TAC is referred to as an ACE. Regional Administrator approval is required for a sector to be authorized to fish and to be allocated an ACE for stocks of regulated NE multispecies. Each individual sector's ACE for a particular stock represents a share of that stock's annual catch limit (ACL) available to commercial NE multispecies vessels, and each ACE is based upon the landings history of permits participating in that sector.
Nineteen sectors submitted operations plans and sector contracts, and requested allocation of stocks regulated under the FMP for FY 2012. The submitted operations plans are similar to previously approved versions, but incorporate changes to incorporate the requested exemptions. Five sectors chose not to submit operations plans and contracts for FY 2012: The Georges Bank (GB) Cod Hook Sector; Northeast Fishery Sector I; the State of New Hampshire Permit Bank Sector; the Commonwealth of Massachusetts Permit Bank Sector; and the State of Rhode Island Permit Bank Sector. The State of
As of December 1, 2011, 843 of the 1,475 eligible NE multispecies permits have preliminarily enrolled in a sector for FY 2012. These permits account for approximately 99 percent of the FY 2012 commercial groundfish sub-ACL. Table 1 includes a summary of permits enrolled in a sector as of December 1, 2011. Permits enrolled in a sector, and the vessels associated with those permits, have until April 30, 2012, to withdraw from a sector and fish in the common pool for FY 2012. NMFS will publish final sector ACEs and common pool sub-ACL totals, based upon final rosters, as soon as possible after the start of FY 2012.
Sector ACEs are calculated by summing the potential sector contributions (PSC) of a sector's members for a stock and then multiplying that percentage by the available commercial sub-ACL for that stock. Table 2 shows the cumulative percentage of each commercial sub-ACL each sector would receive, based on their rosters as of December 1, 2011. Tables 3 and 4 show the ACEs each sector would be allocated based on their December 1, 2011, sector rosters for FY 2012. The final ACEs, to the nearest pound, are provided to the individual sectors by NMFS and NMFS uses those final ACEs for monitoring sector catch. While the common pool does not receive a specific allocation of ACE, the common pool sub-ACLs have been included in each of these tables for comparison.
Individual permits are not assigned a PSC for Eastern GB cod or Eastern GB haddock; rather each sector's GB cod and GB haddock allocation is divided into a Western ACE and an Eastern ACE for each stock. A sector's Eastern GB cod and haddock ACEs are to be harvested exclusively in the Eastern U.S./Canada Area and are based on the sector's percentage of the GB cod and haddock ACLs. For example, if a sector is allocated 4 percent of the GB cod ACL and 6 percent of the GB haddock ACL, the sector is allocated 4 percent of the Eastern U.S./Canada Area GB cod TAC and 6 percent of the Eastern U.S./Canada Area GB haddock TAC as its Eastern GB cod and haddock ACEs. These amounts are then subtracted from the sector's overall GB cod and haddock allocations to determine its Western GB cod and haddock ACEs.
At the start of FY 2012, NMFS will withhold 20 percent of each sector's FY 2012 ACE for each stock to allow time to process any FY 2011 ACE transfers and to determine whether the FY 2012 ACE allocated to any sector needs to be reduced, or any overage penalties need to be applied to accommodate an FY 2011 ACE overage by that sector. Sectors will be allowed to trade ACE for 2 weeks following the finalization of sector catch for FY 2012 to balance any overages. The New England Fishery Management Council (Council) and sector managers will be notified of this deadline in writing and the decision will be announced on the NMFS Northeast Regional Office (
NMFS received nineteen sector operations plans and contracts by the September 1, 2011, deadline, and subsequently received preliminary rosters by the December 1, 2011, deadline for FY 2012. Each sector has elected to submit a single document that is both the sector's contract and the sector's operations plan. Therefore, these submitted operations plans not only contain the rules under which each sector would fish, but also provide the legal contract that binds the sector's members to the sector and its operations plan.
Each sector conducts fishing activities according to its approved operations plan; however, each operations plan and sector member must comply with the regulations governing sectors, which are found at § 648.87. All permit holders with a limited access NE multispecies permit that was valid as of May 1, 2008, are eligible to participate in a sector, including holders of inactive permits currently held in confirmation of permit history (CPH). While membership in each sector is voluntary, each member (and his/her permits enrolled in the sector) must remain with the sector for the entire FY, and cannot fish in the NE multispecies days-at-sea (DAS) program outside of the sector (i.e., in the common pool) during the FY. Participating vessels are required to comply with all pertinent Federal fishing regulations, except as specifically exempted by a letter of authorization (LOA) issued by the Regional Administrator. Sector operations plans may be amended in-season if a change is necessary and agreed to by NMFS, provided the change is consistent with the sector administration provisions. These changes are included in updated LOAs issued to sector members and through amendments to the approved operations plan.
Sectors are allocated all large-mesh groundfish stocks for which members have landings history, with the exception of Atlantic halibut, windowpane flounder, Atlantic wolffish, and the Southern New England/Mid-Atlantic (SNE/MA) stock of winter flounder. Atlantic halibut, ocean pout, northern windowpane flounder, and southern windowpane flounder are not allocated to sectors because these stocks have small ACLs, and vessels have limited landings history. Allocating these stocks to sectors would complicate monitoring of sector operations and would require a different scheme for determining each permit's potential sector contribution.
Sector vessels are required to retain all legal-sized allocated groundfish, unless an exemption is granted allowing sector vessels to discard legal-sized unmarketable fish at sea. Catch (including discards) of all allocated groundfish stocks by a sector's vessels would count against the sector's ACE, unless the catch is an element of a separate ACL sub-component, such as groundfish caught when fishing in an exempted fishery, or yellowtail flounder caught when fishing in the Atlantic sea scallop fishery. Sector vessels fishing for monkfish, skate, lobster (with non-trap gear), and spiny dogfish when on a sector trip (e.g., not fishing under provisions of a NE multispecies exempted fishery) would have their groundfish catch (including discards) on those trips debited against the sector's ACE. Ratios to calculate discards on unobserved sector trips would be determined by NMFS based on observed trips.
Each sector is required to ensure that its ACE is not exceeded during the FY. Amendment 16 required sectors to develop independent third-party dockside monitoring programs (DSM) to verify landings at the time they are weighed by the dealer, and to certify that the landing weights are accurate as reported by the dealer. FW 45 sets the required coverage level for DSM to the level that NMFS could fund. For FY 2012, NMFS will not fund a DSM program; therefore, the DSM level for FY 2012 is zero. Amendment 16 also required that sectors design, implement, and fund an at-sea monitoring (ASM) program beginning in FY 2012. However, for 2012 NMFS will fund and operate an ASM program for all sectors. The ASM coverage rate target is 17 percent, in addition to the expected 8-percent coverage rate of the Northeast Fishery Observer Program (NEFOP). These two programs are expected to result in coverage of 25 percent of all sector trips and will be the basis for calculating discards by sector vessels. This level of observer coverage has been considered sufficient to monitor sector fishing activity for purposes of calculating when ACLs have been achieved.
Sectors are required to monitor their landings and available ACE, and submit weekly catch reports to NMFS. In addition, the sector manager is required to provide NMFS with aggregate sector reports on a daily basis when a threshold (specified in the operations plan) is reached. Once a sector's ACE for a particular stock is caught, a sector is required to cease all fishing operations in that stock area until it could acquire additional ACE for that stock. ACE may be transferred between sectors, but ACE transfers to or from common pool vessels is prohibited. Each sector must submit an annual report to NMFS and the Council within 60 days of the end of the FY detailing the sector's catch (landings and discards by the sector), enforcement actions, and pertinent information necessary to evaluate the biological, economic, and social impacts from the sector, as directed by NMFS.
Each sector contract provides procedures to enforce the sector operations plan, explains sector monitoring and reporting requirements, presents a schedule of penalties, and provides authority to sector managers to issue stop fishing orders to sector members that violate provisions of the operations plan and contract. Sector members can be held jointly and severally liable for ACE overages, discarding of legal-sized fish, and/or misreporting of catch (landings or discards). Each sector operations plan submitted for FY 2012 states that the sector will withhold an initial reserve from the sector's sub-allocation to each individual member to prevent the sector from exceeding its ACE. Each sector contract also details the method for initial ACE allocation to sector members; for FY 2012, each sector has proposed that each sector member could harvest an amount of fish equal to the amount each individual member's permit contributed to the sector's ACE.
Amendment 16 contains several “universal” exemptions that apply to all sectors. These universal exemptions apply to: Trip limits on allocated stocks; the GB Seasonal Closure Area; NE multispecies DAS restrictions; the requirement to use a 6.5-inch (16.5-cm) mesh codend when fishing with selective gear on GB; and portions of the Gulf of Maine (GOM) Rolling Closure Areas.
Sectors may request additional exemptions from NE multispecies regulations through their sector operations plan. Amendment 16 prohibits sectors from requesting exemptions from year-round closed areas (CA), permitting restrictions, gear restrictions designed to minimize habitat impacts, and reporting requirements (excluding DAS reporting requirements or DSM requirements). If an exemption is granted to a sector, each sector vessel is issued a LOA by NMFS authorizing the exemption for each such vessel.
A total of 49 exemptions from the NE multispecies regulations have been requested by sectors through their FY 2012 operations plans. These requests
In FY 2011, sectors were exempted from the following; and these exemptions have again been requested for FY 2012: (1) 120-day block out of the fishery required for Day gillnet vessels; (2) 20-day spawning block out of the fishery required for all vessels; (3) limits on the number of gillnets imposed on Day gillnet vessels; (4) prohibition on a vessel hauling another vessel's gillnet gear; (5) limits on the number of gillnets that may be hauled on GB when fishing under a groundfish/monkfish DAS; (6) limits on the number of hooks that may be fished; (7) DAS Leasing Program length and horsepower restrictions; (8) the GOM Sink Gillnet Mesh Exemption January through April; (9) extension of the GOM Sink Gillnet Mesh Exemption through May; (10) prohibition on discarding; (11) daily catch reporting by sector managers for sector vessels participating in the CA I Hook Gear Haddock Special Access Program (SAP); (12) gear requirements in the U.S./Canada Management Area; (13) powering vessel monitoring systems (VMS) while at the dock; (14) DSM for vessels fishing west of 72°30′W. long.; (15) DSM for Handgear A-permitted sector vessels; and (16) DSM for monkfish trips in the monkfish Southern Fishery Management Area (SFMA).
In addition, sectors have requested exemptions from the following requirements in FY 2012: (17) Seasonal restrictions for the Eastern U.S./Canada Haddock SAP; (18) seasonal restriction for the CA II Yellowtail Flounder/Haddock SAP; (19) prohibition on fishing inside and outside of the CA I Hook Gear Haddock SAP while on the same trip; (20) maximum ACE carry-over provision; (21) ACE buffer provision; (22) 6.5-inch (16.5-cm) minimum mesh size requirement for trawl nets; (23) minimum fish size provisions for haddock; (24) prohibition on a vessel hauling another vessel's hook gear; and (25) the requirement to declare intent to fish in the Eastern U.S./Canada SAP and the CA II Yellowtail Flounder/Haddock SAP prior to leaving the dock. We propose to approve the above 25 exemption requests for FY 2012.
We propose denying exemptions from the following 13 requirements because they are prohibited by FMP regulations: (26) Year-round access to the Cashes Ledge Closure Area; (27) year-round access to CA I; (28) year-round access to CA II; (29) year-round access to the Western GOM Closure Area; (30) extrapolation of discarded fish pieces across strata; (31) authorization to use video monitoring in place of ASM; (32) all hail requirements; (33) year-round access to the Eastern U.S./Canada Area; (34) ASM for sector vessels; (35) ASM for trips targeting dogfish; (36) ASM for hook-only and Handgear A vessels; (37) ASM for extra-large mesh gillnet vessels; and (38) the ASM standard for random trip selection.
We propose denying exemptions from the following 8 requirements because they were previously rejected, and sector applicants provided no new information: (39) minimum fish sizes to allow 100-percent retention; (40) minimum fish sizes to retain 12-inch (30.5-cm) yellowtail flounder; (41) VMS messages be sent directly to NMFS; (42) weekly catch report requirements; (43) prohibition on pair trawling; (44) minimum hook size; (45) 6.5-inch (16.5-cm) minimum mesh size for trawls to allow 5-inch (12.7-cm) mesh when targeting redfish; and (46) to submit a sector roster by the deadline. Exemptions 39 through 46 are not analyzed in the EA because no new information was available to change the analyses previously published in past EAs. Detailed information on these exemption requests and the reasons they were previously denied is contained in the proposed and final sector rules for FY 2010 (74 FR 68015, December 22, 2009, and 75 FR 18113, April 9, 2010, respectively) and the proposed and final sector rules for FY 2011 (76 FR 10852, February 28, 2011, and 76 FR 23076, April 25, 2011, respectively).
We propose denying exemptions from the following 3 requirements because they may jeopardize rebuilding of the GOM cod stock: (47) the April GOM Rolling Closure Area (RCA); (48) the May GOM RCA; and (49) the June GOM RCA. The draft EA contains analysis of exemptions 47 through 49 that was developed prior to the recent GOM cod stock assessment. NMFS is not proposing these exemptions because of the recent stock assessment. Therefore, the analysis will not be included in the final EA and the final EA will list these exemptions as considered, but rejected.
NMFS solicits public comment on the proposed sector operations plans and our proposal to grant 25 of the 49 requested exemptions, and deny the rest, as well as the EA prepared for this action. NMFS is particularly interested in receiving comments on the proposed exemptions from SAP seasons (numbers 17 and 18) and ACE carryover limits (number 20) because of concerns regarding the potential impacts of these exemptions.
On February 3, 2012, NMFS listed the GOM distinct population segment (DPS) of Atlantic sturgeon as threatened, and listed the New York Bight, Chesapeake Bay, Carolina, and South Atlantic DPSs of Atlantic sturgeon as endangered. The Biological Opinion for the NE multispecies fisheries will be reinitiated, and additional evaluation will be included to describe any impacts of the fisheries on Atlantic sturgeon and define any measures needed to mitigate those impacts, if necessary. NMFS anticipates that any measures, terms and conditions included in an updated Biological Opinion will further reduce impacts to the species and that the Biological Opinion will be completed before the beginning of the 2012 NE multispecies fishing year on May 1, 2012.
The requirement for Day gillnet vessels to take 120 days out of the fishery was implemented in 1997 under FW 20 (62 FR 15381, April 1, 1997) to help ensure that management measures for Day gillnet vessels were comparable to effort controls placed on other fishing gear types, because gillnets continue to fish as long as they are in the water. Regulations at § 648.82(j)(1)(ii) require that each NE multispecies gillnet vessel declared into the Day gillnet category declare and take 120 days out of the non-exempt gillnet fishery. Each period of time taken out of the fishery must be a minimum of 7 consecutive days, and at least 21 of the 120 days must be taken between June 1 and September 30. An exemption from this requirement was previously approved for FYs 2010 and
Vessels are required to declare out and be out of the NE multispecies DAS program for a 20-day period each calendar year between March 1 and May 31, when spawning is most prevalent in the GOM (§ 648.82(g)). This regulation was developed to reduce fishing effort on spawning groundfish stocks and an exemption was approved for FYs 2010 and 2011 because the sectors' ACE will restrict fishing mortality, making this measure no longer necessary as an effort control. Exempting sectors from this requirement would provide vessel owners with greater flexibility to plan operations according to fishing and market conditions.
The NE Multispecies FMP limits the number of gillnets a Day gillnet vessel may fish in the groundfish regulated mesh areas (RMA). The limits are specific to the type of gillnet and the RMA: 100 gillnets (of which no more than 50 can be roundfish gillnets) in the GOM RMA (§ 648.80(a)(3)(iv)); 50 gillnets in the GB RMA (§ 648.80(a)(4)(iv)); and 75 gillnets in the Mid-Atlantic (MA) RMA (§ 648.80(b)(2)(iv)). This exemption was previously approved in FYs 2010 and 2011 to allow sector vessels to fish up to 150 nets (any combination of flatfish or roundfish nets) in any RMA to provide greater operational flexibility to sector vessels in deploying gillnet gear. This measure was designed to control fishing effort and, therefore, is no longer necessary for sectors because their ACEs limit overall fishing mortality.
Regulations at §§ 648.14(k)(6)(ii)(A) and 648.84(a) specify the manner in which gillnet gear must be tagged, requiring that information pertinent to the vessel owner or vessel be permanently affixed to the gear. No provisions exist in the regulations allowing for multiple vessels to haul the same gear. An exemption from this regulation was previously approved in FYs 2010 and 2011 to allow a sector to share fixed gear among sector vessels, thereby reducing costs. Consistent with the exemption as originally approved, the sectors requesting this exemption have proposed that all vessels utilizing community fixed gear be jointly liable for any violations associated with that gear. Additionally, each member intending to haul the same gear will be required to tag the gear with the appropriate gillnet tags, consistent with § 648.84(a).
Regulations at § 648.80(a)(4)(iv) prohibiting Day gillnet vessels fishing on a groundfish DAS from possessing, deploying, fishing, or hauling more than 50 gillnets on GB were implemented as a groundfish mortality control under Amendment 13 in 2004. NMFS granted an exemption from the limit on the number of gillnets that may be hauled on GB when fishing under a groundfish/monkfish in FYs 2010 and 2011 because the prohibition was designed to control fishing effort and, therefore, is no longer necessary for sectors because their ACEs limit overall fishing mortality. This exemption allows gillnets deployed under the Monkfish FMP to be hauled more efficiently by vessels that are issued permits under both the multispecies and the monkfish FMPs.
Vessels are prohibited from fishing or possessing more than 2,000 rigged hooks in the GOM RMA, more than 3,600 rigged hooks in the GB RMA, more than 2,000 rigged hooks in the SNE RMA, or more than 4,500 rigged hooks in the MA RMA (§§ 648.80(a)(3)(iv)(B)(
While sector vessels are exempt from the requirement to use NE multispecies DAS to harvest groundfish, sector vessels are allocated, and must use, NE multispecies DAS for specific circumstances. For example, the Monkfish FMP requires that limited access monkfish Category C and D vessels harvesting more than the incidental monkfish possession limit must fish under both a monkfish DAS and a NE multispecies DAS. Therefore, sector vessels may still use, and lease, NE multispecies DAS.
NMFS granted an exemption from the DAS Leasing Program length and horsepower baseline restrictions (§ 648.82(k)(1)(ix)) on DAS leases between vessels within an individual sector, as well as between vessels in different sectors with this exemption, in FYs 2010 and 2011. The DAS Leasing Program restricted transfers of DAS between vessels of different sizes to the existing replaced vessel upgrade restrictions because of concerns about how DAS leases might change the character of the fishery. Groundfish mortality and fishing effort of sector vessels is no longer controlled by DAS, but is instead controlled only by the sector's available ACE. There are no vessel size restrictions on use of a sector's ACE, so continuing the DAS Leasing Program restrictions is no longer an effective method to maintain the character of the NE multispecies fleet. Further, exemption from this restriction allows sector vessels greater flexibility in the utilization of ACE and DAS. ACE and DAS regulations would ensure negligible impacts to allocated target species, and non-allocated target species and bycatch by capping overall mortality. Even with these exemptions, sectors would still be subject to non-allocated target species and bycatch management measures to limit their catch and control mortality. Providing greater flexibility in the distribution of DAS could result in increased effort on non-allocated target stocks, such as monkfish and skates. However, sectors predicted little consolidation and redirection of effort in their FY 2012 operations plans. In addition, any potential redirection in effort would be restricted by the sector's ACE for each stock, as well as by effort controls in other fisheries (e.g., monkfish trip limits and DAS).
Exemptions 8 and 9 are discussed together because of their inter-relatedness; however, approval or disapproval of each of these exemptions is an independent decision. There is a minimum mesh size of 6.5-inch (16.5-cm) for gillnets in the GOM RMA (§ 648.80(a)(3)(iv)). Minimum mesh size requirements have been used to reduce overall mortality on groundfish stocks, as well as to reduce discarding, and improve survival, of sub-legal groundfish. Selectivity studies have indicated that 6.5-inch (16.5-cm) sink gillnets may not be effective at retaining haddock at the current legal minimum fish size. An exemption from this requirement was previously approved for FYs 2010 and 2011 to provide sector vessels the opportunity to potentially catch more GOM haddock, a fully rebuilt stock, during the months that haddock are most prevalent, and to provide sector participants the opportunity to more fully harvest their allocation of GOM haddock. This exemption was initially considered in a supplemental proposed and final rule to FY 2010 sector operations (75 FR 53939, September 2, 2010; and 75 FR 80720, December 23, 2010) and is functionally equivalent to a pilot program that was proposed by the Council in Amendment 16.
Together these exemptions allow sector vessels to use 6-inch (15.24-cm) mesh stand-up gillnets in the GOM RMA from January 1, 2013, to May 30, 2013, when fishing for haddock. The designation of this season is consistent with the original pilot program proposal and is the time period when haddock are most available in the GOM. Sector vessels utilizing this exemption would be prohibited from using tie-down gillnets in the GOM during this period. Sector vessels may transit the GOM RMA with tie-down gillnets, provided they are properly stowed and not available for immediate use in accordance with one of the methods specified at § 648.23(b).
Day gillnet vessels in sectors granted the exemption from Day gillnet net limits, as explained under exemption request 3, will not be subject to the general net limit in the GOM RMA, and will be able to fish up to 150 nets in the GOM RMA. In 2011, NMFS authorized vessels granted both exemptions to fish up to 150 6-inch (15.24-cm) mesh stand-up gillnets in the GOM RMA. For FY 2012, NMFS proposes the same exemption and again requests public comment on the feasibility of allowing up to 150 nets when fishing under this exemption. The LOA issued to sector vessels that qualify for this exemption will specify the net restrictions to help ensure the provision is enforceable. There will be no limit on the number of nets that participating Trip gillnet vessels will be able to fish with, possess, haul, or deploy, during this period, because Trip gillnet vessels are required to remove all gillnet gear from the water before returning to port at the end of a fishing trip.
NMFS believes that impacts to allocated target stocks resulting from this exemption would be negligible, given that fishing mortality by sector vessels is restricted by an ACE for allocated stocks, capping overall mortality. For FY 2010, this exemption was not authorized until the effective date of the FY 2010 Supplemental Sector rule, published in January 2011. Data indicate few trips in FY 2011 used this exemption. In January through May 2011, 63 trips were taken, yielding a catch of 89,208 lb (40,464 kg) from sink gillnet vessels fishing with less than 6.5-inch (16.5-cm) mesh size in the GOM RMA. It is possible that a higher net limit for Day gillnet vessels participating in this program will increase the number of gillnets in the water at any one time and, therefore, potentially increase interactions with protected species. However, potential negative impacts to protected species from this exemption are expected to be low because additional nets may result in greater efficiency, thus potentially reducing interactions with protected species. In addition, sector vessels utilizing this exemption would still be required to comply with all requirements of the Harbor Porpoise Take Reduction Plan and Atlantic Large Whale Take Reduction Plan.
Amendment 16 contains this provision to ensure that the sector's ACE is accurately monitored. Sectors requested a partial exemption from this prohibition because of concerns that retaining and landing large amounts of unmarketable fish, including fish carcasses, creates operational difficulties and potentially unsafe working conditions for sector vessels at sea. The Regional Administrator considered a partial exemption from the requirement to retain all legal-sized fish in a proposed rule in FY 2010. However, due to problematic mid-season implementation issues, further consideration of this exemption was delayed until FY 2011. An exemption from this requirement was approved for FY 2011 to enhance operational flexibility, foster safer working conditions for sector vessels, and relieve the burden on sector vessels and their dealers to dispose of unmarketable fish.
Under this proposed exemption, all legal-sized unmarketable allocated fish would be accounted for in the overall sector-specific discard rates in the same way discards at sea of undersized fish are currently accounted for, based on trips observed by the NEFOP and ASM. If this exemption is approved, unmarketable fish discarded by a sector's vessels on observed trips will be deducted from that sector's ACE and incorporated into that sector's discard rates to account for discarding on unobserved trips. Vessels in a sector opting for this exemption will be required to discard all legal-sized unmarketable fish at sea (i.e., not just on select trips). Legal-sized unmarketable fish would be prohibited from being landed to prevent the potential to skew observed discards. The discarding exemption, in combination with the enhanced reporting of legal-sized unmarketable fish, would improve the monitoring of this unmarketable portion of sector catch, particularly on unobserved sector trips.
Sector vessels declared into the CA I Hook Gear Haddock SAP are required to submit daily catch reports to their sector manager, and their sector manager must report the catch information to NMFS on a daily basis (§ 648.85(b)(7)(v)(C)). This reporting requirement was originally implemented through FW 40A (69 FR 67780, November 19, 2004) to facilitate real-time monitoring of quotas by both the sector manager and NMFS. Amendment 16 grants authority to the Regional Administrator to determine if weekly sector reports were sufficient for the monitoring of most SAPs. Through the final rule implementing Amendment 16, the Regional Administrator alleviated reporting requirements for sector vessels participating in other Special Management Programs (SMPs), but reporting requirements were retained for the CA I Hook Gear Haddock SAP because NMFS must continue to monitor an overall haddock TAC that applies to sector and common pool vessels fishing in this SAP. An exemption was granted in FY 2011 to allow sector vessels participating in the CA I Hook Gear Haddock SAP to submit a daily VMS catch report directly to NMFS. This exemption is consistent with the requirement for common pool
Any NE multispecies vessel fishing with trawl gear in the Eastern U.S./Canada Area must fish with either a Ruhle trawl, a haddock separator trawl, or a flounder trawl (§ 648.85(a)(3)(iii)). The final rule implementing Amendment 13 clarifies that the requirement to use a haddock separator trawl or a flounder trawl net was designed to “ensure that the U.S./Canada TACs are not exceeded. Because both the flounder net and haddock separator trawl are designed to affect cod selectivity, and because the cod TAC is specific to the Eastern U.S./Canada Area only, application of this gear requirement to the Western U.S./Canada Area is not necessary to achieve the stated goal.”
The option to utilize a Ruhle trawl in the Eastern U.S./Canada Area was initially implemented through several in-season actions, and was made permanent in Amendment 16. This gear configuration was originally authorized for its demonstrated ability to allow the targeting of haddock, an under-harvested stock, while reducing bycatch of cod and yellowtail flounder stocks, which were identified as overfished. The addition of the Ruhle Trawl to gear previously approved (haddock separator trawl and flounder trawl net) provided added flexibility to trawl vessels.
An exemption from this requirement was granted in FY 2011 to enhance operational flexibility of sectors because overall fishing mortality would continue to be restrained by the sector ACEs.
Sector vessels are required to have an operational VMS unit onboard (§ 648.10(b)(4)) that transmits accurate positional information (i.e., polling) at least every hour, 24 hr per day, throughout the year (§ 648.10(c)(1)(i)). Amendment 5 (59 FR 9872, March 1, 1994) first included the requirement for vessels to use VMS. While the requirement to use VMS was delayed until implemented by FW 42 (72 FR 73274, December 27, 2007), NMFS supported polling to insure adequacy of monitoring requirements, address enforcement concerns, and because it could be beneficial in the event of an at-sea emergency.
An exemption from this requirement was granted in FY 2011 to lower costs associated with VMS for sector vessels. This exemption is administrative in nature and is anticipated to have negligible impacts beyond cost-savings. Vessels granted the exemption must continue to comply with other reporting requirements (trip end hails, VMS declarations, etc.) and must submit an appropriate powerdown VMS declaration, as explained on their LOA, any time the vessel is underway or away from the dock. In granting the exemption for FY 2011, the Regional Administrator reserved the right to revoke the exemption if it was determined the exemption was being misused or abused, and proposes to do so again if this exemption is granted in FY 2012.
In response to FY 2010 requests for exemption from the DSM requirement for vessels fishing in SNE and MA waters, the Regional Administrator requested that the Council consider establishing a geographic boundary outside of which DSM would not be required. The Council responded in FW 45 by removing DSM from the list of prohibited exemptions to allow sectors to request geographic- and gear-based exemptions from DSM. This exemption was granted in FYs 2010 and 2011 based on data showing that little groundfish is caught in the area.
Generally, sectors using this exemption must still comply with any DSM program specified by NMFS in FY 2012 (§ 648.87(b)(1)(v)). The required DSM coverage level for FY 2012 will be zero percent, because NMFS will not be funding DSM. However, should that change, then vessels would once again be subject to DSM. This exemption would reduce the burden of any DSM coverage level above zero.
FW 45 removed the DSM requirements for common pool vessels with handgear (Categories HA and HB) or Small Vessel (Category C) permits. Consistent with that flexibility, NMFS exempted sector vessels with handgear permits (Category HA) from DSM requirements due to the comparatively small catch of these vessels and disproportionately high DSM costs they would incur.
In general, sectors must comply with any DSM program specified by NMFS in FY 2012 (§ 648.87(b)(1)(v)). The required DSM coverage level for FY 2012 will be zero percent because NMFS will not be funding DSM. However, should that change, then sector handgear vessels would once again be subject to DSM. This exemption would reduce the burden of any DSM coverage level above zero for sector handgear vessels.
Several sectors requested exemptions for FY 2011 from DSM requirements for trips targeting monkfish, skate and/or dogfish. NMFS highlighted a number of operational concerns about exempting these trips in the proposed rule for FY 2011. In the final rule for FY 2011, NMFS approved an exemption from DSM for sector trips declared into the SFMA when fishing on a concurrent monkfish/NE multispecies DAS fishing with 10-inch (25.4-cm) or greater mesh, provided that the vessel fishes the entirety of its trip in the SFMA. This exemption was granted because of the small catch of these vessels and disproportionately high DSM costs they would incur.
Sectors must comply with any DSM program specified by NMFS in FY 2012 (§ 648.87(b)(1)(v)). The required DSM coverage level for FY 2012 will be zero percent because NMFS will not be funding DSM. However, should that change, then sector vessels would once again be subject to DSM. This exemption would reduce the burden of any DSM coverage level above zero for a sector vessel fishing with 10-inch (25.4-cm) or greater mesh when fishing the entirety of its trip in the SFMA.
The Eastern U.S./Canada Haddock SAP was implemented by FW 40A in 2004 to provide an opportunity to target haddock while fishing on a Category B DAS in, and near, CA II (69 FR 67780, November 19, 2004). The SAP required vessels to use gear that reduced the catch of cod and other stocks of concern. The SAP had a season of May 1 through December 31 to reduce effort during periods of groundfish spawning. In 2006, FW 42 extended this SAP and shortened the season to August 1 through December 31 to reduce cod catch. Subsequent actions approved additional gear types for use in this SAP.
For sector vessels, the only benefit of this SAP is that it provides access to the northern tip of CA II. Amendment 16 exempts sectors from the gear requirements of this SAP because sector catch is constrained by ACEs, but sectors are still required to comply with
Amendment 16 prohibits sectors from being granted exemptions from closed areas. NMFS requests comment on whether it is appropriate to exempt sectors from a SAP season, given that the portion of the SAP in the closed area is already open part of the year, or if the current prohibition on allowing exemptions from closed areas applies to SAPs.
The CA II Yellowtail Flounder/Haddock SAP was implemented by Amendment 13 in 2004 to provide an opportunity to target yellowtail flounder in CA II on a Category B DAS. The SAP required vessels to use either a flounder net or other gears approved for use in the Eastern U.S./Canada Area. The SAP season ran from June 1 through December 31. In 2005, FW 40 B extended this SAP and shortened the season to July 1 through December 31 to reduce interference with spawning yellowtail flounder (70 FR 31323, June 1, 2005).
Amendment 16 further revised this SAP by opening the SAP to target haddock from August 1 through January 31, when the SAP is not open to allow targeting of GB yellowtail flounder. Sectors are required to comply with the SAP reporting requirements and the restricted season of August 1 through January 31 (§ 648.85(b)(3)(iii)). When open only to target haddock, the flounder net is not authorized and only approved trawl gears or hook gear may be used. The gear requirements were implemented to avoid catching yellowtail flounder when the SAP was open only to the targeting of haddock.
Unlike the Eastern U.S./Canada Haddock SAP, the CA II Yellowtail Flounder/Haddock SAP provides access to a large area in CA II. Sectors are required to use the same approved gears as the common pool to reduce the advantage sector vessels have over common pool vessels. Sectors argue that their catch is restricted by ACE and their access to the SAP area in CA II should not be restricted.
The seasonal restriction on this SAP was put in place to allow vessels to target denser populations of yellowtail flounder and haddock while avoiding cod in the summer and spawning groundfish in the spring. Impacts to the physical environment and EFH would be negligible because any increase in effort would be minor and the portion of CA II included in this SAP is outside any HAPC. NMFS has some concern that this exemption could have negative effects on allocated stocks by increasing effort in a time and place where those stocks, particularly haddock, aggregate to spawn.
Amendment 16 prohibits sectors from being granted exemptions from closed areas. NMFS requests comment on whether it is appropriate to consider exemptions from a SAP season, given that the portion of the SAP in the closed area is already open part of the year, or if the current prohibition on allowing exemptions from closed areas applies to SAPs.
FW 40A established the CA I Hook Gear Haddock SAP. NE multispecies vessels fishing on a trip within this SAP are prohibited from deploying fishing gear outside of the SAP on the same trip when they are declared into the SAP (§ 648.85(b)(7)(ii)(G)). This restriction was established to avoid potential quota monitoring and enforcement complications that could arise when a vessel fishes both inside and outside the SAP on the same trip. This exemption request would allow sector vessels to fish both inside and outside the CA I Hook Gear Haddock SAP on the same trip. To identify catch from inside and outside the SAP on the same trip, sector vessels would be required to send NMFS a VMS catch report that specifically identifies GB haddock (and any other shared allocation) catch from inside the SAP prior to the end of the trip or within 24 hr of landing. Sectors are requesting this exemption to increase their operational flexibility and efficiency. NMFS has no reason to believe that this particular catch report would be any less accurate than the existing sector catch reports.
Amendment 16 allows each sector to carry over up to 10 percent of its original ACE allocation of each stock from one FY to the next, with the exception of GB yellowtail flounder (§ 648.87(b)(1)(i)(C)). Allowing a sector to carry over a portion of its allocation reduces concern that a sector may leave ACE uncaught out of concern it may accidentally exceed its ACE. An exemption was requested to allow sectors to carry over up to 50 percent of unused ACE into the following FY. Allowing sectors to carry over ACE would provide for greater flexibility in when and how they fish during a given FY.
NMFS has conducted a preliminary analysis of ACE carryover limits and the potential for overfishing in the subsequent year. Based on the preliminary analysis, there may be a possibility to allow sectors to carry over 11 percent to 30 percent of each stock's ACE (except GB yellowtail flounder and GOM cod) from one FY to the next, but only to the extent that there is sufficient information to conclude that such carryover does not result in overfishing, impede rebuilding objectives or threaten the health of the stock. Moreover, any such carryover must be consistent with Magnuson-Stevens Act requirements and the setting of ABCs and ACLs. This means that additional carryover must be factored into, and accounted for, in the setting of over-fishing limits (OFL), allowable biological catches (ABC) and ACLs for any given fishing year. GB yellowtail flounder is excluded by Amendment 16 and its implementing regulations because it is a transboundary stock managed under the U.S./Canada Resource Sharing Understanding, and therefore has quotas set by an informal agreement between the Northeast Region of NMFS and the Maritimes Region of the Department of Fisheries and Ocean of Canada. In addition, NMFS proposes to exclude GOM cod from any increase in the carry-over provision due to the results of a new stock assessment (SAW 53, 2012; copies available from NMFS, see ADDRESSES), which determined that GOM cod is overfished, overfishing is occurring, and is in poor condition; thus, raising concern about the long-term health of this stock.
The preliminary ACE carryover analysis considered seven groundfish stocks, representing a broad range of life spans and growth rates. A deterministic model was used to evaluate the effect of different percentages of ACE carryover on fishing mortality in the following year. The primary constraint on the model was that the percentage of ACE carryover could not allow overfishing in the following year. Despite a wide range of differences in biology among the
NMFS provided the analysis to the Council with a request that its Scientific and Statistical Committee (SSC) review it. In a letter dated January 20, 2012, the Council raised a number of questions about the preliminary analysis and the legality of such carryovers in light of Magnuson-Stevens Act requirements. These questions included:
1. Is it consistent with the Magnuson-Stevens Act to allow carryover that results in allocating an amount of fish greater than the ABC?
2. Is it consistent with the National Standards Guidelines to allow a carryover amount that reduces the amount of uncertainty buffer between the overfishing level and the ABC to zero without explicit concurrence of the SSC?
3. How does the variable recruitment of rebuilding stocks affect the analysis' assumptions about allowable ACE carryover?
4. If carryover allows catches to exceed the ABC for a rebuilding program, how is the rebuilding program affected?
5. If a stock ABC is declining, carryover may result in allocating an amount of fish greater than the over-fishing limit. Is this consistent with the Magnuson-Stevens Act?
6. Does a declining ABC affect the amount of permissible ACE carryover? and,
7. Do fluctuations in ABC need to be considered in setting permissible ACE carryover levels?
NMFS will consider any input from the SSC, if received in a timely manner, and the questions raised by the Council, to help determining whether increased carryover is justified for FY 2012 and, if so, at what level it should be set so that carryover does not result in overfishing, impede rebuilding objectives, or threaten the health of the stock, and otherwise satisfy the legal requirements for setting ABCs and ACLs. NMFS invites comments on the requests for additional carryover, including the preliminary analysis described above and the issues raised by the Council.
Amendment 16 implemented the ACE buffer provision to ensure that each sector would have 20 percent of its ACE available to account for any potential overage from the previous year. At the beginning of each FY, NMFS withholds 20 percent of a sector's ACE for each stock for up to 61 days (i.e., through June 30), or longer (§ 648.87(b)(1)(iii)(C)). This hold gives NMFS time to finalize sector catch and ACE trades that take place after the end of the FY, and to apply any overage penalties to a sector that exceeded its ACE. Sectors are requesting to be exempted from this 20-percent ACE buffer restriction when a sector manager reports that the sector has not exceeded any of its ACE. Sectors seek to increase operational flexibility and efficiency to bring additional revenue into the sector.
NMFS has some concern with this request because it has no ability to verify whether a sector manager's report is accurate until the annual reconciliation process, as discussed above, is complete. Therefore, sectors could potentially exceed their ACE in a subsequent FY after an overage before the second year's ACE is reduced by the first year's overage. For example, if a sector was allocated 100 mt of a stock in year 1, but caught 120 mt, the sector would be required to pay back 20 mt in year two. However, if the sector fished its complete allocation for year 2 before NMFS discovered the overage from year 1, the sector would then have overfished the reduced year 2 allocation.
Minimum mesh sizes were initially adopted through interim rules in 2001 and 2002 (67 FR 21140, April 29, 2002; 67 FR 50292, August 1, 2002), and made permanent through Amendment 13. FW 42 further modified the mesh regulations in the SNE and MA RMAs to reduce discards of yellowtail flounder. The regulations at § 648.80 specify the minimum mesh size that may be used in fishing nets on vessels fishing in the GOM, GB, SNE, and MA RMAs. Minimum mesh size restrictions have been used with other management measures to reduce overall mortality on groundfish stocks, as well as to reduce discarding, and improve survival, of sub-legal groundfish. These requirements were intended to protect spawning fish and increase the size of targeted fish.
This exemption would allow sector vessels to use 6-inch (15.2-cm) mesh codends on trawl nets to target redfish. The exemption is intended to increase the catch rate of redfish. The requesting sectors argue that this exemption could increase the operational flexibility of sector vessels and could increase profit margins of sector fishermen.
The sectors making the request have proposed that sector vessels participating in the directed redfish fishery be required to declare their intentions to the Sector Manager and NMFS at least 48 hr prior to departure, and that at-sea monitors be present on all trips using this exemption to monitor catch and bycatch. In addition, daily catch reports will be submitted to the Sector Manager to ensure that all catch is harvested within the sector's ACE. The exemption is intended to retain a greater proportion of redfish in the trawl codend.
This exemption is similar to exemptions requested and denied in previous years. This exemption could result in greater retention of sub-legal groundfish, as well as non-allocated species and bycatch. Habitat could also be negatively impacted due to the anticipated increased use of trawl gear. Should an exemption from minimum mesh size restrictions increase sub-legal groundfish bycatch by sector vessels, juvenile escapement, stock age structure, and overall mortality reduction objectives could be undermined. An exemption could raise additional equity concerns if sub-legal bycatch triggered management actions affecting the entire fishery, including non-sector vessels. Furthermore, an exemption from minimum mesh size restrictions could be difficult to enforce at-sea, because it would require enforcement personnel to differentiate the appropriate mesh size applicable to exempt vessels from that applicable to non-exempt vessels.
NMFS is currently funding a study through the Northeast Cooperative Research Partners Program to investigate strategies and methods to sustainably harvest the redfish resource in the GOM through a network approach, including fishing enterprises, gear manufacturers, researchers, social and economic experts, and managers. This approach will include investigating success of various mesh sizes within the fishery. Given that the use of this smaller mesh
Commercial haddock catch must measure a minimum of 18 inches (45.7 cm) to be retained by a vessel (§ 648.83(a)(1)). This restriction includes whole fish or any part of a fish while possessed on board a vessel, with the exception of a small amount of fish (up to 25 lb (11.3 kg)) that each person on board may retain for at-home consumption (§ 648.83(a)(2)). The 18-inch (45.7-cm) minimum size for haddock was first implemented by an interim action in 2009 (74 FR 17030, April 13, 2009). This was a reduction from the previous minimum size of 19 inches (48.3 cm), designed to reduce discards and increase yield. The 18-inch (45.7-cm) minimum size was made permanent by Amendment 16.
Sectors requested an exemption from the minimum size regulation so they could land headed and gutted haddock that are less than 18 inches (45.7-cm) as a value-added product. This exemption would simply allow legal-sized fish that were previously landed whole to be landed headed, or headed and gutted. There would be no change to the actual size composition of the catch. Regulations similar to this exist in other fisheries, such as monkfish. These fisheries use a conversion ratio to account for size and/or weight differences. If approved, NMFS would need to develop a ratio to account for the size/weight differences for haddock landed headed and/or headed and gutted. Allowing this exemption could present significant enforcement issues by allowing different legal minimum fish sizes at sea.
Current regulations prohibit one vessel from hauling another vessel's hook gear (§§ 648.14(k)(6)(ii)(B)). No provisions exist in the regulations allowing for multiple vessels to haul the same gear. The regulations facilitate the enforcement of existing hook regulations created as mortality controls, because a single vessel is associated with each set of gear. Sectors have requested an exemption from this prohibition to allow fishermen from within the same sector to haul each other's hook gear. All vessels participating in “community” fixed gear would be jointly liable for any violations associated with that gear. This joint liability would assist in the enforcement of regulations. The increased flexibility afforded by this exemption could increase efficiency.
NE multispecies vessels are required to declare that they will be fishing in either the Eastern US/CA Haddock SAP or the CA II Yellowtail Flounder/Haddock SAP prior to leaving the dock (§ 648.85(b)(8)(v)(D) and § 648.85(b)(3)(v)). Framework 40A implemented this measure so that vessels fishing exclusively in those areas could be credited DAS for their transit time to and from these SAPs. Sectors are requesting an exemption from having to declare their intent to fish in those areas prior to departing the dock because they are no longer limited by NE multispecies DAS and their catch is limited to their ACE. Sectors seek to increase their efficiency with this exemption.
Amendment 16 contains several “universal” exemptions applicable to all sectors and authorized sectors to request additional exemptions from NE multispecies regulations through their sector operations plans. However, Amendment 16 also prohibits sectors from requesting exemptions from year-round closed areas, permitting restrictions, gear restrictions designed to minimize habitat impacts, and reporting requirements (excluding DAS reporting requirements or DSM requirements). Exemptions were requested by several sectors that are specifically prohibited (e.g., access to permanent closed areas) or that fall outside of the NE multispecies regulations (e.g., Eastern U.S./Canada in-season actions).
In a letter dated September 1, 2010, NMFS notified the Council that NMFS interprets the reporting requirement exemption prohibition broadly to apply to all monitoring requirements, including ASM, DSM, ACE monitoring, and the counting of discards against sector ACE. In this letter (copies are available from NMFS, see
We propose denying, and do not analyze in the EA, exemptions from the following 13 requirements because they are prohibited: (26) Year-round access to the Cashes Ledge Closure Area; (27) year-round access to CA I; (28) year-round access to CA II; (29) year-round access to the Western GOM Closure Area; (30) from extrapolation of discarded fish pieces across strata; (31) authorization to use video monitoring in place of ASM; (32) from hail requirements; (33) year-round access to the Eastern U.S./Canada Area; (34) from ASM for sector vessels; (35) from ASM for trips targeting dogfish; (36) from ASM for hook-only and Handgear A vessels; (37) from ASM for extra-large mesh gillnet vessels; and (38) from the ASM standard for random trip selection.
We propose denying exemptions from the following 8 requirements because they were previously rejected and sectors provided no new information in support: (39) Minimum fish sizes, to allow 100-percent retention; (40) minimum fish sizes, to retain 12-inch (30.5-cm) yellowtail flounder; (41) that VMS messages be sent directly to NMFS; (42) weekly catch report requirements; (43) no pair trawling; (44) minimum hook size; (45) 6.5-inch (16.5-cm) minimum mesh size for trawls to allow 5-inch (12.7-cm) mesh when targeting redfish; and (46) submitting a roster by the deadline. Exemptions 39 through 46 are not analyzed in the EA because no new information was available to change the analyses previously published in past EAs. The details of these exemption requests, analysis of these exemptions, and the reasons they were previously denied are contained in the final rules approving sectors for FYs 2010 and 2011, and their accompanying EAs. The requesting sectors have provided no new information, justification, rationale, or mitigation to address these concerns. Accordingly, we proposed to deny these exemptions in this rule.
We propose denying exemptions from the following 3 requirements because they may jeopardize rebuilding of the GOM cod stock, which a new stock assessment has determined is overfished and experiencing overfishing: (47) April
NMFS denied requests for additional exemptions from GOM Rolling Closure Areas in FYs 2010 and 2011 because of concerns that directly targeting spawning aggregations can adversely impact the reproductive potential of a stock, as opposed to post-spawning mortality. In addition, those requests were disapproved because the existing GOM Rolling Closure Areas provide some protection to harbor porpoise and other marine mammals.
In response to requests for additional exemptions from GOM Rolling Closure Areas (including new exemption requests that would exclude gillnet gear) and discussions about increasing access to these areas at the Council's Lessons Learned Sector Workshop, the Regional Administrator considered proposing partial exemption from some of the closures as a short-term solution while the Council considered the long-term future of these closures as part of the pending omnibus habitat amendment. Options considered for possible exemptions would have required trawl vessels to use selective trawl gears, excluded gillnet gear, and prohibited hook gear from using squid or mackerel as bait. However, given the new status of the GOM cod stock, no additional exemptions from the GOM RCAs are proposed in this rule.
The regulations currently provide that each sector must submit a final roster to NMFS by December 1, prior to the FY in which the sector intends to begin operations, unless otherwise instructed by NMFS. The deadline for FY 2012 was previously announced as December 1, 2011, or April 30, 2012, for permits that changed ownership after December 1. NMFS is extending the FY 2012 sector roster deadline for all permits through April 30, 2012. This opportunity is being provided to address concerns raised at the January 31–February 2, 2012, Council meeting regarding the recent GOM cod assessment and the potential disproportional impacts on the inshore GOM fleet due to the common pool trimester quotas that go into effect on May 1, 2012. The GOM cod stock assessment was not available before the December 1 deadline and indicates the need for a significant reduction in the ACL for this stock. Because permit holders were not aware of this significant reduction before the deadline, NMFS has determined that extending the deadline is appropriate to allow these vessels to reconsider whether to join a sector in light of the new assessment. Please note, however, that it is at the sector's discretion as to whether it will allow new members to join their sector for FY 2012.
The Administrative Procedure Act (5 U.S.C. 553) requires advance notice of rulemaking and opportunity for public comment. NMFS is providing a 15-day comment period for this rule. A longer comment period would be impracticable and contrary to the public interest because a final rule must be published prior to the start of FY 2012 on May 1. Vessels enrolled in a sector may not fish in FY 2012 unless their sector operations plan is approved. Therefore, if the final rule is not published prior to May 1, the permits enrolled in sectors must either stop fishing until their operations plan is approved, or elect to fish in the common pool for the entirety of FY 2012. Both of these options would have negative impacts for the permits enrolled in the sectors.
In order to comply with NEPA, one EA was prepared encompassing all 19 operations plans. The sector EA is tiered from the Environmental Impact Statement (EIS) prepared for Amendment 16. The EA examines the biological, economic, and social impacts unique to each sector's proposed operations, including requested exemptions, and provides a cumulative effects analysis (CEA) that addresses the combined impact of the direct and indirect effects of approving all proposed sector operations plans. The summary findings of the EA conclude that each sector would produce similar effects that have non-significant impacts. Visit
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the NE Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This action is exempt from review under Executive Order (E.O.) 12866.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601–612, requires agencies to assess the economic impacts of their proposed regulations on small entities. The objective of the RFA is to consider the impacts of a rulemaking on small entities, and the capacity of those affected by regulations to bear the direct and indirect costs of regulation. Size standards have been established for all for-profit economic activities or industries in the North American Industry Classification System. The SBA defines a small business in the commercial fishing and recreational fishing sector, as a firm with receipts (gross revenues) of up to $4 million.
An Initial Regulatory Flexibility Analysis (IRFA) has been prepared, as required by section 603 of the RFA. The Final Regulatory Flexibility Analysis (FRFA) will be prepared after the comment period for this proposed rule, and will be published with the final rule. The IRFA describes the economic impact that this proposed rule, if adopted, would have on small entities. The IRFA consists of this section, the
This action will likely affect 843 entities, which represents the number of permits enrolled in sectors that have requested additional exemptions. Each of these permits would be considered a small entity, based on the definition as stated above. The economic impact resulting from this action on these small entities is positive, since the action, if implemented, would provide additional operational flexibility to vessels participating in NE multispecies sectors for FY 2012. In addition, this action would further mitigate negative impacts from the implementation of Amendment 16, FW 44, and FW 45, which have placed additional effort restrictions on the groundfish fleet.
The flexibility afforded sectors includes exemptions from certain specified regulations as well as the ability to request additional exemptions. Sector members no longer have groundfish catch limited by DAS allocations and are instead limited by their available ACE. In this manner, the economic incentive changes from maximizing the value of throughput of all species on a DAS to maximizing the value of the sector ACE, which places a premium on timing landings to market conditions, as well as changes in the selectivity and composition of species
Over the past decade, there has been a significant amount of consolidation in the NE groundfish fishery in response to management measures to end overfishing of, and to rebuild, groundfish stocks. The number of active vessels steadily declined during the period 2007–2010. The number of active groundfish vessels making any fishing trips declined by 16.8 percent between 2007 (1,082 vessels) and 2010 (900 vessels). A 7.5-percent decline (i.e., 73 vessels) occurred between 2009 and 2010. Similarly, from 2007 to 2010 there was a 31.6-percent decline in the number vessels making at least one groundfish trip (658 to 450), with a 20.5% reduction (116 vessels) between 2009 and 2010. It is not possible to reliably identify the cause for the reduction in the number of active vessels that has been occurring for a number of years, including before 2007.
Amendment 13 implemented DAS leasing and transfer programs, allowing vessels to fish the DAS of multiple other vessels. Amendment 16 implemented a number of measures that facilitated the consolidation of fishing effort to fewer active fishing vessels as a means to reduce the operational expenses for owners of multiple permits. For example, that action allows owners of permits held in CPH and not associated with an actual fishing vessel to participate in sectors (i.e., contribute the CPH's landing history to calculate a sector's yearly allocation of ACE) and lease DAS. Further, it is not possible to identify the extent to which inactive vessels in sectors may benefit if other sector vessels harvest their allocation.
In 2010, 447 vessels (33 percent) were inactive (no landings). Of these inactive vessels, 296 were sector vessels and 151 were common pool vessels. The number of inactive vessels in 2010 can be compared to the number of inactive vessels in other years: 331 vessels (32 percent) in 2007, 398 vessels (28 percent) in 2008, and 408 vessels (30 percent) in 2009. Some vessel inactivity may be due to participation in DAS leasing or transfer programs and/or internal sector management decisions. Data are not currently available to evaluate how inactive vessels in sectors may have benefited from agreeing to have other vessels catch the sector's allocation.
The recent implementation of ACLs and accountability measures (AM), and the expanded use of sectors under Amendment 16, has affected fishing patterns in ways that cannot yet be quantified and analyzed. Sector measures were intended to provide a mechanism for vessels to pool harvesting resources and consolidate operations in fewer vessels, if desired, and to provide a mechanism for capacity reduction through consolidation. Reasons why fewer vessels fished in FY 2010, in comparison to FY 2009, may be related to owners with multiple vessels fishing fewer vessels. It is also likely that some vessels that have not landed groundfish have received revenue from leasing their groundfish allocation or have been fishing in other fisheries. Thus, fewer vessels are actively fishing for, and landing, regulated species and ocean pout, with 10 percent of the fishing vessels earning more than half of the revenues from such stocks since 2005, leading to a seemingly continuing trend of consolidation in the fishery. However, this trend began before the implementation and expansion of the sector program, and based on limited data available to date, the trend is not significantly out of proportion to FYs prior to the expansion of sector management by Amendment 16.
The objective of the proposed action is to authorize the operations of 19 sectors in FY 2012, and to allow the benefits of sector operations to accrue to 843 permits enrolled in sectors and the New England communities where they dock and land. The legal basis for the proposed action is the NE Multispecies FMP and promulgating regulations at § 648.87.
The SBA size standard for commercial fishing (North American Industry Classification System code 114111) is $4 million in annual sales. Available data indicate that, based on 2005–2007 average conditions, median gross annual sales by commercial fishing vessels were just over $200,000, and no single fishing entity earned more than $2 million annually. Although NMFS acknowledges there may be entities that, based on rules of affiliation, would qualify as large business entities, due to lack of reliable ownership affiliation data we cannot apply the business size standard based on affiliation at this time. For this action, since available data are not adequate to identify affiliated vessels, each operating unit is considered a small entity for purposes of the RFA, and, therefore, there is no differential impact between small and large entities. The maximum number of entities that could be affected by the proposed exemptions is 843 permits—the number of vessels enrolled in the 19 sectors that have submitted an operations plan for FY 2012. Since individuals may withdraw from a sector at any time prior to the beginning of FY 2012, the number of permits participating in sectors on May 1, 2012, and the resulting sector ACE allocations, are likely to change. Additionally, new permit holders who acquire their permits through an ownership change that occurred after December 1, 2011, may enroll their permit in a sector or change the permit's sector affiliation through April 30, 2012.
This proposed rule contains no collection-of-information requirement subject to the Paperwork Reduction Act. The proposed action reduces reporting requirements compared to the no-action alternative. Exemptions implemented through this action would be documented in a LOA issued to each vessel participating in an approved sector. The exemptions from the 20-day spawning block and the 120-day gillnet block would reduce the reporting burden for sector vessels, because exemptions from these requirements eliminate the need to report the blocks to the NMFS Interactive Voice Response system.
Sector vessels receiving an exemption from the gillnet limit (up to 150 nets) would also be exempt from current tagging requirements, and would instead be required to tag gillnets with one tag per net. Compliance with the tagging requirement would not necessarily require sector vessels to purchase additional net tags, as each vessel is already issued up to 150 tags. However, sector vessels that have not previously purchased the maximum number of gillnet tags may find it necessary to purchase additional tags to comply with this requirement at a cost of $1.20 per tag.
The exemption to allow a vessel to haul another vessel's gillnet gear would require each vessel to tag all gear it is authorized to haul. Because of the existing 150-tag limit, no additional tags could be purchased.
The exemption from the limit on the number of hooks does not involve reporting requirements, but may result in increased costs for hooks and rigging (groundline, gangions, anchors) if a vessel chooses to increase the amount of gear fished. Circle hooks of the legal minimum size (12/0) cost about $0.19 each without rigging.
The GOM Sink Gillnet exemption does not involve additional reporting requirements. However, to fully utilize this exemption, sector vessels would need to purchase 6-inch (15.2-cm) mesh gillnet nets. At the time this IRFA was prepared, no cost information was available for a 6-inch (15.2-cm) mesh gillnet panel. However, the cost of a 6.5-inch (16.5-cm) mesh 300-ft (91.4-m) gillnet panel, complete with floats and break-away links, is estimated at $310. The quantity of 6-inch (15.2-cm) mesh gillnets purchased by a vessel to participate in this program would depend on the vessel's gillnet designation (a Day gillnet vessel would have a 150-net limit) and the perceived economic benefits of utilizing the exemption, which may be based on market conditions.
Exempting sectors from the requirement to submit a daily catch report for all vessels participating in the CA I Hook Gear Haddock SAP will not change the reporting burden of individual participating vessels, as the vessels would merely change the recipient of their current daily report.
Other exemptions proposed in this action involve no additional reporting requirements. Sector reporting and recordkeeping regulations do not exempt participants from state and Federal reporting and recordkeeping, but are mandated above and beyond current state and Federal requirements. A full list of compliance, recording, and recordkeeping requirements can be found in the final rules implementing Amendment 16, each approved FY 2011 sector operations plan, and in the draft FY 2012 sector operations plans.
The proposed action is authorized by the regulations implementing the NE Multispecies FMP. It does not duplicate, overlap, or conflict with other Federal rules.
The proposed action would create a positive economic impact for the participating sector vessels because it would mitigate the impacts from restrictive management measures implemented under NE Multispecies FMP. Little quantitative data on the precise economic impacts to individual vessels is available. The
The EIS for Amendment 16 compares economic impacts of sector vessels with common pool vessels and analyzes costs and benefits of the universal exemptions. The final rule for the approval of the FY 2010 sector operations plans and contracts (75 FR 18113, April 9, 2010) and its accompanying EAs discussed the economic impacts of the exemptions requested by sectors that year. The final rule for the supplemental sector rule (75 FR 80720, December 23, 2010) and its accompanying supplemental EA discussed the impacts of additional exemptions requested by sectors. The final rule for the approval of the FY 2011 sector operations plans and contracts (76 FR 23076, April 25, 2011) and its accompanying EA discussed the economic impacts of the exemptions requested by sectors that year.
The EA prepared for this rule evaluates the impacts of each exemption individually relative to the no-action alternative (i.e., no sectors are approved), and the exemptions may be approved or disapproved individually or as a group. The impacts associated with the implementation of each of the exemptions proposed in this rule are analyzed as if each exemption would be implemented for all sectors; however, each exemption will only be implemented for the sector(s) which requested that exemption.
Increased “operational flexibility” generally has positive impacts on human communities as sectors and their associated exemptions grant fishermen some measure of increased operational flexibility. By removing the limitations on vessel effort (amount of gear used, number of days declared out of fishery, trip limits and area closures) sectors help create a more simplified regulatory environment. This simplified regulatory environment grants fishers greater control over how, when, and where they fish, without working under increasingly complex fishing regulations with higher risk of inadvertently violating one of the many regulations. The increased control granted by the sectors and their associated exemptions may also allow fishermen to maximize the ex-vessel price of landings by timing them based on the market. Generally, increased operational flexibility can result in reduced costs and/or increased revenues. All exemptions contained in the proposed FY 2012 sector operations plans are expected to generate positive social and economic effects for sector members and ports. In general, profits can be increased by increasing revenues or decreasing costs. Similarly, profits decrease when revenues decline or costs rise. The following discussion concentrates on cost and revenues in order to focus on the mechanism by which profits are expected to change due to the exemptions granted by this action.
Existing regulations require that vessels using gillnet gear remove all gillnet gear from the water for 120 days per year. Under an output-control management system, this type of input control is unnecessary. Many affected vessel owners have purchased additional vessels in order to be able to fish continuously. The exemption from the 120-day block allows sector members to reduce costs by retiring the redundant vessel. Furthermore, this exemption may allow sector vessels to take advantage of other exemptions, such as the exemption from the GB Seasonal Closure in May and portions of the GOM Rolling Closure Areas.
Exemption from the 20-day spawning block would improve operational flexibility by allowing participants to match trip planning decisions to environmental and economic conditions. The increased operational flexibility may result in higher revenues (improved timing of delivery to market) or lower costs for participating vessels.
This exemption would increase operational flexibility by allowing participating sector members to deploy
This community fixed-gear exemption would allow sector vessels in the Day gillnet category to share gillnet gear. This exemption would reduce the total amount of gear that would have to be purchased and maintained by participating sector members, resulting in lower costs and possibly lower amount of gear fished.
This exemption would increase operational flexibility by allowing a sector vessel to haul its monkfish gillnets and groundfish gillnets on the same trip. This exemption may reduce costs for these sector participants.
This exemption would increase operational flexibility by allowing operators to adapt to environmental and economic conditions. This exemption may result in higher revenues or reduced costs.
This exemption would increase operational flexibility by allowing participating sector members to deploy fishing gear according to operational and market needs. The increased operational flexibility is likely to result in either higher revenues or lower costs for participating vessels. Because DAS are no required while fishing for groundfish, vessels participating in other fisheries (e.g., monkfish) which require the use of DAS are likely to be positively impacted by this exemption.
This exemption would allow sector members to use 6-inch (15.2-cm) mesh gillnets in the GOM RMA from January 1, 2013, through April 30, 2013. This exemption will allow participating sector vessels to retain more GOM haddock and increase revenues. To take advantage of this exemption, participating sector vessels would need to purchase 6-inch (15.2-cm) mesh gillnets; however, this gear change would be voluntary and the gear would be adopted only if the vessels anticipated positive returns from the switch. In FY 2010, 34.7 percent of the available GOM haddock ACE was not caught.
This exemption would allow vessels to use 6-inch mesh gillnets in the GOM RMA from May 1, 2012, through May 31, 2012. This exemption will allow participating sector vessels to retain more GOM haddock and increase revenues. To take advantage of this exemption, participating sector vessels will need to purchase 6-inch mesh gillnets; however, this gear change would be voluntary and this gear would be adopted only if anticipated higher profits. In FY 2010, 34.7% of the available GOM haddock ACE was not caught.
Sector vessels are required to retain legal-size unmarketable fish, which must be stored on the vessel while at sea. This requirement may create unsafe work conditions and reduce safety at sea. In addition, sector vessels must determine a method of disposal for landed unmarketable fish. An exemption from this regulation would allow sector vessels to discard unmarketable fish, increasing flexibility, improving safety conditions at sea, and reducing costs associated with disposing of the landed unmarketable fish.
Eliminating the daily catch reporting by sector managers would reduce the administrative burden on the sector managers. The reporting burden of individual participating vessels remains unchanged. In addition to reducing administrative burden, this exemption may result in slightly lower operating costs for sectors.
This exemption would allow the use of any groundfish trawl gear, rather than approved conservation gears, provided the gear conforms to regulatory requirements for using trawl gear to fish for groundfish in the GB RMA. This exemption would result in greater operational flexibility to participating sector vessels. This increased operational flexibility may translate into lower costs if vessels can reduce the amount of gear, effort or type of gear necessary to catch groundfish in the U.S./Canada Management Area.
Maintaining a VMS signal while at the dock, or tied to a mooring, requires constant power be delivered to the vessel or constant use of onboard generators. This exemption will reduce the operating costs for fishing operations and would result in some improved profitability.
FW 45 revised DSM requirements and stipulated that sectors must comply with any DSM program specified by NMFS in FY 2012. For FY 2012 there is no required DSM coverage because NMFS will not be funding DSM. This exemption would reduce the regulatory cost and burden of any DSM coverage level above zero. The vessels qualifying for these exemptions generally are the smallest operations, or have the smallest amount of groundfish catch, and so would otherwise be disproportionately burdened compared to larger operations.
The Eastern U.S./Canada Haddock SAP was implemented by FW 40A in 2004 to provide an opportunity to target haddock. In 2006, FW 42 shortened the season of this SAP to August 1 through December 31 to reduce cod catch. For sector vessels, the SAP provides access to the northern tip of CA II, which may increase haddock catch and revenue for fishermen.
The CA II Yellowtail Flounder/Haddock SAP was implemented by Amendment 13 in 2004 to provide an opportunity to target yellowtail flounder in CA II. In 2005, FW 40B shortened the season of this SAP to July 1 through December 31 to reduce interference with spawning yellowtail flounder. Amendment 16 further revised this SAP to allow participating vessels to target haddock from August 1 through January 31. This exemption would increase a sector's operational flexibility and efficiency by allowing the opportunity to fish year-round in the SAP area. It could allow for a greater catch of
FW 40A established the CA I Hook Gear Haddock SAP. Multispecies vessels fishing on a trip within this SAP are prohibited from deploying fishing gear outside of the SAP on the same trip when they are declared into the SAP. This exemption would increase operational flexibility by allowing sector vessels to fish both inside and outside the SAP on the same trip. This exemption would reduce costs by reducing the amount of travel time to haul gear in the SAP and in other areas.
Each sector is allowed to carry over up to 10 percent of its original ACE allocation of each stock from one fishing year to the next, with the exception of GB yellowtail flounder, to reduce the possibility that a sector may accidentally exceed its allocation while trying to utilize its entire ACE. Allowing sectors to carry over a larger portion of their ACE would provide for greater operational flexibility in when and how they fish during a given fishing year. This could increase revenues of sectors which frequently catch less than 90% of their ACE allocations.
At the beginning of each fishing year, NMFS withholds 20 percent of a sector's ACE for each stock for a period of up to 61 days, or longer. Exemption from this provision would increase operational flexibility by allowing more ACE to be available at the beginning of the fishing year. This effect is expected to be greatest for stocks which are seasonally available early in the fishing year.
This exemption would allow sector vessels to use 6-inch (15.2-cm) mesh codends on trawl nets to target redfish. The exemption could increase the operational flexibility of sector vessels and could increase revenues of sector fishermen if they are able to increase the catch rate of redfish.
This restriction includes whole fish or any part of a fish while possessed on board a vessel, with the exception of a small amount of fish (up to 25 lb (11.3 kg)) that each person on board may retain for at-home consumption. This exemption would increase operational flexibility by allowing vessels to land headed and gutted haddock which are less than 18 inches (45.7 cm). Vessels would be able to store more fish in the hold and may land more edible meat by processing and removing undesirable parts of the fish at sea. Vessel revenues increase if higher prices are received for processed fish. However, few vessels are currently equipped to take advantage of this exemption. Other vessels would need to make voluntary upgrades to their vessels in order to take advantage of this regulation.
This exemption would reduce the total amount of gear that would have to be purchased and maintained by participating sector members, resulting in lower costs and a possible reduction in total gear fished.
Multispecies vessels are currently required to declare that they will be fishing in the Eastern U.S./CA Haddock SAP or the CA II Yellowtail Flounder/Haddock SAP prior to leaving the dock. The requested exemption would reduce the administrative burden of declaring intent to fish and increase operational flexibility by allowing the vessel to make trip planning decisions while at-sea. This exemption could reduce costs by reducing the amount of travel time to fish in the SAP without first returning to port.
There were several exemptions requested by the sectors for FY 2012 that the regulations implemented by Amendment 16 prohibited NMFS from considering. NMFS also received requests for exemptions that NMFS previously disapproved in FY 2010 or FY 2011; however, no new data or information has become available that would convince NMFS to reconsider the previously disapproved exemptions further in FY 2012.
Regulations under the Magnuson-Stevens Act require publication of this notification to provide interested parties the opportunity to comment on proposed sector operations plans and TAC allocations.
16 U.S.C. 1801
Forest Service, USDA.
Notice of availability
In accordance with Section 3(b) of the Wild and Scenic Rivers Act, the USDA Forest Service, Washington Office, is transmitting the final boundary of the Sturgeon National Wild and Scenic River to Congress.
Information may be obtained by contacting Jim Ozenberger, Recreation Program Manager, Hiawatha National Forest, 900 US 2 St. Ignace, MI 49781 Telephone 906–643–7900 x 157.
The Sturgeon Wild and Scenic River boundary is available for review at the following offices: USDA Forest Service, Office of the Chief, 1400 Independence Avenue SW., Washington, DC 20024; USDA Forest Service, Eastern Region, Suite 800, 626 East Wisconsin Avenue, Milwaukee, WI, 53202 and; Hiawatha National Forest, 2727 North Lincoln Road, Escanaba, MI 49829. A detailed legal description is available upon request.
The Michigan Wild and Scenic Rivers Act (Pub. L. 102–249) of March 3, 1991, designated the Sturgeon River, Michigan, as a National Wild and Scenic River, to be administered by the Secretary of Agriculture. As specified by law, the boundary will not be effective until ninety days after Congress receives the transmittal.
Forest Service, USDA.
Request for applications.
The Department of Agriculture (USDA), Forest Service, State and Private Forestry, Cooperative Forestry staff, requests applications for the Community Forest and Open Space Conservation Program (Community Forest Program or CFP). This is a competitive grant program whereby local governments, qualified nonprofit organizations, and Indian tribes are eligible to apply for grants to establish community forests through fee simple acquisition of private forest land. The purpose of the program is to establish community forests by protecting forest land from conversion to non-forest uses and provide community benefits such as sustainable forest management, environmental benefits including clean air, water, and wildlife habitat; benefits from forest-based educational programs; benefits from serving as models of effective forest stewardship; and recreational benefits secured with public access.
Eligible lands for grants funded under this program are private forest that is at least five acres in size, suitable to sustain natural vegetation, and at least 75 percent forested. The lands must also be threatened by conversion to non-forest uses, must not be held in trust by the United States on behalf of any Indian tribe or allotment lands, and if acquired by an eligible entity, must provide defined community benefits under CFP and allow public access.
Application deadline is May 15, 2012 for submitting applications to the State Forester or equivalent official of the Indian tribe and June 14, 2012 for State Forester or equivalent official of the Indian tribe submitting the applications to the Forest Service.
All local governments' and qualified nonprofit organizations' applications must be submitted to the State Forester of the State where the property is located. All Indian tribal applications must be submitted to the equivalent official of the Indian tribe. The Forest Service encourages applicants to contact and work with their State Forester or equivalent official of the Indian tribe when developing their proposal. The State Forester's contact information may be found at
All applicants must also send an email to
For questions regarding the grant application or administrative regulations, contact Kathryn Conant, Program Manager, 202–401–4072,
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1–800–877–8339 twenty-four hours a day, every day of the year, including holidays.
Detailed information regarding what to include in the application, definitions of terms, eligibility, and necessary prerequisites for consideration can be found in the final program rule, published October 20, 2011 (76 FR 65121–65133), which is available at
a.
b.
c.
d.
Total CFP funding anticipated for awards made under this program is $1.35 million. Individual grant applications may not exceed $400,000. Awarding of grants under this program is contingent upon the availability of appropriated funds. If additional funds are appropriated for CFP in 2012, the Forest Service will award additional projects from this solicitation with the additional funds.
No legal liability on the part of the Government shall be incurred until appropriated funds are available and committed by the grant officer for this program to the applicant in writing. The initial grant period shall be for 2 years, and acquisition of lands should occur within that timeframe. The grant may be reasonably extended by the Forest Service when necessary to accommodate unforeseen circumstances in the land acquisition process. Written annual financial performance reports and semi-annual project performance reports shall be required and submitted to the appropriate grant officer.
Application submission. All local governments and qualified nonprofit organizations' applications must be submitted to the State Forester where the property is located by May 15, 2012. All Indian tribal applications must be submitted to the equivalent official of the Indian tribe by May 15, 2012. The State Forester's contact information may be found at
All applicants must also send an email to
All State Foresters and equivalent officials of the Indian tribes must forward applications to the Forest Service by June 14, 2012.
The following section outlines grant application requirements:
a. The application can be no more than eight pages long, plus no more than two maps (eight inches by eleven inches in size), the grant forms specified in (b), and the draft community forest plan specified in (d).
b. The following grant forms and supporting materials must be included in the application:
(1) An Application for Federal Assistance (Standard Form 424);
(2) Budget information (Standard Form SF 424c—Construction Programs); and
(3) Assurances of compliance with all applicable Federal laws, regulations, and policies (Standard Form 424d—Construction Programs).
c. Documentation verifying that the applicant is an eligible entity and that the land proposed acquisition is eligible lands (see § 230.2 of the final rule).
d. Applications must include the following, regarding the property proposed for acquisition:
(1) A description of the property, including acreage and county location;
(2) A description of current land uses, including improvements;
(3) A description of forest type and vegetative cover;
(4) A map of sufficient scale to show the location of the property in relation to roads and other improvements as well as parks, refuges, or other protected lands in the vicinity;
(5) A description of applicable zoning and other land use regulations affecting the property;
(6) A description of relationship of the property within and its contributions to a landscape conservation initiative; and
(7) A description of any threats of conversion to non-forest uses, including any encumbrances on the property that prevent conversion to nonforest uses.
e. Information regarding the proposed establishment of a community forest, including:
(1) A description of the benefiting community, including demographics, and the associated benefits provided by the proposed land acquisition;
(2) A description of community involvement to-date in the planning of the community forest acquisition and of community involvement anticipated long-term management;
(3) An identification of persons and organizations that support the project and their specific role in establishing and managing the community forest; and
(4) A draft community forest plan. The eligible entity is encouraged to work with the State Forester or equivalent official of the Indian tribe for technical assistance when developing or updating the Community Forest Plan. In addition, the eligible entity is encouraged to work with technical specialists, such as professional foresters, recreation specialists, wildlife biologists, or outdoor education specialists, when developing the Community Forest Plan.
f. Information regarding the proposed land acquisition, including:
(1) A proposed project budget (section § 230.6 of the final program rule);
(2) The status of due diligence, including a signed option or purchase and sale agreement, title search, minerals determination, and appraisal;
(3) Description and status of cost share (secure, pending, commitment letter, etc.). Section § 230.6 of the final rule;
(4) The status of negotiations with participating landowner(s) including purchase options, contracts, and other terms and conditions of sale;
(5) The proposed timeline for completing the acquisition and establishing the community forest; and
(6) Long term management costs and funding source(s).
g. Applications must comply with the Uniform Federal Assistance Regulations (7 CFR Part 3015).
h. Applications must include the forms required to process a Federal grant. Section § 230.7 refers to the grant forms that must be included in the application and the specific administrative requirements that apply to the type of Federal grant used for this program.
a. Using the criteria described below, to the extent practicable, the Forest Service will give priority to applications that maximize the delivery of community benefits, as defined in the final rule (see § 230.2 of the final rule).; and
b. The Forest Service will evaluate all applications received by the State Foresters or equivalent officials of the
(1) Type and extent of community benefits provided, including to underserved communities. Community benefits are defined in the final program rule as:
(i) Economic benefits such as timber and non-timber products;
(ii) Environmental benefits, including clean air and water, stormwater management, and wildlife habitat;
(iii) Benefits from forest-based experiential learning, including K–12 conservation education programs; vocational education programs in disciplines such as forestry and environmental biology; and environmental education through individual study or voluntary participation in programs offered by organizations such as 4–H, Boy or Girl Scouts, Master Gardeners, etc.;
(iv) Benefits from serving as replicable models of effective forest stewardship for private landowners; and
(v) Recreational benefits such as hiking, hunting and fishing secured through public access.
(2) Extent and nature of community engagement in the establishment and long-term management of the community forest;
(3) Amount of cost share leveraged;
(4) Extent to which the community forest contributes to a landscape conservation initiative;
(5) Extent of due diligence completed on the project, including cost share committed and status of appraisal;
(6) Likelihood that, unprotected, the property would be converted to non-forest uses; and
(7) Costs to the Federal Government.
a. Once an application is selected, funding will be obligated to the grant recipient through a grant.
b. Local and Indian Tribal Governments should refer to 2 CFR part 225, Cost Principles for State, Local, and Indian Tribal Governments (OMB Circular A–87) and 7 CFR part 3016 (Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments) for directions.
c. Nonprofit organizations should refer to 2 CFR part 215 Uniform Administrative Requirements for Grants and Other Agreements with Institutions of Higher Education, Hospitals and Other Nonprofit Organizations (OMB Circular A–110) and 7 CFR Part 3019 Uniform Administrative Requirements for Grants and Cooperative Agreements with Institutions of Higher Education, Hospitals, and other Nonprofit Organizations for directions.
d. Forest Service must approve any amendments to a proposal or request to reallocate funding within a grant proposal. If negotiations on a selected project fail, the applicant cannot substitute an alternative site.
e. The grant recipient must comply with the requirements in section § 230.8 in the final rule before funds will be released.
f. After the project has closed, as a requirement of the grant, grant recipients will be required to provide the Forest Service with a Geographic Information System (GIS) shapefile: a digital, vector-based storage format for storing geometric location and associated attribute information, of CFP project tracts and cost share tracts, if applicable.
g. Any funds not expended within the grant period must be de-obligated and revert to the Forest Service.
h. All media, press, signage, and other documents discussing the creation of the community forest must reference the partnership and financial assistance by the Forest Service through the CFP.
i. Additional conditions of the grants awarded under this program are found in section § 230.9 of the final rule.
The Department of Commerce 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).
Under current regulations at 50 CFR 635.6, fishing vessels permitted for Atlantic Highly Migratory Species (HMS) must display their official vessel numbers on their vessels. Flotation devices and high-flyers attached to certain fishing gears must also be marked with the vessel's number to identify the vessel to which the gear belongs. These requirements are necessary for identification, law enforcement, and monitoring purposes.
Specifically, all vessel owners that hold a valid HMS permit under 50 CFR 635.4, other than an HMS Angling permit, are required to display their vessel identification number. Numbers must be permanently affixed to, or painted on, the port and starboard sides of the deckhouse or hull and on an appropriate weather deck, so as to be clearly visible from an enforcement vessel or aircraft.
Furthermore, the owner or operator of a vessel for which a permit has been issued under § 635.4 and that uses handline, buoy gear, harpoon, longline, or gillnet, must display the vessel's name, registration number or Atlantic Tunas, HMS Angling, or HMS Charter/Headboat permit number on each float attached to a handline, buoy gear, or harpoon, and on the terminal floats and high-flyers (if applicable) on a longline or gillnet used by the vessel. The vessel's name or number must be at least 1 inch (2.5 cm) in height in block letters or Arabic numerals in a color that contrasts with the background color of the float or high-flyer.
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482–0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Department of Commerce 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).
This survey provides an essential component of the current economic indicators needed for assessing the evolving status of the economy and formulating economic policy. The Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) has designated this survey as a principal federal economic indicator. The shipments and inventory data are essential inputs to the gross domestic product (GDP), while the orders data are direct inputs to the leading economic indicator series. The GDP and the economic indicator series would be incomplete without these data. The survey also provides valuable and timely domestic manufacturing data for economic planning and analysis to business firms, trade associations, research and consulting agencies, and academia.
The data are used for analyzing short- and long-term trends, both in the manufacturing sector and as related to other sectors of the economy. The data on value of shipments, especially when adjusted for change in inventory, measure current levels of production. New orders figures serve as an indicator of future production commitments. Changes in the level of unfilled orders, because of excess or shortfall of new orders compared with shipments, are used to measure the excess (or deficiency) in the demand for manufactured products. Changes in the level of inventories and the relation of these to shipments are used to project future movements in manufacturing activity. These statistics are valuable for analysts of business cycle conditions including members of the Council of Economic Advisers (CEA), the Bureau of Economic Analysis (BEA), the Federal Reserve Board (FRB), the Department of the Treasury, business firms, trade associations, private research and consulting agencies, and the academic community.
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482–0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Brian Harris-Kojetin, OMB Desk Officer either by fax ((202) 395–7245) or email (
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Board of Harbor Commissioners of the City of Los Angeles, grantee of FTZ 202, requesting authority to reorganize and expand the zone under the alternative site framework (ASF) adopted by the Board (74 FR 1170, 1/12/2009 (correction 74 FR 3987, 1/22/2009); 75 FR 71069–71070, 11/22/2010). The ASF is an option for grantees for the establishment or reorganization of general-purpose zones and can permit significantly greater flexibility in the designation of new “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the Board's standard 2,000-acre activation limit for a general-purpose zone project. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on February 9, 2012.
FTZ 202 was approved on July 14, 1994 (Board Order 693, 59 FR 37464, 07/22/1994), and expanded or reorganized on August 26, 1996 (Board Order 842, 61 FR 46763, 09/5/1996), on July 9, 1999 (Board Order 1043, 64 FR 38887, 07/20/1999), on April 30, 2004 (Board Order 1331, 69 FR 26065–26066, 05/11/2004), on April 24, 2009 (Board Order 1616, 74 FR 21623–21624, 05/8/2009), on December 20, 2010 (Board Order 1732, 76 FR 86–87, 01/03/2011), and, on August 12, 2011 (Board Order 1779, 76 FR 53115, 08/25/2011).
The zone project currently consists of 20 sites located in Los Angeles, San Bernardino and Riverside Counties as follows:
The grantee's proposed service area under the ASF would be all of Orange County and portions of Los Angeles and San Bernardino Counties, California, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is within and adjacent to the Los Angeles-Long Beach U. S. Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize its existing zone project to include eight of the existing sites as “magnet” sites and eleven of the existing sites as “usage-driven sites”. The ASF allows for the possible exemption of one magnet site from the “sunset” time limits that generally apply to sites under the ASF, and the applicant proposes that Site 1 be so exempted. The applicant is also requesting approval of the following new “usage-driven” site:
In accordance with the Board's regulations, Christopher Kemp of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is April 16, 2012. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to April 30, 2012.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Iowa Foreign Trade Zone Corporation, grantee of FTZ 107, requesting authority to reorganize the zone under the alternative site framework (ASF) adopted by the Board (74 FR 1170, 1/12/09 (correction 74 FR 3987, 1/22/09); 75 FR 71069–71070, 11/22/10). The ASF is an option for grantees for the establishment or reorganization of general-purpose zones and can permit significantly greater flexibility in the designation of new “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the Board's standard 2,000-acre activation limit for a general-purpose zone project. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on February 9, 2012.
FTZ 107 was approved by the Board on September 4, 1984 (Board Order 273, 49 FR 35971, 9/13/1984). The current zone project includes the following site:
The grantee's proposed service area under the ASF would be Adair, Adams, Audubon, Boone, Calhoun, Carroll, Cass, Clarke, Dallas, Decatur, Greene, Guthrie, Hamilton, Hardin, Jasper, Lucas, Madison, Mahaska, Marion, Marshall, Monroe, Polk, Poweshiek, Ringgold, Story, Union, Warren, Wayne and Webster Counties, Iowa, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is within and adjacent to the Des Moines Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize its existing zone project to include the existing site as a “magnet” site. The ASF allows for the possible exemption of one magnet site from the “sunset” time limits that generally apply to sites under the ASF, and the applicant proposes that Site 1 be so exempted. No usage-driven sites are being requested at this time. Because the ASF only pertains to establishing or
In accordance with the Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is April 16, 2012. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to April 30, 2012.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Foreign Trade Zone of Central Texas, Inc., grantee of FTZ 183, requesting authority to reorganize the zone under the alternative site framework (ASF) adopted by the Board (74 FR 1170–1173, 01/12/09 (correction 74 FR 3987, 01/22/09); 75 FR 71069–71070, 11/22/10). The ASF is an option for grantees for the establishment or reorganization of general-purpose zones and can permit significantly greater flexibility in the designation of new “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the Board's standard 2,000-acre activation limit for a general-purpose zone project. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on February 9, 2012.
FTZ 183 was approved by the Board on December 23, 1991 (Board Order 550, 57 FR 42, 1/2/92), and expanded on March 16, 1998 (Board Order 964, 63 FR 13837, 3/23/98), on July 10, 1998 (Board Order 994, 63 FR 39071, 7/21/98), on April 7, 1999 (Board Order 1035, 64 FR 19978, 4/23/99), on March 15, 2001 (Board Order 1143, 66 FR 16650, 3/27/01), and on January 27, 2005 (Board Order 1366, 70 FR 6616–6617, 2/8/05).
The current zone project includes the following sites:
The grantee's proposed service area under the ASF would be Bastrop, Caldwell, Hays, Travis and Williamson Counties, Texas. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is within and adjacent to the Austin Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize its existing zone project to include all of the existing sites as “magnet” sites. No usage-driven sites are being requested at this time. Because the ASF only pertains to establishing or reorganizing a general-purpose zone, the application would have no impact on FTZ 183's authorized subzones.
In accordance with the Board's regulations, Camille Evans of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is April 16, 2012. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to April 30, 2012.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
The President's Export Council Subcommittee on Export Administration (PECSEA) will meet on March 1, 2012, 10:00 a.m., and March 2, 2012, 9:00 a.m., at Sheppard Mullin Richter and Hampton LLP, 333 South Hope Street, Los Angeles, California, 90071. The PECSEA provides advice on matters pertinent to those portions of the Export Administration Act, as amended, that deal with United States policies of encouraging trade with all countries with which the United States has diplomatic or trading relations and of controlling trade for national security and foreign policy reasons.
1. Export Control Reform Field Hearing.
1. Welcome and remarks by Chairman and Vice Chair.
2. Presentation of Papers or Comments by the Public.
3. Review of Field Hearing.
4. Discussion/Status of 2012 Workplan.
5. Subcommittee Breakout Sessions.
6. Port of LA Tour.
A limited number of seats will be available for the public sessions on both days. Reservations are not accepted. Early arrival (15–20 minutes) is requested for entry into the facility. To the extent time permits, members of the public may present oral statements to the PECSEA. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to PECSEA members, the PECSEA suggests that these materials or comments be forwarded before the meeting to Ms. Yvette Springer at
For more information, contact Yvette Springer on 202–482–2813.
The Transportation and Related Equipment Technical Advisory Committee will meet on March 1, 2012, 9:30 a.m., in the Herbert C. Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to transportation and related equipment or technology.
1. Welcome and Introductions.
2. Status Reports by Working Group Chairs.
3. Proposals from the Public.
4. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on October 21, 2011, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 (10)(d)), that the portion of the meeting dealing with pre-decisional changes to the Commerce Control List and U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information, call Yvette Springer at (202) 482·2813.
The Materials Processing Equipment Technical Advisory Committee (MPETAC) will meet on March 20, 2012, 9 a.m., Room 3884, in the Herbert C. Hoover Building, 14th Street between Pennsylvania and Constitution Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to materials processing equipment and related technology.
1. Opening remarks and introductions.
2. Presentation of papers and comments by the Public.
3. Discussions on results from last, and proposals for next Wassenaar Meeting.
4. Report on proposed and recently issued changes to the Export Administration Regulations.
5. Other business.
6. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members,
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on November 21, 2011, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § 10(d)), that the portion of the meeting dealing with matters the premature disclosure of which would be likely to frustrate significantly implementation of a proposed agency action as described in 5 U.S.C. 552b(c)(9)(B) shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information, call Yvette Springer at (202) 482–2813.
Import Administration, International Trade Administration, Department of Commerce.
Alexis Polovina or Javier Barrientos, 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) 482–3927 or (202) 482–2243 respectively.
On September 12, 2011, the Department of Commerce (“Department”) published in the
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“Act”), requires that the Department issue the final results of an administrative review within 120 days after the date on which the preliminary results are published. If it is not practicable to complete the review within that time period, section 751(a)(3)(A) of the Act allows the Department to extend the deadline for the final results to a maximum of 180 days after the date on which the preliminary results are published.
The submission of the post-
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Mary Kolberg and Jennifer Meek, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1785 and (202) 482–2778, respectively.
On December 7, 2011, the Department of Commerce (“the Department”) published its preliminary results of the antidumping duty administrative review of circular welded non-alloy steel pipe from the Republic of Korea, covering the period November 1, 2009, through October 31, 2010.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“Act”), requires that the Department issue the final results of an administrative review within 120 days after the date on which the preliminary results are published. If it is not practicable to complete the review within that time period, section 751(a)(3)(A) of the Act allows the Department to extend the deadline for the final results to a maximum of 180 days after the date on which the preliminary results are published.
The Department has determined that it requires additional time to complete this review. In the
We are issuing and publishing this notice in accordance with sections 751(a)(3)(A) and 777(i) of the Act.
International Trade Administration, U.S. Department of Commerce.
Notice of an open teleconference meeting.
The United States Travel and Tourism Advisory Board (Board) will hold a teleconference meeting to deliberate upon industry input and priorities to provide the Secretary of Commerce in his role as co-chair of the Task Force on Travel and Competitiveness (Task Force), established by Executive Order 13597
Thursday, March 1, 2012, 11 a.m.–12 p.m. EST
All guests are requested to register in advance. Requests for auxiliary aids or pre-registration should be submitted no later than February 22, 2012 to Jennifer Pilat, the United States Travel and Tourism Advisory Board, Room 4043, 1401 Constitution Avenue NW., Washington, DC 20230, telephone 202–482–4501,
Jennifer Pilat, the United States Travel and Tourism Advisory Board, Room 4043, 1401 Constitution Avenue NW., Washington, DC 20230, telephone: 202–482–4501, email: oacie@trade.gov.
On January 19, 2012, President Obama signed Executive Order 13597,
Such recommendations shall include, among other things, strategies to promote visits to the United States public lands, waters, shores, monuments, and other iconic American destinations, thereby expanding job creation in the United States. The Task Force shall also consider recommendations to promote and expand travel and tourism opportunities in rural communities. In addition, the Strategy shall identify any barriers to increasing the United States market share of worldwide travel, and any other related areas of concern. The Executive Order indicates that the Secretary of Commerce shall consider the Board's advice in his role with the Task Force. The Task Force shall deliver the Strategy to the President within 90 days of the date of the Executive Order.
The Executive Order is available at:
The United States Travel and Tourism Advisory Board was re-chartered on August 29, 2011, to advise the Secretary of Commerce on matters relating to the U.S. travel and tourism industry.
While members of the public are welcome to call in and listen to the meeting, there will not be sufficient time available for oral comments from members of the public. Any member of the public may submit pertinent written comments at any time before or after the meeting. Comments may be submitted to Jennifer Pilat at the contact information indicated above. To be considered during the meeting, comments must be received no later than 5 p.m. Eastern Time on February 23, 2012, to ensure transmission to the Board prior to the meeting. In addition to comments for the Board's consideration, the public may provide comment on the National Travel and Tourism Strategy as noted in a separate
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public hearings.
The New England Fishery Management Council (Council) will hold eight public hearings to solicit comment on Draft Amendment 5 to the Atlantic Herring Fishery Management Plan (FMP).
Written public comments must be received on or before 5 p.m. EST, Monday, April, 9, 2012. The hearings will be held between March 2 and March 29, 2012. For specific dates and times, see
The hearings will be held in Rockport, ME; Gloucester, MA; Portsmouth, NH; Fairhaven, MA; Portland, ME; Plymouth, MA; Warwick, RI and Cape May, NJ. For specific locations, see
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492.
These hearings are being scheduled in accordance with the Magnuson-Stevens Fishery Conservation and Management Act. During or after these hearings, additional opportunities for comments on the Amendment 5 Draft Environmental Impact Statement (DEIS) may be provided in accordance with the National Environmental Policy Act. The agenda for the following eight hearings is as follows: NEFMC staff will brief the public on the herring amendment prior to opening the hearing for public comments. The schedule is as follows:
1.
2.
3.
4.
5.
6.
7.
8.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council (Council) will convene its Law Enforcement Advisory Panel (LEAP) in conjunction with the Gulf States Marine Fisheries Commission's Law Enforcement Committee (LEC).
The meeting will convene at 1 p.m. on Tuesday, March 6, 2012 and conclude no later than 5 p.m.
The meeting will be held at the Marriott Courtyard Gulfport Beachfront Hotel, 1600 East Beach Blvd., Gulfport, MS 39501.
Dr. Richard Leard, Deputy Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348–1630.
The Gulf of Mexico Fishery Management Council (Council) will convene the Law Enforcement Advisory Panel along with the Gulf States Marine Fisheries Commission's Law Enforcement Committee to consider the status of recently completed amendments and other regulatory actions as well as the scheduled completion of ongoing actions. The two groups will also receive a presentation regarding issues related to the Gulf Council's Individual Fishing Quota Programs and discuss the National Center for Disaster Fraud/Gulf Coast. They will review the status of Joint Enforcement Agreements and enforcement efforts by the states under these agreements. The LEAP/LEC will also consider having a Summer Work Session to develop a 2013–16 Strategic Plan and a 2013–14 Operations Plan. Finally, the group will discuss Gulf seafood trace and trip ticket enforcement and receive reports of the state and federal members. Other activities related to the Gulf States Marine Fisheries Commission's Interjurisdictional Fisheries Program and Law Enforcement Summary will also be discussed.
The Law Enforcement Advisory Panel consists of principal law enforcement officers in each of the Gulf States, as well as the National Oceanic and Atmospheric Administration (NOAA) Law Enforcement, U.S. Fish and Wildlife Service (FWS), the U.S. Coast Guard, and the NOAA General Counsel for Law Enforcement. A copy of the agenda and related materials can be obtained by calling the Council office at (813) 348–1630.
Although other non-emergency issues not on the agendas may come before the Law Enforcement Advisory Panel for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during this meeting. Actions of the Law Enforcement Advisory Panel will be restricted to those issues specifically identified in the agendas and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council (see
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and
Notice and request for applications.
The ONMS is seeking applications for the following vacant seats on the Gray's Reef National Marine Sanctuary Advisory Council: Sport diving and charter/commercial fishing. Applicants are chosen based upon their particular expertise and experience in relation to the seat for which they are applying; community and professional affiliations; philosophy regarding the protection and management of marine resources; and possibly the length of residence in the area affected by the sanctuary. Applicants who are chosen as members should expect to serve 3-year terms, pursuant to the council's Charter.
Applications are due by March 30, 2012.
Application kits may be obtained from Becky Shortland, Council Coordinator (
Becky Shortland, Council Coordinator (
The sanctuary advisory council was established in August 1999 to provide advice and recommendations on management and protection of the sanctuary. The advisory council, through its members, also serves as liaison to the community regarding sanctuary issues and represents community interests, concerns, and management needs to the sanctuary and NOAA.
16 U.S.C. Sections 1431, et seq.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental take authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to the St. George Reef Lighthouse Preservation Society (SGRLPS) to take marine mammals, by Level B harassment only, incidental to conducting aircraft operations, and lighthouse renovation and light maintenance activities on the St. George Reef Light Station on Northwest Seal Rock (NWSR) in the northeast Pacific Ocean, from the period of February 10, 2012, through April 30, 2012, or during the period of November 1, 2012, through December 31, 2012.
This authorization is effective from February 10, 2012, through April 30, 2012, and during the period of November 1, 2012, through December 31, 2012.
A copy of the IHA and application are available by writing to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. An electronic copy of the application containing a list of the references used in this document may be obtained by writing to the above address, telephoning the contact listed here (see
Jeannine Cody, NMFS, Office of Protected Resources, NMFS, (301) 427–8401 or Monica DeAngelis, NMFS Southwest Regional Office, (562) 980–3232.
Section 101(a)(5)(D) of the Marine Mammal Protection of 1972, as amended (MMPA;16 U.S.C. 1361
Authorization for incidental taking of small numbers of marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The authorization must set forth the permissible methods of taking, other means of effecting the least practicable adverse impact on the species or stock and its habitat, and requirements pertaining to the mitigation, monitoring and reporting of such takings. NMFS has defined “negligible impact” in 50 CFR 216.103 as “ * * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA establishes an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit for NMFS' review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the public comment period, NMFS must either issue or deny the authorization. NMFS must publish a notice in the
Except with respect to certain activities not pertinent here, the MMPA
NMFS received an application on October 7, 2011, from the SGRLPS for the taking by harassment, of marine mammals, incidental to conducting aircraft operations and restoration and maintenance activities on the St. George Reef Light Station (Station). NMFS determined that application complete and adequate on October 21, 2011. NMFS made the complete application available for public comment (see
The SGRLPS aims to: (1) Restore and preserve the Station on a monthly basis (November 1 through April 30, annually); and (2) perform periodic, annual maintenance on the Station's optical light system. The Station, which is listed in the National Park Service's National Register of Historic Places, is located on Northwest Seal Rock (NWSR) offshore of Crescent City, California in the northeast Pacific Ocean.
The specified activities would occur in the vicinity of a possible pinniped haul out site located on NWSR. Acoustic and visual stimuli generated by: (1) Helicopter landings/takeoffs; (2) noise generated during restoration activities (
To date, NMFS has issued two, 1-year IHAs to the SGRLPS for the conduct of the same activities from 2009 to 2011. This will be the SGRLPS' third IHA.
SGRLPS would conduct the activities (aircraft operations, lighthouse restoration, and light maintenance activities) between February 10, 2012, through April 30, 2012, and during the period of November 1, 2012, through December 31, 2012, at a maximum frequency of one session per month. The duration for each session would last no more than three days (
Because NWSR has no safe landing area for boats, the restoration activities would require the SGRLPS to transport personnel and equipment from the California mainland to NWSR by a small helicopter. SGRLPS would transport no more than 15 work crew members and equipment to NWSR for each session and estimates that each session would require no more than 36 helicopter landings/takeoffs per month.
Restoration activities would include the removal of peeling paint and plaster, restoration of interior plaster and paint, refurbishing structural and decorative metal, reworking original metal support beams throughout the lantern room and elsewhere, replacing glass as necessary, and upgrading the present electrical system. The SGRLPS expects to complete most of the major restoration work within five years.
The SGRLPS will need to conduct maintenance on the Station's beacon light at least once or up to two times per year within the work window. Scheduled light maintenance activities would coincide with lighthouse restoration activities conducted monthly during the period of February through April, 2012 and during the period of November through December, 2012. The SGRLPS expects that maintenance activities would not exceed three hours per each monthly session.
If the beacon light fails during the period from February 10, 2012, through April 30, 2012, or during the period of November 1, 2012, through December 31, 2012, the SGRLPS would send a crew of two to three people to the Station by helicopter to repair the beacon light. For each emergency repair event, the SGRLPS would conduct a maximum of four flights (two arrivals and two departures) to transport equipment and supplies. The helicopter may remain on site or transit back to shore and make a second landing to pick up the repair personnel.
In the case of an emergency repair between May 1, 2012, and October 31, 2012, the SGRLPS would consult with the NMFS Southwest Regional Office (SWRO) to best determine the timing of the trips to the lighthouse, on a case-by-case basis, based upon the existing environmental conditions and the abundance and distribution of any marine mammals present on NWSR. The SWRO biologists would have real-time knowledge regarding the animal use and abundance of the NWSR at the time of the repair request and would make a decision regarding when the trips to the lighthouse can be made during the emergency repair time window that would have the least practicable adverse impact to marine mammals. The SWRO would also ensure that the SGRLPS' request for incidental take during emergency repairs would not exceed the number of incidental take authorized in the IHA.
NMFS has outlined the purpose of the program in a previous notice for the proposed IHA (76 FR 79157, December 21, 2011). The planned activities have not changed between the proposed IHA notice and this final notice announcing the issuance of the IHA. For a more detailed description of the authorized action, including aircraft and acoustic source specifications, the reader should refer to the notice for the proposed IHA (76 FR 79157, December 21, 2011).
NMFS published a notice of receipt of the SGRLPS' application and proposed IHA in the
The Station is located on a small, rocky islet (41°50′24″ N, 124°22′06″ W) approximately nine kilometers (km) (6.0 miles (mi)) in the northeast Pacific Ocean, offshore of Crescent City, California (Latitude: 41°46′48″ N; Longitude: 124°14′11″ W).
The marine mammal species likely to be harassed incidental to helicopter operations, lighthouse restoration, and lighthouse maintenance on NWSR are the California sea lion, the Pacific harbor seal, the eastern Distinct Population Segment (DPS) of Steller sea lion, and the eastern Pacific stock of northern fur seal. California sea lions and Pacific harbor seals are not listed as threatened or endangered under the Endangered Species Act (ESA; 16 U.S.C. 1531
NMFS has presented a more detailed discussion of the status of these stocks and their occurrence in the northwestern Pacific Ocean, as well as other marine mammal species that may occur around NWSR in the notice for the proposed IHA (76 FR 79157, December 21, 2011).
Acoustic and visual stimuli generated by: (1) Helicopter landings/takeoffs; (2) noise generated during restoration activities (
There is a dearth of information on acoustic effects of helicopter overflights on pinniped hearing and communication (Richardson
Some behavioral disturbance is expected; however NMFS expects the disturbance to be localized and short-term. If pinnipeds are present on NWSR, Level B behavioral harassment of pinnipeds may occur during helicopter landing and takeoff from NWSR due to the pinnipeds temporarily moving from the rocks and lower structure of NWSR into the sea due to the noise and appearance of helicopter during approaches and departures. It is expected that all or a portion of the marine mammals hauled out on the island will depart the rock and move into the water upon the initial helicopter approach.
The notice of the proposed IHA (76 FR 79157, December 21, 2011) provided a discussion of: (1) The sound levels produced by the helicopter; (2) behavioral reactions of pinnipeds to helicopter operations and light construction noise; (3) hearing impairment and other non-auditory physical effects; (4) behavioral reactions to visual stimuli; (5) and specific observations gathered during previous monitoring of the marine mammals present on NWSR. NMFS refers readers to the reader to the SGRLPS' application and NMFS' EA for additional information on the behavioral reactions (or lack thereof) by pinnipeds to aircraft overflights.
Sudden movement of large numbers of animals may cause a stampede. In order to prevent such stampedes from occurring within the sea lion colony, NMFS would require certain mitigation requirements and restrictions, such as controlled helicopter approaches and limited access period during the pupping season. As such, and because any pinnipeds nearby likely would avoid the approaching helicopter, NMFS anticipates that there will be no instances of injury or mortality during the project.
The NMFS expects that there will be no long- or short-term physical impacts to pinniped habitat on NWSR. NMFS provided a detailed discussion of the potential effects of this action on marine mammal habitat in the notice of the proposed IHA (76 FR 79157, December 21, 2011). The SGRLPS proposes to confine all restoration activities to the existing structure which would occur on the upper levels of the Station which are not used by marine mammals. The SGRLPS would remove all waste, discarded materials and equipment from the island after each visit. The activities will not result in any permanent impact on habitats used by marine mammals, including the food sources they use. The main impact associated with the activity will be temporarily elevated noise levels and the associated direct effects on marine mammals.
In order to issue an incidental take authorization (ITA) under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses.
The SGRLPS has based the mitigation measures described herein, to be implemented for the helicopter operations and restoration activities, on the following: (1) Protocols used during the 2010 IHA for helicopter operations and restoration activities as approved by NMFS; (2) recommended best practices in Richardson
To reduce the potential for disturbance from acoustic and visual stimuli associated with the activities, the SGRLPS and/or its designees will implement the following mitigation measures for marine mammals:
(1) Limit the time and frequency of the restoration activities;
(2) Employ helicopter approach and timing techniques; and
(3) Avoidance of visual and acoustic contact with marine mammals by the SGRLPS and/or its designees.
Since the most severe impacts (stampede) are precipitated by rapid and direct helicopter approaches, initial approach to the Station must be offshore from the island at a relatively high altitude (
NMFS has carefully evaluated the applicant's mitigation measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's mitigation measures, NMFS has determined that these measures provide the means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present.
At least once during the period between February 10, 2012, through April 30, 2012, or during the period of November 1, 2012, through December 31, 2012 a qualified biologist shall be present during all three workdays at the Station. The biologist hired will be subject to approval of NMFS and this requirement may be modified depending on the results of the monitoring report from the 2011 season.
The qualified biologist shall document use of the island by the pinnipeds, frequency, (
Aerial photographic surveys may provide the most accurate means of documenting species composition, age and sex class of pinnipeds using the project site during human activity periods. Aerial photo coverage of the island shall be completed from the same helicopter used to transport the SGRLPS personnel to the island during restoration trips. A skilled photographer shall take photographs of all marine mammals hauled out on the island at an altitude greater than 300 m (984 ft), prior to the first landing on each visit included in the monitoring program. Photographic documentation of marine mammals present at the end of each three-day work session shall also be made for a before and after comparison. The SGRLPS will forward these photographs to a biologist capable of discerning marine mammal species. Data shall be provided to NMFS in the form of a report with a data table, any other significant observations related to marine mammals, and a report of restoration activities (see Reporting). The original photographs can be made available to NMFS or other marine mammal experts for inspection and further analysis.
The SGRLPS personnel will record data to document the number of marine mammals exposed to helicopter noise and to document apparent disturbance reactions or lack thereof. SGRLPS and NMFS will use the data to estimate numbers of animals potentially taken by Level B harassment.
The SGRLPS will submit interim monitoring reports to the NMFS SWRO Administrator and the NMFS Director of Office of Protected Resources no later than 30 days after the conclusion of each monthly session. The interim report will describe the operations that were conducted and sightings of marine mammals near the project. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring.
Each interim report will provide:
(i) A summary and table of the dates, times, and weather during all helicopter operations, and restoration and maintenance activities.
(ii) Species, number, location, and behavior of any marine mammals, observed throughout all monitoring activities.
(iii) An estimate of the number (by species) of marine mammals that are known to have been exposed to acoustic stimuli associated with the helicopter operations, restoration and maintenance activities.
(iv) A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.
In addition to the interim reports, the SGRLPS will submit a draft Final Monitoring Report to NMFS no later than 90 days after the project is completed to the Regional Administrator and the Director of Office
The final report will provide:
(i) A summary and table of the dates, times, and weather during all helicopter operations, and restoration and maintenance activities.
(ii) Species, number, location, and behavior of any marine mammals, observed throughout all monitoring activities.
(iii) An estimate of the number (by species) of marine mammals that are known to have been exposed to acoustic stimuli associated with the helicopter operations, restoration and maintenance activities.
(iv) A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury (Level A harassment), serious injury or mortality (
The report must include the following information:
• Time, date, and location (latitude/longitude) of the incident;
• Environmental conditions (
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities will not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with the SGRLPS to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The SGRLPS may not resume their activities until notified by NMFS via letter, email, or telephone.
In the event that the SGRLPS discovers an injured or dead marine mammal, and the biologist (if present) determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that the SGRLPS discovers an injured or dead marine mammal, and the lead biologist (if present) determines that the injury or death is not associated with or related to the activities authorized in the IHA (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: “ * * * any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
Only take by Level B harassment is anticipated and authorized as a result of the helicopter operations and restoration and maintenance activities on NWSR.
Based on pinniped survey counts conducted by CCR on NWSR in the spring of 1997, 1998, 1999, and 2000 (CCR, 2001), NMFS estimates that approximately 204 California sea lions (calculated by multiplying the average monthly abundance of California sea lions (zero in April, 1997 and 34 in April,1998) present on NWSR by 6 months of the restoration and maintenance activities), 172 Steller sea lions (NMFS' estimate of the maximum number of Steller sea lions that could be present on NWSR with a 95-percent confidence interval), 36 Pacific harbor seals (calculated by multiplying the maximum number of harbor seals present on NWSR (6) by 6 months), and 6 northern fur seals (calculated by multiplying the maximum number of northern fur seals present on NWSR (1) by 6 months) could be potentially affected by Level B behavioral harassment over the course of the IHA. Estimates of the numbers of marine mammals that might be affected are based on consideration of the number of marine mammals that could be disturbed appreciably by approximately 51 hrs of aircraft operations during the course of the activity. These incidental harassment take numbers represent approximately 0.14 percent of the U.S. stock of California sea lion, 0.42 percent of the eastern U.S. stock of Steller sea lion, 0.11 percent of the California stock of Pacific harbor seals, and 0.06 percent of the San Miguel Island stock of northern fur seal. Because of the required mitigation measures and the likelihood that some pinnipeds will avoid the area, no injury or mortality to pinnipeds is expected nor requested.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “ * * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers:
(1) The number of anticipated injuries, serious injuries, or mortalities;
(2) The number, nature, and intensity, and duration of Level B harassment (all relatively limited);
(3) The context in which the takes occur (
(4) The status of stock or species of marine mammals (
(5) Impacts on habitat affecting rates of recruitment/survival; and
(6) The effectiveness of monitoring and mitigation measures.
For reasons stated previously in this document and in the notice of the proposed IHA (76 FR 79157, December 21, 2011), the specified activities associated with the SGRLPS' helicopter operations and restoration/maintenance activities are not likely to cause PTS, or other non-auditory injury, serious injury, or death because:
(1) The likelihood that, given sufficient notice through relatively slow helicopter approaches, NMFS expects marine mammals to gradually move away from a noise source that is annoying prior to its becoming potentially injurious; and
(2) The potential for temporary or permanent hearing impairment is relatively low and would likely be avoided through the incorporation of the required monitoring and mitigation measures.
As mentioned previously, NMFS estimates that four species of marine mammals could be potentially affected by Level B harassment over the course of the IHA. For each species, these numbers are small (each, less than one percent) relative to the population size.
No takes by Level A harassment, serious injury, or mortality are anticipated to occur as a result of the SGRLPS' specified activities, and none are authorized. Only short-term behavioral disturbance is anticipated to occur due to the brief and sporadic duration of the activities; the availability of alternate areas near NWSR for marine mammals to avoid the resultant acoustic disturbance; and limited access to NWSR during the pupping season. Due to the nature, degree, and context of the behavioral harassment anticipated, the activities are not expected to impact rates of recruitment or survival.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that the SGRLPS' planned helicopter operations and restoration/maintenance activities, would result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from the helicopter operations and restoration/maintenance activities will have a negligible impact on the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action.
The Steller sea lion, eastern Distinct Population Segment is listed as threatened under the ESA and occurs in the action area. NMFS Headquarters' Office of Protected Resources, Permits and Conservation Division conducted a formal section 7 consultation under the ESA with the Southwest Region, NMFS. On January 27, 2010, the Southwest Region issued a Biological Opinion (BiOp) and concluded that the issuance of IHAs are likely to adversely affect, but not likely to jeopardize the continued existence of Steller sea lions. NMFS has designated critical habitat for the eastern DPS of Steller sea lions in California at Año Nuevo Island, Southeast Farallon Island, Sugarloaf Island and Cape Mendocino, California pursuant to section 4 of the ESA (see 50 CFR 226.202(b)). Northwest Seal Rock is neither within nor nearby these designated areas. Finally, the BiOp included an ITS for Steller sea lions. The ITS contains reasonable and prudent measures implemented by terms and conditions to minimize the effects of this take. NMFS has reviewed the 2010 BiOp and determined that there is no new information regarding effects to Stellar sea lions; the action has not been modified in a manner which would cause adverse effects not previously evaluated; there has been no new listing of species or designation of critical habitat that could be affected by the action; and, the action will not exceed the extent or amount of incidental take authorized in the ITS. Therefore, the IHA did not require reinitiation of a Section 7 consultation.
To meet NMFS' NEPA requirements for the issuance of an IHA to the SGRLPS, NMFS prepared an Environmental Assessment (EA) in 2010 that was specific to conducting aircraft operations and restoration and maintenance work on the St. George Reef Light Station. The EA, titled “Issuance of an Incidental Harassment Authorization to Take Marine Mammals by Harassment Incidental to Conducting Aircraft Operations, Lighthouse Restoration and Maintenance Activities on St. George Reef Lighthouse Station in Del Norte County, California,” evaluated the impacts on the human environment of NMFS' authorization of incidental Level B harassment resulting from the specified activity in the specified geographic region. At that time, NMFS concluded that issuance of an IHA November 1 through April 30, annually would not significantly affect the quality of the human environment and issued a Finding of No Significant Impact (FONSI) for the 2010 EA regarding the SGRLPS' activities. In conjunction with the SGRLPS' 2012 application, NMFS has again reviewed the 2010 EA and determined that there are no new direct, indirect or cumulative impacts to the human and natural environment associated with the IHA requiring evaluation in a supplemental EA and NMFS, therefore, reaffirms the 2010 FONSI. An electronic copy of the EA and the FONSI for this activity is available upon request (see
NMFS has determined that the impact of conducting the specific helicopter operations and restoration activities described in this notice and in the IHA request in the specific geographic region in the northwestern Pacific Ocean may result, at worst, in a temporary modification in behavior (Level B harassment) of small numbers of marine mammals. Further, this activity is expected to result in a negligible impact on the affected species or stocks of marine mammals. The provision requiring that the activity not have an unmitigable impact on the availability of the affected species or stock of marine mammals for subsistence uses is not implicated for this action.
As a result of these determinations, NMFS has issued an IHA to the SGRLPS to conduct helicopter operations and restoration and maintenance work on the St. George Reef Light Station on Northwest Seal Rock in the northeast Pacific Ocean from the period of February 10, 2012, through April 30, 2012, or during the period of November 1, 2012, through December 31, 2012, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The duration of the IHA would not exceed one year from the date of its issuance.
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“CFTC” or “Commission”) seeks public comment on the collection of certain information by the Commission under section 745 of the Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). The Paperwork Reduction Act (“PRA”) requires federal agencies to publish a notice in the
Comments must be submitted on or before April 2, 2012.
You may submit comments, identified by “Part 40 Notice and Comment Collection,” by any of the following methods:
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All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
Bella Rozenberg, Assistant Deputy Director, Division of Market Oversight, Commodity Futures Trading Commission, (202) 418–5119
Under the PRA, federal agencies must obtain approval from the Office of Management and Budget (“OMB”) for each collection of information they collect or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) as “the obtaining, causing to be obtained, soliciting * * * facts or opinions by or for any agency, regardless of form or format [from] ten or more persons.” An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number. Section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), requires federal agencies to provide a 60-day notice in the
In the Commission's final rulemaking on provisions common to registered entities,
The Commission initially estimated that approximately 45 entities would be affected by the rule certification procedures.
The Commission cannot determine with precision how many of the 7,000 responses it expects to receive will be stayed and subject to the notice and comment requirements of section 745 and the part 40 regulations. The Commission anticipates that only a small fraction of these responses would be stayed and subject to a request for comment via Web site notice, and that each of the stayed rules or rule amendments typically will receive not more than 20 comments, a conservative number based on Commission history with industry filings.
Bureau of Consumer Financial Protection.
Notice of public availability of FY 2011 Service Contract Inventory.
In accordance with Section 734 of Division C of the Consolidated Appropriations Act of 2010 (Pub. L. 111–117), the Bureau of Consumer Financial Protection (Bureau) is publishing this notice to advise the public of the availability of the FY 2011 service contract inventory. This inventory provides information on service contract actions over $25,000, which the Bureau awarded during FY 2011. The information is organized by function to show how contracted resources were used by the agency to support its mission. The inventory has been developed in accordance with the guidance issued on November 5, 2010 by the Office of Management and Budget's Office of Federal Procurement Policy (OFPP). OFPP's guidance is available at:
Questions regarding the service contract inventory should be directed to Hoa Crews, Senior Procurement Analyst, Office of Procurement, Consumer Financial Protection Bureau, (202) 435–7422.
Consumer Product Safety Commission.
Notice.
The Consumer Product Safety Commission (“CPSC” or “we”), in accordance with section 743(c) of Division C of the Consolidated Appropriations Act, 2010 (Pub. L. 111–117, 123 Stat. 3034, 3216), is announcing the availability of its service contract inventory for fiscal year (“FY”) 2011. This inventory provides information on service contract actions over $25,000 that we made in FY 2011.
Donna Hutton, Director, Division of Procurement Services, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814. Telephone: 301–504–7009; email
On December 16, 2009, the Consolidated Appropriations Act, 2010 (“Consolidated Appropriations Act”), Public Law 111–117, became law. Section 743(a) of the Consolidated Appropriations Act titled, “Service Contract Inventory Requirement,” requires agencies to submit to the Office of Management and Budget (“OMB”) an annual inventory of service contracts awarded or extended through the exercise of an option on or after April 1, 2011, and describes the contents of the inventory. The contents of the inventory include:
(A) A description of the services purchased by the executive agency and the role the services played in achieving agency objectives, regardless of whether such a purchase was made through a contract or task order;
(B) The organizational component of the executive agency administering the contract, and the organizational component of the agency whose requirements are being met through contractor performance of the service;
(C) The total dollar amount obligated for services under the contract and the funding source for the contract;
(D) The total dollar amount invoiced for services under the contract;
(E) The contract type and date of award;
(F) The name of the contractor and place of performance;
(G) The number and work location of contractor and subcontractor employees, expressed as full-time equivalents for direct labor, compensated under the contract;
(H) Whether the contract is a personal services contract; and
(I) Whether the contract was awarded on a noncompetitive basis, regardless of date of award.
Section 743(a)(3)(A) through (I) of the Consolidated Appropriations Act. Section 743(c) of the Consolidated Appropriations Act requires agencies to “publish in the
Consequently, through this notice, we are announcing that the CPSC's service contract inventory for FY 2011 is available to the public. The inventory provides information on service contract actions over $25,000 that we made in FY 2011. The information is organized by function to show how contracted resources are distributed throughout the CPSC. We developed the inventory in accordance with guidance issued on December 19, 2011 by the OMB. The OMB guidance is available at:
Notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by March 16, 2012.
Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DOD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
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Written request for copies of the information collection proposal should be sent to Ms. Patricia Toppings, 2nd Floor, East Tower, Suite 02G09, Mark Center Drive, Alexandria, VA 22350–3100.
Office of the Under Secretary of Defense (Personnel and Readiness), DoD.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Under Secretary of Defense (Personnel and Readiness) announces a proposed public information collection and seeks public comment on the provisions thereof. 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 burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Department of Defense Education Activity, 4040 North Fairfax Drive, Arlington, VA 22203–1635, or call at (703) 588–3175.
The Department of Defense Education Activity (DoDEA) Customer Satisfaction Survey for Sponsors and Students will be administered to DoDEA students in grades 4–12, and to all parents and/or sponsors of DoDEA students. Participating in the survey is completely voluntary and will be administered through an online, Web-based technology. In order to have comparison between DoDEA parents and parents of students in U.S. public schools, some survey questions from the Phi Delta Kappa/Gallup Poll of the Public's Attitudes Toward Schools will be used. Additional survey questions were developed to address specific issues and needs within DoDEA. The surveys will give parents/sponsors and students an
The information derived from these surveys will be used to improve planning efforts at all levels throughout DoDEA. Schools, districts, and areas will use the survey results to gain insight into the satisfaction levels of sponsors and students, which is one of many measures used for future planning of programs and services offered to DoDEA's students. The survey results will also be used as an outcome measure to monitor progress on the goals of the DoDEA Community Strategic Plan.
Defense Logistics Agency, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Defense Logistics Agency announces a proposed public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Logistics Agency, J–651, 8725 John J. Kingman Road, Fort Belvoir, Virginia, 22060, or call (717) 770–6680.
Respondents are individuals who work for Defense Logistics Agency, Information Operations, J–6, and log into the automated project time record system to annotate their time worked on each project.
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Assistant Secretary of Defense for Health Affairs announces a proposed public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to TRICARE Management Activity, Purchased Care Procurement Branch, 16401 E. Centretech Parkway, Aurora, CO 80011–9066, or telephone (303) 676–3613.
This collection instrument is for use by medical institutions filing for reimbursement with the Defense Health Program, TRICARE, which includes the Civilian Health and Medical Program of the Uniformed Services (TRICARE/CHAMPUS). TRICARE/CHAMPUS is a health benefits entitlement program for the dependents of active duty members of the Uniformed Service, and deceased sponsors, retirees and their dependents, dependents of department of transportation (Coast Guard) sponsors, and certain North Atlantic treaty Organization, National Oceanic and Atmospheric Administration, and Public Health Service eligible beneficiaries. Use of the UB–04 CMS1450 continues TRICARE/CHAMPUS commitments to use the national standard claim form for reimbursement of medical services/supplies provided by institutional providers.
Defense Finance and Accounting Service, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Defense Finance and Accounting Service announces a proposed public information collection and seeks public comment on the provisions thereof. 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 estimation of the burden of the proposed information collection; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Disbursing Management Policy Division, Defense Finance and Accounting Service Kansas City, DFAS–NPD/KC, 1500 E. 95th Street, Kansas City, MO 64197–0030, or call at (816) 926–3600.
The Application Form for DoD SVC Programs is used to ascertain pertinent information needed by DoD in order to have the authorization for the transfer of funds from a financial institution to the SVC and to obtain an agreement from the individual for the immediate checkage of their pay in the event a debt to the United States Government occurs.
Office of the Under Secretary of Defense (Personnel and Readiness), DoD.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Under Secretary of Defense (Personnel and Readiness) announces a proposed public information collection and seeks public comment on the provisions thereof. 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 burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of the Under Secretary of Defense (Personnel and Readiness) Defense Commissary Agency, ATTN DOB (Barry White), 1300 E Avenue, Fort Lee, VA 23801–1800, or call (804) 734–8974.
(All respondents are authorized patrons by DoD regulations, unless otherwise described.)
Surveys will support commissary renovation and new construction. Survey results will be used to help determine market potential and associated commissary size requirements.
Surveys will support commissary site decisions. Where applicable, commissary user preference can be incorporated into the site location decision process. Patrons will input their answers to questions concerning where they would like a new facility located, as well as give their opinions and concerns that will affect their shopping experience. The survey results will also be used to estimate where the commissary users are located through the use of population density maps.
These surveys will aid in predicting the impact to commissaries that are near a closing commissary or a commissary that is undergoing some kind of transformation that may cause commissary users to migrate to an alternative nearby commissary. The results will be used to determine requirements for the nearby receiving commissaries.
These surveys will supply information on various processes within the commissaries. The surveyed population could be commissary customers, employees within the Agency, vendors, distributors, or contractors. Persons surveyed will not necessarily be authorized commissary users.
These surveys will be administered to commissary eligible personnel to assess their perception of our savings compared to local commercial supermarkets.
This survey will be conducted, as needed, to assess the demographic make-up of commissary users. The results may be used in conjunction with population data to reveal differences in key demographics such as status, family size, distance from a commissary, age, service membership, and military grade.
Director of Administration and Management, Office of the Secretary, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Director of Administration and Management, Office of the Secretary announces a proposed public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Director of Administration and Management, Directorate for Organizational and Management Planning, 1950 Defense Pentagon, Washington, DC 20301–1950; or telephone (703) 697–1142.
The Biennial Review employs a survey to assess organizational-customer satisfaction with the associated business line and addresses overall responsiveness to customer requirements, satisfaction with specific products and services, and quality of coordination with organizational customers. The survey identifies distinct areas of business (business lines) for all Defense Agencies and DoD Field Activities participating in the Review, creates lists of organizational customers specific to each business line, and uses a set of standard evaluation questions across all business lines. Respondents covered by this announcement are private-sector customers of these business lines, such as for the Federal Voting Assistance Program and Defense Finance and Accounting Service.
Defense Security Service, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Defense Security Service (DSS) announces a proposed public information collection and seeks public comments on the provision thereof. Comments are invited on: (a) Whether the proposed collection 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 hours of the information to be collected; and (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Defense Security Service, Personnel Security Clearance Office, 1340 Braddock Place, Alexandria, VA 22314, or telephone at 703–325–6050.
Executive Order (EO) 12829, “National Industrial Security Program (NISP),” stipulates that the Secretary of Defense shall serve as the Executive Agent for inspecting and monitoring the contractors, licensees, and grantees who require or will require access to classified information; and for determining the eligibility for access to classified information of contractors, licensees, and grantees and their respective employees. E.O. 12829 also authorizes the Executive Agent to issue, after consultation with affected agencies, standard forms that will promote the implementation of the NISP.
The Under Secretary of Defense for Intelligence assigned DSS to exercise authority and responsibility for central operational management of DoD PSI workload projections, and monitoring of PSI funding and investigation quality issues for DoD components to include cleared contractors under the National Industrial Security Program. In the past, DSS has relied on historical data for agency budget projections regarding the numbers of PSIs required by cleared contractor entities; however, historical data did not provide a particularly accurate or credible estimate of such workload. In this annual collection of information, DSS asks the Facility Security Officers of cleared contractor entities to provide projections of the numbers and types of personnel security investigations required as well as providing a description of the methodology used for the projections, and the percentage of the cleared contractor's projections representing DoD and non-DoD (NISP) agencies PSI requirements for cleared contractors. The data will be incorporated into DSS' budget submissions and to track against actual cleared contractor's actual PSI submissions.
The Office of Personnel Management (OPM) has responsibility to conduct PSIs and the subsequent periodic reinvestigations (PRs) in accordance with the Code of Federal Regulations, Title 5, Part 736.
Representative of various industry associations, the National Industrial Security Program Policy Advisory Committee (NISPPAC), the Military Services, various elements of the Department of Defense and other Federal Government Agencies are familiar with the annual survey.
Defense Finance and Accounting Service, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Defense Finance and Accounting Service announces a proposed public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Military Pay, Standards and Compliance, Defense Finance and Accounting Service, DFAS–JJFMB/CL, 1240 East 9th Street, Room 1781, Cleveland, Ohio 44199, or call at (216) 204–3631.
The Service Casualty Office completes the upper portion of the DD Form 397 and then provides the form to the beneficiaries. The beneficiaries complete their portion of the DD Form 397 and then sign the form and have it witnessed. Once the documents are completed they are forwarded to DFAS for payment.
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Assistant Secretary of Defense for Health Affairs announces a public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and or RIN number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Office of the Assistant Secretary of Defense for Health Affairs (OASD), 5111 Leesburg Pike, Suite 810A, Falls Church, VA 22041–3206, or call (703) 681–0039.
DMHRSi is one of the premier Joint Medical Information System software applications. It provides the Military Health System (MHS) (including Health Affairs, the TRICARE Management Activity, and the JMISO Office) with a comprehensive enterprise human resource system with capabilities to manage our personnel, manpower, education & training, labor cost assignment, and readiness functional areas. Everyone in the MHS—Active Duty, Reserves, National Guard, government civilian, contractor, and volunteer—assigned or borrowed, will be accounted for in DMHRSi.
Most JMIS products are designed for deployment to medical facilities and field use. DMHRSi has applicability at the headquarters level allowing JMIS to use this product to conduct its own day-to-day workforce management. This comprehensive tool provides the capability to manage positions, develop telephone rosters, monitor individual training status, etc. Deciding to implement DMHRSi within all JMIS program offices, provides a great opportunity to LEAD BY EXAMPLE using the application just as we expect those “in the field” to do.
The information in DMHRSi is sometimes personal or sensitive; therefore it contains built-in safeguards to limit access and visibility of this information. DMHRSi uses role-based security so a user sees only the information for which permission has been granted. It uses state-of-the-market 128-bit encryption security for our transactions. It is DITSCAP certified, having been subjected to and passed thorough security testing and evaluation by independent parties. It meets safeguards specified by the Privacy Act of 1974 in that it maintains a published Department of Defense (DoD) Privacy Impact Assessment and System of Record covering Active Duty Military, Reserve, National Guard, and government civilian employees, to include non-appropriated fund employees and foreign nationals, DoD contractors, and volunteers. DMHRSi is hosted in a secure facility managed by the Defense Information Systems Agency.
For JMIS military and government civilian personnel, most of the required data is received from Service or DoD source systems. However, there may be some additional data entered locally. For contract support personnel, records must be created. So, the first step to implement DMHRSi in JMIS is to collect selected data and have it entered into the application. JMIS will provide templates to ease this initial data gathering process.
Once the initial record is created, there is some data such as local address and phone number that each employee can review and maintain individually. This is accomplished through the DMHRSi Employee Self-Service interface. Therefore, the second step to implement DMHRSi in JMIS is for all personnel to complete two online courses, Introduction to DMHRSi and DMHRSi Employee Self-Service. Training is through the MHS Learning Management System—MHS Learn—accessed at
Office of the Under Secretary of Defense (Personnel and Readiness), DoD.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Under Secretary of Defense (Personnel and Readiness) announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: 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; the accuracy of the agency's estimate of burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Manpower Data Center (DMDC), 1600 Wilson Boulevard, Suite 400, Arlington, VA 22209–2593, or call at 571–372–1102.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires that persons who serve or have served in the Armed Forces, Reserves, National Guard or other “uniformed services:” (1) Are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service. The Act covers members of the Uniformed Services, any other category of persons designated by the President in time of war or national emergency, and their government and civilian employers. It is the responsibility of the Employer Support of the Guard and Reserve (ESGR) to promote cooperation and understanding between Reserve component members and their civilian employers and to assist in the resolution of conflicts arising from an employee's military commitment. The Department of Defense National Survey of Employers is being conducted on a statistically random basis to determine best practices of ESGR in supporting employers of Reserve and Guard members and to evaluate the effectiveness of ESGR and DoD programs. The information collected is used for overall program evaluation, management and improvement.
Office of the Under Secretary of Defense (Personnel and Readiness), DoD.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Under Secretary of Defense (Personnel and Readiness) announces a proposed public information collection and seeks public comment on the provisions thereof. 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 burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of the Under Secretary of Defense (Personnel and Readiness) (Military Personnel Policy/Accession Policy), 4000 Defense Pentagon, Washington, DC 20301–4000 or call at (703) 697–9271.
The 2007 National Defense Authorization Act (NDAA), section 546, directs the Secretary of Defense to conduct a test of the utility of test preparation guides in enhancing recruit candidate performance on the Armed Services Vocational Aptitude Battery (ASVAB). The instrument used to collect the information is the ASVAB Preparation Questionnaire, which covers: (a) ASVAB test taking history, (b) ASVAB preparation behaviors, (c) academic history, and (d) language spoken and education level of parents. The potential respondent universe consists of all military applicants who complete the ASVAB when taken at Military Entrance Processing Stations (MEPS) and Military Entrance Testing Sites (METS). The questionnaire will be administered immediately after the applicant completes the ASVAB. Computer administration will be used in the MEPS and paper and pencil in the METS. The information collected will be used for program planning, and to compile the congressionally-mandated report.
Department of Defense, Office of the Deputy Under Secretary of Defense (Installations and Environment).
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Deputy Under Secretary of Defense (Installations and Environment) announces a proposed public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of the Deputy Under Secretary of Defense (Installations & Environment), 3400 Defense Pentagon, Washington, DC 20301–3400, or call (703) 695–6107.
Respondents are community members of restoration advisory boards or technical review committees requesting technical assistance to interpret scientific and engineering issues regarding the nature of environmental hazards at an installation. This assistance will assist communities in participating in the cleanup process. The information, directed by 10 U.S.C. 2705, will be used to determine the eligibility of the proposed project, begin the procurement process to obtain the requested products or services, and determine the satisfaction of community members of restoration advisory boards and technical review communities receiving the products and services.
Department of Defense, DoD.
Interim final guidance.
The Department of Defense (DoD) publishes for public comment Interim Final Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons (DoD Recipient LEP Guidance). The DoD Recipient LEP Guidance is based on the prohibition against national origin discrimination in Title VI of the Civil Rights Act of 1964, as affects limited English proficient persons.
Comments must be received on or before March 16, 2012.
Please submit only one set of comments via one of the methods described.
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James E. Love, (703) 571–9331. Arrangements to receive the policy in an alternative format may be made by contacting the named individual.
Under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d,
On March 14, 2002, the Office of Management and Budget (OMB) issued a Report to Congress titled “Assessment of the Total Benefits and Costs of Implementing Executive Order No. 13166: Improving Access to Services for Persons with Limited English Proficiency.” Among other things, the Report recommended the adoption of uniform guidance across all Federal agencies, with flexibility to permit tailoring to each agency's specific recipients. Consistent with this OMB recommendation, the DOJ published LEP Guidance for DOJ recipients which was drafted and organized to also function as a model for similar guidance by other Federal grant agencies. See 67 FR 41455 (June 18, 2002). This interim final DoD Guidance is based upon the model of June 18, 2002, DOJ LEP Guidance for Recipients.
The primary focus of this Guidance is on entities that receive Federal financial assistance from DoD, either directly or indirectly, through a grant, cooperative agreement, contract or subcontract, and operate programs or activities or portions of programs or activities in the United States and its territories.
In connection with the issuance of this Guidance, each DoD component is encouraged to review their current programs and activities to determine whether they provide the type of external assistance to a recipient which is subject to Title VI. If Title VI is determined to be applicable to one or more program or activity, the administering component should consider developing a program-specific Appendix to this Guidance. The Appendix should explain how the component's recipients may ensure meaningful linguistic access consistent with the principles and compliance standards set out in DoD's LEP Guidance for Recipients below. The Appendix will be submitted to DOJ for review and approval prior to publication in the
It has been determined that the Guidance does not constitute a regulation subject to the rulemaking requirements of the Administrative Procedures Act, 5 U.S.C. 533. It has also been determined that this Guidance is not subject to the requirements of Executive Order 12866.
The text of the complete proposed Guidance document appears below.
Most individuals living in the United States read, write, speak and understand English. There are many individuals, however, for whom English is not their primary language. For instance, based on the 2000 census, over 26 million individuals speak Spanish and almost 7 million individuals speak an Asian or Pacific Island language at home. If these individuals have a limited ability to read, write, speak, or understand English, they are limited English proficient, or “LEP.” The 2000 census indicates that 28.1% of all Spanish-speakers, 28.2% of all speakers of Chinese languages, and 32.3% of all Vietnamese-speakers reported that they spoke English “not well” or “not at all.”
Language for LEP individuals can be a barrier to accessing important benefits or services, understanding and exercising important rights, complying with applicable responsibilities, or understanding other information provided by federally funded programs and activities. The Federal Government funds an array of services that can be made accessible to otherwise eligible LEP persons. The Federal Government is committed to improving the accessibility of these programs and activities to eligible LEP persons, a goal that reinforces its equally important commitment to promoting programs and activities designed to help individuals learn English. Recipients should not overlook the long-term positive impacts of incorporating or offering English as a Second Language (ESL) programs in parallel with language assistance services. ESL courses can serve as an important adjunct to a proper LEP plan. However, the fact that ESL classes are made available does not obviate the statutory and regulatory requirement to provide meaningful access for those who are not yet English proficient. Recipients of Federal financial assistance have an obligation to reduce language barriers that can preclude meaningful access by LEP persons to important government services.
This policy Guidance clarifies existing legal requirements for LEP
In certain circumstances, failure to ensure that LEP persons can effectively participate in or benefit from federally assisted programs and activities may violate the prohibition under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, and Title VI regulations against national origin discrimination. The purpose of this policy Guidance is to assist recipients in fulfilling their responsibility to provide meaningful access to LEP persons under existing law.
As with most government initiatives, this policy Guidance requires balancing several principles. While this Guidance discusses that balance in some detail, it is important to note the basic principles behind that balance. First, we must ensure that federally assisted programs aimed at the American public do not leave some behind simply because they face challenges communicating in English. This is of particular importance because, in many cases, LEP individuals form a substantial portion of those encountered in federally assisted programs. Second, we must achieve this goal while finding constructive methods to reduce the costs of LEP requirements on small businesses, small local governments, or small non-profits that receive Federal financial assistance.
In addition, many DoD recipients also receive Federal financial assistance from other Federal agencies, such as the Department of Education or the Department of Health and Human Services. While guidance from those Federal agencies is consistent with this Guidance, recipients receiving assistance from multiple agencies should review those agencies' guidance documents at
There are many productive steps that the Federal government, either collectively or as individual grant agencies, can take to help recipients reduce the costs of language services without sacrificing meaningful access for LEP persons. Without these steps, certain smaller grantees may well choose not to participate in federally assisted programs, threatening the critical functions that the programs strive to provide. To that end, the DoD plans to continue to provide assistance and guidance in this important area. In addition, the DoD plans to work with representatives of research and defense-related institutions, grant organizations, administrative agencies, other Federal entities, and LEP persons to identify and share model plans, examples of best practices, and cost-saving approaches. Moreover, DoD intends to explore how language assistance measures, resources and cost-containment approaches developed with respect to its own Federally conducted programs and activities can be effectively shared or otherwise made available to recipients, particularly small businesses, small local governments, and small non-profits. An interagency working group on LEP developed a Web site,
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, provides that no person shall “on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Section 602 of Title VI, 42 U.S.C. 2000d–1, authorizes and directs Federal agencies that are empowered to extend Federal financial assistance to any program or activity “to effectuate the provisions of [section 601] * * * by issuing rules, regulations, or orders of general applicability.”
DoD regulations promulgated pursuant to section 602 forbid recipients from “utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.” 32 CFR 195.4(b)(2).
The Supreme Court, in
Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency,” 65 FR 50121 (August 16, 2000) was issued on August 11, 2000. Under that Executive Order, every Federal agency that provides financial assistance to non-Federal entities must publish guidance on how their recipients can provide meaningful access to LEP persons and thus comply with Title VI regulations forbidding funding recipients from “restrict[ing] an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program” or from “utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.”
On that same day, DOJ issued a general guidance document addressed to “Executive Agency Civil Rights Officers” setting forth general principles for agencies to apply in developing guidance documents for recipients pursuant to the Executive Order. “Enforcement of Title VI of the Civil Rights Act of 1964 National Origin Discrimination Against Persons With Limited English Proficiency,” 65 FR 50123 (August 16, 2000) (“DOJ LEP Guidance”).
Subsequently, Federal agencies raised questions regarding the requirements of the Executive Order, especially in light of the Supreme Court's decision in
This Guidance document is thus published at the direction of Executive Order 13166 and pursuant to Title VI and the Title VI regulations. It is consistent with the relevant DOJ Guidance. 67 FR 41455 (June 18, 2002) (also available at
All entities that receive Federal financial assistance from the DoD, either directly or indirectly, through a grant, cooperative agreement, contract or subcontract, and operate programs or activities or portions thereof in the United States and its territories, are covered by this Guidance. Title VI applies to all Federal financial assistance, which includes but is not limited to awards and loans of Federal funds, awards or donations of Federal land or property, details of Federal or Federally funded personnel, or any agreement, arrangement or other contract that has as one of its purposes the provision of assistance.
Examples of recipients of DoD assistance covered by this Guidance include, but are not limited to:
— State and local government agencies and any other entities that receive DoD-donated land or land that is sold at a below-market rate; and
— Organizations and institutions, such as nonprofit organizations or educational institutions, receiving grants to conduct scientific, medical, environmental or other research.
Title VI prohibits discrimination in any program or activity that receives Federal financial assistance. In most cases, when a recipient receives Federal financial assistance for a particular program or activity, all operations of the recipient are covered by Title VI, not just the part of the program that uses the Federal assistance. Thus, all parts of the recipient's operations would be covered by Title VI, even if the Federal assistance were used only by one part.
Finally, some recipients operate in jurisdictions in which English has been declared the official language. Nonetheless, these recipients continue to be subject to Federal non-discrimination requirements, including those applicable to the provision of federally assisted services to persons with limited English proficiency.
Individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English can be limited English proficient, or “LEP,” entitled to language assistance with respect to a particular type of service, benefit, or encounter.
Examples of populations likely to include LEP persons who are encountered and/or served by DoD recipients and should be considered when planning language services include, but are not limited to:
Recipients are required to take reasonable steps to ensure meaningful access to their programs and activities by LEP persons. While designed to be a flexible and fact-dependent standard, the starting point is an individualized assessment that balances the following four factors: (1) The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or activity or portion thereof; (2) the frequency with which LEP individuals come in contact with the program or activity or portion thereof; (3) the nature and importance of the program, activity, service, benefit, or information provided by the recipient to people's lives; and (4) the resources available to the grantee/recipient and costs. As indicated above, the intent of this Guidance is to suggest a balance that ensures meaningful access by LEP persons to critical services while not imposing undue burdens on small business, small local governments, or small nonprofits.
After applying the above four-factor analysis, a recipient may conclude that different language assistance measures are sufficient for the different types of encounters. For instance, some portions of a recipient's program or activity will be more important than others and/or have greater impact on or contact with LEP persons, and thus may require more in the way of language assistance. The flexibility that recipients have in addressing the needs of the LEP populations they serve does not diminish, and should not be used to minimize, the obligation that those needs be addressed. DOD recipients should apply the following four factors to the various kinds of contacts that they have with the public to assess language needs and decide what reasonable steps they should take to ensure meaningful access for LEP persons.
One factor in determining what language services recipients should provide is the number or proportion of LEP persons from a particular language group served or encountered in the eligible service population. The greater the number or proportion of these LEP persons, the more likely language services are needed. Ordinarily, persons “eligible to be served or likely to be encountered by” a recipient's program or activity are those who are served or encountered in the eligible service population. This population will be program-specific, and includes persons who are in the geographic area that has been approved by a Federal grant agency as the recipient's service area. However, where, for instance, a regional office of a nonprofit that provides support services for cancer survivors serves a large LEP population, the appropriate service area is most likely
Recipients should first examine their prior experiences with LEP encounters and determine the breadth and scope of language services that were needed. In conducting this analysis, it is important to include language minority populations that are eligible for their programs or activities but may be underserved because of existing language barriers.
Other data in addition to prior experiences should be consulted to refine or validate a recipient's prior experience, including the latest census data for the area served, data from school systems and from community organizations, and data from state and local governments.
Recipients should assess, as accurately as possible, the frequency with which they have or should have contact with an LEP individual from different language groups seeking assistance. The more frequent the contact with a particular language group, the more likely that enhanced language services in that language are needed. The steps that are reasonable for a recipient that serves an LEP person on a one-time basis will be very different than those expected from a recipient that serves LEP persons daily. It is also advisable to consider the frequency of different types of language contacts. For example, frequent contacts with Spanish-speaking people who are LEP may require certain assistance in Spanish. Less frequent contact with different language groups may suggest a different and less intensified solution. If an LEP individual accesses a program or service on a daily basis, a recipient has greater duties than if the same individual's program or activity contact is unpredictable or infrequent. But even recipients that serve LEP persons on an unpredictable or infrequent basis should use this balancing analysis to determine what to do if an LEP individual seeks services under the program in question. This plan need not be intricate. It may be as simple as being prepared to use one of the commercially-available telephonic interpretation services to obtain immediate interpreter services. In applying this standard, recipients should take care to consider whether appropriate outreach to LEP persons could increase the frequency of contact with LEP language groups.
The more important the activity, information, service, or program, or the greater the possible consequences of the contact to the LEP individuals, the more likely language services are needed. A recipient needs to determine whether denial or delay of access to services or information could have serious, economic, safety, education or even life-threatening implications for the LEP individual. For instance, the obligations of a federally assisted entity providing medical advice or services differ from those of a federally assisted program providing purely recreational activities (however, if a language barrier could result in denial or delay of access to important benefits, services, or information, or have a serious implication for a LEP person who participates in the recreational activity, the legal obligation to provide language services in that circumstance would be higher). Decisions by a Federal, state, or local entity to make an activity compulsory or required in order to maintain or receive an important benefit or service or preserve a right, such as access to medical care, appeals procedures, or compliance with rules and responsibilities, can serve as strong evidence of the program's importance.
A recipient's level of resources and the costs that would be imposed on it may have an impact on the nature of the steps it should take. Smaller recipients with more limited budgets are not expected to provide the same level of language services as larger recipients with larger budgets. In addition, “reasonable steps” may cease to be reasonable where the costs imposed substantially exceed the benefits.
Resource and cost issues, however, can often be reduced by technological advances; the sharing of language assistance materials and services among and between recipients, advocacy groups, and Federal grant agencies; and reasonable business practices. Where appropriate, training bilingual staff to act as interpreters and translators, information sharing through industry groups, telephonic and video conferencing interpretation services, pooling resources and standardizing documents to reduce translation needs, using qualified translators and interpreters to ensure that documents need not be “fixed” later and that inaccurate interpretations do not cause delay or other costs, centralizing interpreter and translator services to achieve economies of scale, or the formalized use of qualified community volunteers, for example, may help reduce costs.
Recipients should carefully explore the most cost-effective means of delivering competent and accurate language services before limiting services due to resource concerns. Large entities and those entities serving a significant number or proportion of LEP persons should ensure that their resource limitations are well-substantiated before using this factor as a reason to limit language assistance. Such recipients may find it useful to be
This four-factor analysis necessarily implicates the “mix” of LEP services required. Recipients have two main ways to provide language services: Oral interpretation either in person or via telephone interpretation service (hereinafter “interpretation”) and written translation (hereinafter “translation”). Oral interpretation can range from on-site interpreters for critical services provided to a high volume of LEP persons to access through commercially-available telephonic interpretation services. Written translation, likewise, can range from translation of an entire document to translation of a short description of the document. In some cases, language services should be made available on an expedited basis while in others the LEP individual may be referred to another office of the recipient for language assistance.
The correct mix should be based on what is both necessary and reasonable in light of the four-factor analysis. For instance, a job training center that was created three years ago after DoD donated land from a former military base serves a large Hispanic population. The job training center may need immediate oral interpreters to be available and should give serious consideration to hiring some bilingual staff if they have not done so already. By contrast, the center may be able to rely on a telephonic interpretation service to assist those LEP individuals who speak a language that is not commonly encountered by the center. Regardless of the type of language service provided, quality and accuracy of those services can be critical in order to avoid serious consequences to the LEP person and to the recipient. Recipients have substantial flexibility in determining the appropriate mix.
Academic institutions, nonprofit organizations, and other recipients of DoD funds have a long history of interacting with people with varying language backgrounds and capabilities. In fact, many DoD recipients choose not only to provide interpretation and translation services, but also to provide English-language training for LEP individuals. This approach is consistent with the purpose of Executive Order 13166. DoD's goal is to continue to encourage these efforts and to encourage the sharing of such promising practices among recipients, as well as to ensure meaningful linguistic access for LEP individuals.
Recipients have two main ways to provide language services: oral and written language services. Quality and accuracy of the language service is critical in order to avoid serious consequences to the LEP person and to the recipient.
Interpretation is the act of listening to something in one language (source language) and orally translating it into another language (target language). Where interpretation is needed and is reasonable, recipients should consider some or all of the following options for providing competent interpreters in a timely manner:
While quality and accuracy of language services is critical, the quality and accuracy of language services is nonetheless part of the appropriate mix of LEP services required. The quality and accuracy of language services provided during the medical screening of a LEP individual must be extraordinarily high, while the quality and accuracy of language services provided at a university's social program need not meet the same exacting standards.
Finally, when interpretation is needed and is reasonable, it should be provided in a timely manner. To be meaningfully effective, language assistance should be timely. While there is no single definition for “timely” applicable to all types of interactions at all times by all types of recipients, one clear guide is that the language assistance should be provided at a time and place that avoids the effective denial of the service, benefit, or right at issue or the imposition of an undue burden on or delay in important rights, benefits, or services to the LEP person. For example, when the timeliness of services is important, such as with certain activities of DOD recipients providing health, economic, educational, and safety services on DOD-donated land, a recipient would likely not be providing meaningful access if it had one bilingual staffer available one day a week to provide the service. Such conduct would likely result in delays for LEP persons that would be significantly greater than those for English proficient persons. Conversely, where access to or exercise of a service, benefit, or right is not effectively precluded by a reasonable delay, language assistance can likely be delayed for a reasonable period.
Recipients, however, should take special care to ensure that informal interpreters are appropriate in light of the circumstances and subject matter of the program, service or activity, including protection of the recipient's own administrative or enforcement interest in accurate interpretation. In many circumstances, family members (especially children), friends, or other informal interpreters are not competent to provide quality and accurate interpretations. Issues of confidentiality, privacy, or conflict of interest may also arise. LEP individuals may feel uncomfortable revealing or describing sensitive, confidential, or potentially embarrassing information to a family member, friend, or member of the local community. In addition, such informal interpreters may have a personal connection to the LEP person or an undisclosed conflict of interest. For these reasons, when oral language services are necessary, recipients should generally offer competent interpreter services free of cost to the LEP person. For DoD recipient programs and activities, this is particularly true in situations in which health, safety, economic livelihood, or access to important benefits and services are at stake, or when mistakes in interpretation or translation could have other serious consequences to the LEP person.
While issues of competency, confidentiality, and conflict of interest in the use of family members, friends, or other informal interpreters often make their use inappropriate, the use of these individuals as interpreters may be an appropriate option where proper application of the four factors would lead to a conclusion that recipient-provided services are not necessary. An example of this is a voluntary educational tour of a DoD facility offered to the public. There, the importance and nature of the activity may be relatively low and unlikely to implicate issues of confidentiality, conflict of interest, or the need for accuracy. In addition, the resources needed and costs of providing language services may be high, and the number or proportion and frequency of LEP encounters may be quite low. In such a setting, an LEP person's use of family, friends, or others to interpret may be appropriate. However, children should not be used as interpreters.
Translation is the replacement of a written text from one language (source language) into an equivalent written text in another language (target language).
Such written materials could include, for example:
Whether or not a document (or the information it solicits) is “vital” may depend upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately or in a timely manner. For instance, a flyer announcing a soccer program run by a city agency at a former military base that was donated to that agency would not generally be considered vital, whereas written information about the application process for new affordable housing provided by the agency at that same base should likely be considered vital. Where appropriate, recipients are encouraged to create a plan for consistently determining, over time and across its various activities, what documents are “vital” to the meaningful access of the LEP populations they serve.
Categorizing a document as vital or non-vital is sometimes difficult, especially in the case of outreach materials like brochures or other information on rights and services. Awareness of rights or services is an important part of “meaningful access.” Lack of awareness that a particular program, right, or service exists may effectively deny LEP individuals meaningful access. Thus, where a recipient is engaged in community outreach activities in furtherance of its activities, it should regularly assess the needs of the populations frequently encountered or affected by the program or activity to determine whether certain critical outreach materials should be translated. Community organizations may be helpful in determining what outreach materials may be most helpful to translate. In addition, the recipient should consider whether translations of outreach material may be made more effective when done in tandem with other outreach methods, including utilizing the ethnic media, schools, and religious and community organizations to spread a message.
Sometimes a document includes both vital and non-vital information. This may be the case when the document is very large. It may also be the case when the title and a phone number for obtaining more information on the contents of the document in frequently-encountered languages other than English is critical, but the document is sent out to the general public and cannot reasonably be translated into many languages and/or the language of the recipient is not known. Thus, vital information may include, for instance, the provision of information in appropriate languages other than English regarding where a LEP person might obtain an interpretation or translation of the document.
The failure to provide written translations under the circumstances outlined in paragraphs (a) and (b) does not mean there is non-compliance. Rather, they provide a common starting point for recipients to consider whether and at what point the importance of the service, benefit, or activity involved; the nature of the information sought; and the number or proportion of LEP persons served call for written translations of commonly-used forms into frequently-encountered languages other than English. Thus, these paragraphs merely provide a guide for recipients that would like greater certainty of compliance than can be provided by a fact-intensive, four-factor analysis.
When determining whether to provide translated documents or oral language services, recipients should consider the literacy rates of the LEP communities they serve. For example, certain languages (
(a) The DoD recipient provides written translations of vital documents for each eligible LEP language group that constitutes five percent or 1,000, whichever is less, of the population of persons eligible to be served or likely to be affected or encountered. Translation of other documents, if needed, can be provided orally; or
(b) If there are fewer than 50 persons in a language group that reaches the five percent trigger in (a), the recipient does not translate vital written materials but provides written notice in the primary language of the LEP language group of the right to receive competent oral interpretation of those written materials, free of cost.
These safe harbor provisions apply to the translation of written documents only. They do not affect the requirement to provide meaningful access to LEP individuals through competent oral interpreters where oral language services are needed and are reasonable. For example, even when there is only one LEP individual who is participating in a medical study, vital information should be provided orally in a language that person understands, even if it is not translated in writing.
Particularly where legal or other vital documents are being translated, competence can often be achieved by use of certified translators. Certification or accreditation may not always be possible or necessary.
Translators should understand the expected reading level of the audience and, where appropriate, have fundamental knowledge about the target language group's vocabulary and phraseology. Sometimes direct translation of materials results in a translation that is written at a much more difficult level than the English language version or has no relevant equivalent meaning. Community organizations may be able to help consider whether a document is written at an appropriate level for the audience. Also, there may be languages which do not have an appropriate direct translation of some terms. The translator should make the recipient aware of this. Recipients can then work with translators to develop a consistent and appropriate set of descriptions of these terms in that language that can be used again, when appropriate. Likewise, consistency in the words and phrases used to translate terms of art, legal, or other technical concepts helps avoid confusion by LEP individuals and may reduce costs. Creating or using already-created glossaries of commonly-used terms may be useful for LEP persons and translators and cost effective for the recipient. Providing translators with examples of previous accurate translations of similar material by the recipient, other recipients, or Federal agencies may be helpful.
While quality and accuracy of translation services is critical, the quality and accuracy of translation services is nonetheless part of the appropriate mix of LEP services required. For instance, documents that are simple and have no legal or other consequence for LEP persons who rely on them may call for translators that are less skilled than important documents with legal or other information upon which reliance has important consequences (including,
After completing the four-factor analysis and deciding what language assistance services are appropriate, a recipient should develop an implementation plan to address the identified needs of the LEP populations they serve. Recipients have considerable flexibility in developing this plan. The development and maintenance of a periodically-updated written plan on language assistance for LEP persons (“LEP plan”) for use by recipient employees serving the public will likely be the most appropriate and cost-effective means of documenting compliance and providing a framework for the provision of timely and reasonable language assistance. Moreover, such written plans would likely provide additional benefits to a recipient's managers in the areas of training, administration, planning, and budgeting. These benefits should lead most recipients to document in a written LEP plan their language assistance services, and how staff and LEP persons can access those services. Despite these benefits, certain DoD recipients, such as recipients serving very few LEP persons and recipients with very limited resources, may choose not to develop a written LEP plan. However, the absence of a written LEP plan does not obviate the underlying obligation to ensure meaningful access by LEP persons to a recipient's program or activities. Accordingly, in the event that a recipient elects not to develop a written plan, it should consider alternative ways to articulate in some other reasonable manner a plan for providing meaningful access. Entities having significant contact with LEP persons, such as schools, religious organizations, community groups, and groups working with new immigrants can be very helpful in providing important input into this planning process from the beginning.
The following five steps may be helpful in designing an LEP plan and are typically part of effective implementation plans.
The first two factors in the four-factor analysis require an assessment of the number or proportion of LEP individuals eligible to be served or encountered and the frequency of encounters. This requires recipients to identify LEP persons with whom it has contact.
One way to determine the language of communication is to use language identification cards (or “I speak cards”), which invite LEP persons to identify their language needs to staff. Such cards, for instance, might say “I speak Spanish” in both Spanish and English, “I speak Vietnamese” in both English and Vietnamese, etc. To reduce costs of compliance, the Federal government has made a set of these cards available on the Internet. The Census Bureau “I speak card” can be found and
An effective LEP plan would likely include information about the ways in which language assistance will be provided. For instance, recipients may want to include information on at least the following:
Staff should know their obligations to provide meaningful access to information and services for LEP persons. An effective LEP plan would likely include training to ensure that:
Recipients may want to include this training as part of the orientation for new employees. It is important to ensure that all employees in public contact positions (or having contact with those in a recipient's custody) are properly trained. Recipients have flexibility in deciding the manner in which the training is provided. The more frequent the contact with LEP persons, the greater the need will be for in-depth training. Staff with little or no contact with LEP persons may only have to be aware of an LEP plan. However, management staff, even if they do not interact regularly with LEP persons, should be fully aware of and understand the plan so they can reinforce its importance and ensure its implementation by staff.
Once an agency has decided, based on the four factors, that it will provide language services, it is important for the recipient to let LEP persons know that those services are available and that they are free of charge. Recipients should provide this notice in a language LEP persons will understand. Examples of notification that recipients should consider include:
Posting signs in intake areas and other entry points. When language assistance is needed to ensure meaningful access to information and services, it is important to provide notice in appropriate languages in intake areas or initial points of contact so that LEP persons can learn how to access those language services. This is particularly true in areas with high volumes of LEP persons seeking access to certain health, educational, safety, or economic services or activities run by DOD recipients. For instance, signs in intake offices could state that free language assistance is available. The signs should be translated into the most common languages encountered. They should explain how to get the language help.
Recipients should, where appropriate, have a process for determining, on an ongoing basis, whether new documents, programs, services, and activities need to be made accessible for LEP individuals, and they may want to provide notice of any changes in services to the LEP public and to employees. In addition, recipients should consider whether changes in demographics, types of services, or other needs require annual reevaluation of their LEP plan. Less frequent reevaluation may be more appropriate where demographics, services, and needs are more static. One good way to evaluate the LEP plan is to seek feedback from the community.
In their reviews, recipients may want to consider assessing changes in:
In addition to these five elements, effective plans set clear goals, management accountability, and opportunities for community input and planning throughout the process.
The goal for Title VI and Title VI regulatory enforcement is to achieve voluntary compliance. The requirement to provide meaningful access to LEP persons is enforced and implemented by DoD through the procedures identified in the Title VI regulations. These procedures include complaint investigations, compliance reviews, efforts to secure voluntary compliance, and technical assistance.
The Title VI regulations provide that DoD will investigate whenever it receives a complaint, report, or other information that alleges or indicates possible noncompliance with Title VI or its regulations. If the investigation results in a finding of compliance, DoD will inform the recipient in writing of this determination, including the basis
While all recipients must work toward building systems that will ensure access for LEP individuals, DoD acknowledges that the implementation of a comprehensive system to serve LEP individuals is a process and that a system will evolve over time as it is implemented and periodically reevaluated. As recipients take reasonable steps to provide meaningful access to federally assisted programs and activities for LEP persons, DoD will look favorably on intermediate steps recipients take that are consistent with this Guidance, and that, as part of a broader implementation plan or schedule, move their service delivery system toward providing full access to LEP persons. This does not excuse noncompliance but instead recognizes that full compliance in all areas of a recipient's activities and for all potential language minority groups may reasonably require a series of implementing actions over a period of time. However, in developing any phased implementation schedule, DoD recipients should ensure that the provision of appropriate assistance for significant LEP populations or with respect to activities having a significant impact on the health, safety, legal rights, education, economic status, or livelihood of beneficiaries is addressed first. Recipients are encouraged to document their efforts to provide LEP persons with meaningful access to federally assisted programs and activities.
Office of the Under Secretary for Personnel and Readiness, DoD.
Notice.
The Servicemembers Civil Relief Act, as codified at 50 U.S.C. App. § 531, prohibits a landlord from evicting a Service member (or the Service member's family) from a residence during a period of military service except by court order. The law as originally passed by Congress applied to dwellings with monthly rents of $2400 or less. The law requires the Department of Defense to adjust this amount annually to reflect inflation and to publish the new amount in the
Major Shawn McKelvy, Office of the Under Secretary of Defense for Personnel and Readiness, (703) 697–3387.
Department of Defense, DoD.
Notice of demonstration termination.
This notice is to advise interested parties of the termination of the Military Health System (MHS) demonstration project, under authority of Title 10, U.S. Code, Section 1092, entitled Web-Based TRICARE Assistance Program (TRIAP). The demonstration project uses existing health care support contracts (HCSC) to allow web-based behavioral health and related services including non-medical counseling and advice services to active duty service members (ADSM), their families and members and their dependents enrolled in TRICARE Reserve Select, and those eligible for the Transition Assistance Management Program (TAMP) who reside in the continental United States.
The demonstration will terminate on March 31, 2012.
TRICARE Management Activity (TMA), Health Plan Operations, 5111 Leesburg Pike, Suite 810, Falls Church, VA 22041.
For questions pertaining to this demonstration project, please contact Mr. Richard Hart at (703) 681–0047.
This demonstration was effective August 1, 2009, as referenced in the original
Monthly measures of Web-based behavioral health care access were collected and analyzed from each TRICARE region with the intent to inform Department leaders whether this type of program is a valid mechanism to improve access. Only 5109 calls were recorded in the two-year period from
The termination of TRIAP in March 2012 will not cause a void in the availability of non-medical counseling services for Service members and their families. Military OneSource (MOS) offers a robust and popular Employee Assistance Program model of non-medical counseling service to provide Service members and their families in both the continental United States and overseas with an avenue for private, non-reportable discussion of personal life issues. Issues such as family difficulties and pressures, crisis intervention, anxiety, self-esteem, loneliness, and critical life decisions can be discussed on a one-to-one basis in the context of a confidential relationship with a professional counselor. Telephonic or face-to-face counseling is available 24/7 by contacting the MOS 1–800 call center who maintains a National Network of trained, experienced, and credentialed counselors. In addition, MOS is currently pursuing integration of video technology and software capability such as Skype or iChat to their non-medical counseling service by early 2012. By terminating the TRIAP Demonstration and integrating video technology into the MOS non-medical counseling service, the Department is responsibly managing costs, streamlining and eliminating duplication of services, and making it easier for Service members and their families to find assistance through one convenient toll free number.
The TRICARE Management Activity will work with MOS to develop a communication plan and ensure a seamless transition of Web-based video counseling from TRICARE to MOS.
HQ USAFA/RR, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, HQ USAFA/RR announces the a proposed public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to: HQ USAFA/RR, 2304 Cadet Drive, Suite 2400, USAF Academy, CO 80840 or call (719) 333–8850.
The Department of Defense Form 1870, Nomination for Appointment to the United States Military Academy, Naval Academy and Air Force Academy, is used solely by legal nominating authorities who by Federal law are entitled to make appointments to the three service military academies. The nomination form allows for nominating authorities to select by checking one box as to which academy is being provided with the name of a nomination to be processed. Eligibility information concerning the nominees is information that is also included on the form. The nominating authority identifies himself/herself and must date and sign the form to make it a legally acceptable form. The form includes the three addresses of the service academies in order that the form may be submitted to the proper academy. The form is currently used, full time, by only the United States Military Academy. The United States Air Force Academy uses the form only in rare cases totally no more that 100 forms each year. The United States Naval Academy does not use the form. The reason for this is the United States Naval Academy and the United States Air Force Academy now employ an on-line nomination submissions program in lieu of the DD
Department of the Air Force, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Department of the Air Force announces a proposed public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Air Force Institute of Technology, 2950 Hobson Way, WPAFB, OH, 45433, or call 937–255–3636 x4674.
Potential respondents to this survey are individuals with in depth experience in commercial supply chain management.
Office of Admissions, HQ United States Air Force Academy, Department of the Air Force, Department of Defense.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of Admissions, HQ United States Air Force Academy announces a proposed public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to The Office of Admissions, 2304 Cadet Drive, Suite 2400, USAF Academy, CO 80840,or telephone (719) 333–7291.
The information collected on this form is required by 10 U.S.C. 9346. The
Department of the Air Force, DoD.
Notice.
In compliance with Section 3502(c)(2)(A) of the Paperwork Reduction Act of 1995, the Associate Director for Civil Aviation, Directorate of Operations and Training, Deputy Chief of Staff for Air and Space Operations, announces the a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) The accuracy of the agency's estimate of the burden of the proposed information collection; (b) ways to enhance the quality, utility, and clarity of the information to be collected; and (c) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the HQ USAF/XOO–CA, 1480 Air Force Pentagon, Washington, DC 20330–1480, or call (703) 697–1796.
The collection of information is necessary to ensure that the security and operational integrity of military airfields are maintained; to identify the aircraft operator and the aircraft to be operated; to avoid competition with the private sector by establishing the purpose for use of military airfields; and to ensure the U.S. Government is not held liable if the civil aircraft becomes involved in an accident or incident while using military airfields, facilities, and services.
Department of the Air Force, DoD.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the United States Air Force Academy, Office of Admissions, announces a proposed public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposed and associated collection instruments, please write to United States Air Force Academy, Office of Admissions, 2304 Cadet Drive, Suite 236, USAFA, CO 80840, or call United States Air Force
The information collected on this form is required by 10 U.S.C. 9346. The respondents are students who are applying for admission to the United States Air Force Academy. Each student's background and aptitude is reviewed to determine eligibility. If the Information on this form is not collected the individual cannot be considered for admittance to the Air Force Academy.
Office of Admissions, Headquarters United States Air Force Academy, Department of the Air Force, Department of Defense.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of Admissions, Headquarters United States Air Force Academy announces a proposed public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of Admissions, 2304 Cadet Drive, Suite 236, USAF Academy, CO 80840, or telephone 719–333–7291.
The information collected on this form is required by 10 U.S.C. 9346. The respondents are students who are applying for admission to the United States Air Force Academy. Each student's background and aptitude is reviewed to determine eligibility. If the information on this form is not collected, the individual cannot be considered for admittance to the Air Force Academy.
Office of the Administrative Assistant to the Secretary of the Army, (OAA–RPA), DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Department of the Army announces a proposed public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Director of Admissions, U.S. Military Academy, Official Mail & Distribution Center, ATTN: (Sue Hennen), 646 Swift Road, West Point, NY 10996–1905, or call Department of the Army Reports clearance officer at (703) 428–6440.
Title 10, U.S.C. 4346 provides requirements for admission of candidates to the U.S. Military Academy. The U.S. Military Academy (USMA) strives to motivate outstanding potential candidates to apply for admission to USMA. Once candidates are found, USMA collects information necessary to nurture them through successful completion of the application process.
Office of the Administrative Assistant to the Secretary of the Army (OAA–AAHS), DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Department of the Army announces a proposed extension of a public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Surface Deployment and Distribution Command, G5, 709 Ward Drive, Building 1990, Attn: (Jerome Colton) Scott Air Force Base, Illinois 62225, or call Department of the Army Reports clearance officer at (703) 428–6440.
The SDDC will use the survey information to improve the efficiency, quality, and timeliness of its processes, as well as to strengthen its partnership with industry. The SDDC goal is to promote this survey effort as a useful self-assessment, self-improvement, and benchmarking tool, while ensuring that data reliability is maintained.
Office of the Administrative Assistant to the Secretary of the Army, (OAA–AHS), DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Director of Admissions, U.S. Military Academy, Official Mail & Distribution Center, ATTN: (Sue Hennen), 646 Swift Road, West Point, NY 10996–1905, or call Department of the Army Reports clearance officer at (703) 428–6440.
Title 10, U.S.C. 4336 provides requirements for admission of candidates to the U.S. Military Academy. The U.S. Military Academy (USMA) strives to motivate outstanding potential candidates to apply for admission to USMA. Once candidates are found, USMA collects information necessary to nurture them through successful completion of the application process.
Department of Defense (DoD).
Notice; correction.
This document corrects the effective date for the notice published in the
Director, Defense and Acquisition Policy, Attn: Susan Pollack, 3060 Defense Pentagon, Washington, DC 20301–3060; telephone 703–697–8336.
In the notice published February 8, 2012, at 77 FR 6549, make the following correction to “
“
Department of the Navy, DoD.
Notice.
In compliance with Section 3502(c)(2)(A) of the Paperwork Reduction Act of 1995, the Chief of Naval Education and Training announces a proposed public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request additional information or to
This collection of information is used to make a determination of an applicant's academic and/or leadership potential and eligibility for an NROTC scholarship. The information collected is used to select the best-qualified candidates.
Department of the Navy, DoD.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Navy Recruiting Command announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: 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; the accuracy of the agency's estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 26, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
To request additional information or to obtain a copy of the proposal and associated collection instruments, write to Commander, Navy Recruiting Command (00SD), 5722 Integrity Drive, Millington, TN 38054–5057, or call at (901) 874–9045.
This new form replaces the Application for Commission in the U.S. Navy/U.S. Navy Reserve, and collects less information than the current form requires. The reason for implementing this new form is that even though most of the information is already gathered by the Standard Form 86, Questionnaire for National Security Positions, OMB Control Number 3206–0005, and is already in the system there are still several bits of information needed for the boards to base their selection decisions on.
Department of Education.
Comment request.
The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13).
Interested persons are invited to submit comments on or before March 16, 2012.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503, be faxed to (202) 395–5806 or emailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The OMB is particularly interested in comments which: (1) Evaluate whether the proposed collection of information is
This evaluation will focus on answering three sets of policy/research questions:
• To what extent did ARRA funds go to the intended recipients?
• Is ARRA associated with the implementation of the key reform strategies it promoted?
• What implementation supports and challenges are associated with ARRA?
The integrated evaluation will draw on existing data, including U.S. Department of Education (ED) data collections, ED ARRA program files, ARRA required reporting, and databases of achievement and other outcomes. The evaluation will also collect new information through surveys of (1) the 50 states and the District of Columbia, (2) a nationally representative sample of school districts, and (3) a nationally representative sample of schools within the sampled school districts. Surveys were conducted in spring 2011 and are planned for spring 2012.
A report will be prepared to describe the distribution of funding. A report and state tabulations will be prepared after each annual survey. The first report, based on the 2011 surveys, will focus on early ARRA implementation and strategies. The second report, based on the 2012 surveys, will expand upon strategies implemented under ARRA.
Copies of the information collection submission for OMB review may be accessed from the RegInfo.gov Web site at
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Department of Education.
Comment request.
The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13).
Interested persons are invited to submit comments on or before March 16, 2012.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street NW., Room 10222, New Executive Office Building, Washington, DC 20503, be faxed to (202) 395–5806 or emailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The OMB is particularly interested in comments which: (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, 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.
This data collection consists of two primary forms and supporting documents that are used to accomplish the grant award process each year: (1) A spreadsheet used by SEAs to submit information to identify RLIS and SRSA-eligible LEAs and to allocate funds based on the appropriate formula, and (2) an application form for SRSA-eligible LEAs to apply for funding.
Copies of the information collection submission for OMB review may be accessed from the RegInfo.gov Web site at
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13).
Interested persons are invited to submit comments on or before April 16, 2012.
Written comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Department of Education.
Comment request.
The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13).
Interested persons are invited to submit comments on or before March 16, 2012.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street NW., Room 10222, New Executive Office Building, Washington, DC 20503, be faxed to (202) 395–5806 or emailed to
Section 3506 of the Paperwork Reduction Act of
Copies of the information collection submission for OMB review may be accessed from the RegInfo.gov Web site at
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995 (Pub. L.104–13).
Interested persons are invited to submit comments on or before April 16, 2012.
Written comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13).
Interested persons are invited to submit comments on or before April 16, 2012.
Written comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
The U.S. Department of Education (ED) has invited each SEA to request flexibility on behalf of itself, its LEAs, and schools, in order to better focus on improving student academic achievement and increasing the quality of instruction (ESEA flexibility). As of January 31, 2012, 40 SEAs have indicated that they plan to request ESEA flexibility. Of particular relevance to this collection is ED's expectation that, overall, ESEA flexibility will result in less burden on SEAs, LEAs, and schools compared with current law absent this flexibility. The burden estimate for this collection is therefore substantially lower than that of the currently approved collection.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Office of Elementary and Secondary Education, Department of Education.
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2012.
20 U.S.C. 6534.
The Department is not bound by any estimates in this notice.
1.
For the purposes of this program, the Bureau of Indian Education in the U.S. Department of the Interior is treated as an SEA.
2. a.
b.
3.
1.
To obtain an application package from the U.S. Department of Education use the following address: Francisco Ramirez, U.S. Department of Education, 400 Maryland Avenue SW., room 3E224, Washington, DC 20202–6200. Telephone: (202) 260–1541 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the program contact person listed in this section.
2.
3.
Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your CCR registration on an annual basis. This may take three or more business days to complete.
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
a.
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the AP Test Fee program at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (a Department-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Francisco Ramirez, U.S. Department of Education, 400 Maryland Avenue SW., room 3E224, Washington, DC 20202–6200. Fax: (202) 260–8969.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b. Submission of Paper Applications by Mail.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.330B), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202–4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.330B), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202–4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
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For FY 2012, the Department expects to award $19,962,200 in new grants under this program. Based on the anticipated number of applicants and other information available to the Department, we expect this amount to be sufficient to pay up to $38 per advanced placement exam for up to three exams per student.
Also, in determining whether to approve an application for a new award (including the amount of the award) from an applicant with a current grant under this program, the Department will consider the amount of any carryover funds under the existing grant and the applicant's use of funds under previous AP Test Fee grant awards.
We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
Francisco Ramirez, U.S. Department of Education, 400 Maryland Avenue SW., room 3E224, Washington, DC 20202–6200. Telephone: (202) 260–1541 or by email:
If you use a TDD or a TTY, call the FRS, toll free, at 1–800–877–8339.
You may also access documents of the Department published in the
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Notice and request for comments.
The Department of Energy (DOE) invites public comment on a proposed collection of information for a National Evaluation of the Energy Efficiency and Conservation Block Grant Program (EECBG) that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. 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 of the proposed collection of information, including the validity of the methodology and assumptions used; (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, including the use of automated collection techniques or other forms of information technology. Information about the outcomes of the program, including energy and cost savings, the net number of jobs created or retained, and gross reductions in carbon emissions, is needed for a comprehensive evaluation of the program.
Comments regarding this proposed information collection must be received on or before April 16, 2012. If you anticipate difficulty in submitting comments within that period, contact the person listed in
Written comments may be sent to Colleen Rizy, Environmental Sciences Division, Oak Ridge National Laboratory, P.O. Box 2008, MS–6036, Oak Ridge, TN 37831–6036;
Requests for additional information should be directed to: Colleen Rizy, Environmental Sciences Division, Oak Ridge National Laboratory, P.O. Box 2008, MS–6036, Oak Ridge, TN 37831–6036;
This information collection request contains:
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The EECBG Program, authorized in Title V, Subtitle E of the Energy Independence and Security Act (EISA)
The scope of the National Evaluation of EECBG involves a combination of careful reviews of grant status reports and applications (“engineering desk reviews”), conversations with DOE project officers, and in-depth interviews with grant managers to assemble critical data for answering the three questions of interest:
1. What is the total magnitude of energy and cost savings, and other key outcomes, such as gross carbon emissions reduction and the net number of jobs created or retained, achieved in Broad Program Areas that cumulatively account for approximately 80 percent of total Formula Grant expenditures in the 2009–2011 program years?
2. What is the magnitude of outcomes achieved by each of the most heavily-funded Broad Program Areas within the EECBG portfolio?
3. What are the key factors influencing the magnitude of EECBG outcomes?
These questions will be answered by evaluating a sample of 350 grant activity examples from a pool of direct grants and State sub-grants, all issued as part of the EECBG program.
The DOE Formula grants are well-defined and have been further scrutinized by Oak Ridge National Laboratory (ORNL)/DOE and its contractors for categorization into Broad Program Areas and activities. The evaluation team will complete the process of counting and categorizing the State sub-grants. From these combined lists of grants, sorted by Broad Program Area, sub-area, and activity, and from a set of criteria developed by ORNL/DOE and its contractors, a sampling approach will be applied to select 350 grants for study. That random sample of projects will be taken from the six Broad Program Areas that, in combination, account for over 80 percent of total EECBG Formula Grant expenditures, which will allow valid inferences to be drawn for each Broad Program Area examined.
Data collection will begin with a combination of careful reviews of DOE program databases, grant status reports and applications (“engineering desk reviews”), and conversations with DOE project officers and Regional and State Coordinators. After this extensive preliminary data collection effort, interviews will be conducted with grant program managers and grant project managers for each sample point. The two survey instruments proposed are:
1. Grant Activity-Level Contact Survey: Verifies activities performed, measures installed, measure level data, and other relevant project information necessary to calculate program impacts and other metrics.
There will be 2 versions of this survey instrument: One for grant activities targeted to residential dwellings, and one for non-residential buildings.
2. Performance Indicators Survey: Collects information regarding operational success factors to be combined with grant data and secondary data on economic and other external factors for determining what conditions and elements are necessary for a successful project.
Together, these surveys will involve 700 respondents and entail a total burden of 642 hours. This calculation is based on the assumption that the telephone surveys used in this study will require an average of 55 minutes, depending on the individual survey instrument.
This evaluation approach will not include any data collection from individual service recipients to estimate savings or outcomes. This study will use data from the above-mentioned interviews plus additional information that can be obtained from program records and secondary sources, as well as engineering-based analytical methods, to produce energy savings and outcome estimates.
The above-described data collection instruments will be supplemented by additional records research and database review activities provided by the Grant Program Managers and Local Grant Activity Managers. These general recordkeeping activities will require an estimated 487 hours. Combining the burden hours associated with telephone surveys (642 hours) with the burden hours associated with general records review (487 hours) produces a total estimated burden of 1,129 hours.
Two key steps are being taken to avoid duplicating the efforts of any concurrent evaluations of EECBG activities: (1) Identifying results from any EECBG grant evaluation efforts taking place at the State level; and (2) coordinating with the Better Buildings Program evaluation concerning any data collection already taking place during the same time period that addresses EECBG grant activities.
The sample selection of Broad Program Areas and specific programmatic activities within each Broad Program Area is scheduled to be completed by June 2012. Data collection and calculation of outcomes are scheduled to be completed by October 2012.
The detailed study design and work plan for the EECBG evaluation has been available for public review since January 2012 at
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Title V, Subtitle E of the Energy Independence and Security Act of 2007, codified at 42 U.S.C. 17151–17158.
The following notice of meeting is published pursuant to section 3(a) of the government in the Sunshine Act (Pub. L. 94–409), 5 U.S.C. 552b:
Federal Energy Regulatory Commission.
February 16, 2012, 10 a.m.
Room 2C, 888 First Street NE., Washington, DC 20426.
Open.
Agenda.
* Note—Items listed on the agenda may be deleted without further notice.
Kimberly D. Bose, Secretary, Telephone (202) 502–8400.
For a recorded message listing items struck from or added to the meeting, call (202) 502–8627.
This is a list of matters to be considered by the Commission. It does not include a listing of all documents relevant to the items on the agenda. All public documents, however, may be viewed on line at the Commission's Web site at
A free webcast of this event is available through
Immediately following the conclusion of the Commission Meeting, a press briefing will be held in the Commission Meeting Room. Members of the public may view this briefing in the designated overflow room. This statement is intended to notify the public that the press briefings that follow Commission meetings may now be viewed remotely at Commission headquarters, but will not be telecast through the Capitol Connection service.
Environmental Protection Agency (EPA).
Notice of Charter Renewal.
The Charter for the Environmental Protection Agency's Farm, Ranch, and Rural Communities Advisory Committee (FRRCC) will be renewed for an additional two-year period, as a necessary committee which is in the public interest, in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App.2. The purpose of the FRRCC is to provide advice to the Administrator of EPA on
Environmental Protection Agency.
Notice of Final NPDES General Permit.
The Director of the Water Quality Protection Division, EPA Region 6 today announces issuance of the final National Pollutant Discharge Elimination System (NPDES) general permit for the Territorial Seas of Texas (No. TXG260000) for discharges from existing and new dischargers and New Sources in the Offshore Subcategory of the Oil and Gas Extraction Point Source Category as authorized by section 402 of the Clean Water Act, 33 U.S.C. 1342 (CWA). The permit supersedes the previous general permit (TXG260000) which expired on November 4, 2010. This permit renewal authorizes discharges from exploration, development, and production facilities located in and discharging to the territorial seas off Texas.
EPA proposed the draft permit in the
Ms. Diane Smith, Region 6, U.S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202–2733. Telephone: (214) 665–2145.
This permit was issued and effective on February 8, 2012, and expires February 7, 2017. In accordance with 40 CFR part 23, this permit shall be considered issued for the purpose of judicial review on February 29, 2012. Under section 509(b) of the CWA, judicial review of this general permit can be held by filing a petition for review in the United States Court of Appeals within 120 days after the permit is considered issued for judicial review. Under section 509(b)(2) of the CWA, the requirements in this permit may not be challenged later in civil or criminal proceedings to enforce these requirements. In addition, this permit may not be challenged in other agency proceedings. Deadlines for submittal of notices of intent are provided in Part I.A.2 of the permit.
EPA intends to use the reissued permit to regulate discharges from oil and gas extraction facilities located in the territorial seas off Texas under the CWA. To obtain discharge authorization, operators of such facilities must submit a new Notice of Intent (NOI). To determine whether your facility, company, business, organization, etc. is regulated by this action, you should carefully examine the applicability criteria in Part I, Section A.1 of the permit. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the
This reissued permit requires reporting and application requirements for new facilities to comply with cooling water intake structure requirements and therefore it requires more reporting burdens for new facilities from those under the previous general permit. Since this permit is very similar in reporting and application requirements in discharges which are required to be monitored as the Western Gulf of Mexico Outer Continental Shelf (OCS) general permit (GMG290000) which also has cooling water intake structure requirements, the paperwork burdens are expected to be nearly identical. EPA estimated it would take an affected facility three hours to prepare the request for coverage and 3 hours per month to prepare discharge monitoring reports. It is estimated that the time required to prepare the request for coverage and discharge monitoring reports for this permit will be the same. A new facility may need more time to prepare information for cooling water intake structure requirements. This permit requires electronic reporting for discharge monitoring reports, and it will save some reporting time.
However, the alternative to obtaining authorization to discharge under this general permit is to obtain an individual permit. The burden of obtaining authorization to discharge under the general permit is expected to be significantly less than the burden of obtaining an individual permit.
Clean Water Act, 33 U.S.C. 1251
Environmental Protection Agency (EPA).
Notice.
There will be a 4-day meeting of the Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel (FIFRA SAP) to consider and review scientific issues concerning chlorpyrifos health effects.
The meeting will be held on April 10–13, 2012, from approximately 9 a.m. to 5:30 p.m.
The meeting will be held at the Environmental Protection Agency, Conference Center, Lobby Level, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA 22202.
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Fred Jenkins, Jr., DFO, Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (202) 564–3327; fax number: (202) 564–8382; email address:
This action is directed to the public in general. This action may, however, be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA), FIFRA, and the Food Quality Protection Act of 1996 (FQPA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the DFO listed under
When submitting comments, remember to:
1. Identify the document by docket ID number and other identifying information (subject heading,
2. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
You may participate in this meeting by following the instructions in this unit. To ensure proper receipt by EPA, it is imperative that you identify docket ID number EPA–HQ–OPP–2012–0040 in the subject line on the first page of your request.
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The selection of scientists to serve on FIFRA SAP is based on the function of the panel and the expertise needed to address the Agency's charge to the panel. No interested scientists shall be ineligible to serve by reason of their membership on any other advisory committee to a Federal department or agency or their employment by a Federal department or agency except the EPA. Other factors considered during the selection process include availability of the potential panel member to fully participate in the panel's reviews, absence of any conflicts of interest or appearance of lack of impartiality, independence with respect to the matters under review, and lack of bias. Although financial conflicts of interest, the appearance of lack of impartiality, lack of independence, and bias may result in disqualification, the absence of such concerns does not assure that a candidate will be selected to serve on FIFRA SAP. Numerous qualified candidates are identified for each panel. Therefore, selection decisions involve carefully weighing a number of factors including the candidates' areas of expertise and professional qualifications and achieving an overall balance of different scientific perspectives on the panel. In order to have the collective breadth of experience needed to address the Agency's charge for this meeting, the Agency anticipates selecting approximately 10 ad hoc scientists.
FIFRA SAP members are subject to the provisions of 5 CFR part 2634, Executive Branch Financial Disclosure, as supplemented by the EPA in 5 CFR part 6401. In anticipation of this requirement, prospective candidates for service on the FIFRA SAP will be asked to submit confidential financial information which shall fully disclose, among other financial interests, the candidate's employment, stocks and bonds, and where applicable, sources of research support. The EPA will evaluate the candidates financial disclosure form to assess whether there are financial conflicts of interest, appearance of a lack of impartiality or any prior involvement with the development of the documents under consideration (including previous scientific peer review) before the candidate is considered further for service on FIFRA SAP. Those who are selected from the pool of prospective candidates will be asked to attend the public meetings and to participate in the discussion of key issues and assumptions at these meetings. In addition, they will be asked to review and to help finalize the meeting minutes. The list of FIFRA SAP members participating at this meeting will be posted on the FIFRA SAP Web site at
FIFRA SAP serves as the primary scientific peer review mechanism of EPA's Office of Chemical Safety and Pollution Prevention (OCSPP) and is structured to provide scientific advice, information and recommendations to the EPA Administrator on pesticides and pesticide-related issues as to the impact of regulatory actions on health and the environment. FIFRA SAP is a Federal advisory committee established in 1975 under FIFRA that operates in accordance with requirements of the Federal Advisory Committee Act. FIFRA SAP is composed of a permanent panel consisting of seven members who are appointed by the EPA Administrator from nominees provided by the National Institutes of Health and the National Science Foundation. FIFRA, as amended by FQPA, established a Science Review Board consisting of at least 60 scientists who are available to the SAP on an ad hoc basis to assist in reviews conducted by the SAP. As a peer review mechanism, FIFRA SAP provides comments, evaluations and recommendations to improve the effectiveness and quality of analyses made by Agency scientists. Members of FIFRA SAP are scientists who have sufficient professional qualifications, including training and experience, to provide expert advice and recommendation to the Agency.
Chlorpyrifos (0,0-diethyl-0-3,5,6-trichloro-2-pyridyl phosphorothioate) is a broad-spectrum, chlorinated organophosphate (OP) insecticide. Like other OPs, chlorpyrifos binds to and phosphorylates the enzyme acetylcholinesterase (AChE) in both the central (brain) and peripheral nervous systems. This can lead to accumulation of acetylcholine and, ultimately, at sufficiently high doses, to clinical signs of toxicity. In 2011, the Agency released a preliminary human health risk assessment for chlorpyrifos. The focus of this assessment was on the cholinesterase (ChE) inhibiting potential of chlorpyrifos. Consistent with this focus, EPA evaluated the extensive database of ChE data for multiple lifestages and selected points of departure (PoDs) based on consideration of all quality and reliable data. There is, however, a growing body of literature with laboratory animals (rats and mice) indicating that gestational and/or early postnatal exposure to chlorpyrifos may cause persistent effects into adulthood. The results of both
In 2008, the FIFRA Scientific Advisory Panel (SAP) reviewed a draft science issue paper on the human health effects of chlorpyrifos which provided a preliminary review of the scientific literature on experimental toxicology and epidemiology studies available at that time. In 2010, the Agency developed a draft “Framework for Incorporating Human Epidemiologic & Incident Data in Health Risk Assessment” which provides the conceptual foundation for evaluating multiple lines of scientific evidence in the context of the understanding of the adverse outcome pathway (or mode of action). This draft framework uses modified Bradford Hill Criteria to evaluate the sufficiency of evidence to establish key events within a mode of action(s) and explicitly considers such concepts as strength, consistency, dose response, temporal concordance and biological plausibility. Since the 2008 SAP on chlorpyrifos, the Agency has performed further analyses on the existing and new epidemiology results in mothers and children, available biomonitoring data, and experimental toxicology studies evaluating proposed adverse outcome pathways in the context of human health risk assessment. Specifically, the Agency is evaluating available literature on the potential for chlorpyrifos to cause long term adverse effects from early life exposure,
EPA's background paper, related supporting materials, charge/questions to FIFRA SAP, FIFRA SAP composition (i.e., members and ad hoc members for this meeting), and the meeting agenda will be available by approximately mid-March. In addition, the Agency may provide additional background documents as the materials become available. You may obtain electronic copies of these documents, and certain other related documents that might be available electronically, at
FIFRA SAP will prepare meeting minutes summarizing its recommendations to the Agency approximately 90 days after the meeting. The meeting minutes will be posted on the FIFRA SAP Web site or may be obtained from the OPP Regulatory Public Docket at
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Cancellation and Rescheduling of National Advisory Council for Environmental Policy and Technology (NACEPT) Committee Meeting.
EPA announced in the
NACEPT has cancelled the two-day public meeting scheduled for February 13, 2012, from February 14, 2012. NACEPT will now hold the two-day public meeting on Monday, March 26, 2012, from 9 a.m. to 5:30 p.m. (EST) and Tuesday, March 27, 2012 from 8:30 a.m. to 2 p.m. (EST).
The meeting will be held at the EPA East Building Room 1153, 1201 Constitution Avenue NW., Washington, DC 20004.
Mark Joyce, Acting Designated Federal Officer,
Requests to make oral comments or to provide written comments for the March 26–27, 2012, NACEPT meeting should be sent to Eugene Green at
Environmental Protection Agency (EPA).
Notice.
EPA has granted emergency exemptions under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for use of pesticides as listed in this notice. The exemptions were granted during the period October 1, 2011 to December 31, 2011 to control unforeseen pest outbreaks.
See each emergency exemption for the name of a contact person. The following information applies to all contact persons: Team Leader, Emergency Response Team, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 305–6027.
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed at the end of the emergency exemption of interest.
EPA has established a docket for this action under docket identification (ID) number EPA–HQ–OPP–2012–0019. Publicly available docket materials are available either electronically at
EPA has granted emergency exemptions to the following State and Federal agencies. The emergency exemptions may take the following form: Crisis, public health, quarantine, or specific.
Under FIFRA section 18, EPA can authorize the use of a pesticide when emergency conditions exist. Authorizations (commonly called emergency exemptions) are granted to State and Federal agencies and are of four types:
1. A “specific exemption” authorizes use of a pesticide against specific pests on a limited acreage in a particular State. Most emergency exemptions are specific exemptions.
2. “Quarantine” and “public health” exemptions are emergency exemptions issued for quarantine or public health purposes. These are rarely requested.
3. A “crisis exemption” is initiated by a State or Federal agency (and is confirmed by EPA) when there is insufficient time to request and obtain EPA permission for use of a pesticide in an emergency.
EPA may deny an emergency exemption: If the State or Federal agency cannot demonstrate that an emergency exists, if the use poses unacceptable risks to the environment, or if EPA cannot reach a conclusion that the proposed pesticide use is likely to result in “a reasonable certainty of no harm” to human health, including exposure of residues of the pesticide to infants and children.
If the emergency use of the pesticide on a food or feed commodity would result in pesticide chemical residues, EPA establishes a time-limited tolerance meeting the “reasonable certainty of no harm standard” of the Federal Food, Drug, and Cosmetic Act (FFDCA).
In this document: EPA identifies the State or Federal agency granted the exemption, the type of exemption, the pesticide authorized and the pests, the crop or use for which authorized, and the duration of the exemption.
EPA authorized the use of pyraclostrobin on Belgian endive to control sclerotinia (
EPA authorized the use of hop beta acids in beehives to control varroa mite; December 22, 2011. Effective date; January 1, 2012 to December 31, 2012.
EPA authorized the use of spirotetramat on onions, dry bulb, to control thrips; December 14, 2011 to September 30, 2012.
EPA authorized the use of hop beta acids in beehives to control varroa mite; December 22, 2011. Effective date; January 1, 2012 to December 31, 2012.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of applications to register new uses for pesticide products containing currently registered active ingredients, pursuant to the provisions of section 3(c) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended. EPA is publishing this Notice of such applications, pursuant to section 3(c)(4) of FIFRA.
Comments must be received on or before March 16, 2012.
Submit your comments, identified by the docket identification (ID) number specified below, by one of the following methods:
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A contact person is listed at the end of each registration application summary and may be contacted by telephone or email. The mailing address for each contact person listed is: Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001, Antimicrobials Division (7510P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–00001 or Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001.
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System
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i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA received applications as follows to register pesticide products containing currently registered active ingredients pursuant to the provisions of section 3(c) of FIFRA, and is publishing this Notice of such applications pursuant to section 3(c)(4) of FIFRA. Notice of receipt of these applications does not imply a decision by the Agency on the applications.
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Environmental protection, Pesticides and pest.
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's order for the cancellations, voluntarily requested by the registrants and accepted by the Agency, of the products listed in Table 1 of Unit II., pursuant to section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended. This cancellation order follows a November 23, 2011,
The cancellations are effective February 15, 2012.
Jolene Trujillo, Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 347–0103; fax number: (703) 308–8090; email address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
EPA has established a docket for this action under docket identification (ID) number EPA–HQ–OPP–2009–1017. Publicly available docket materials are available either in the electronic docket at
This notice announces the cancellation, as requested by registrants, of 28 products registered under FIFRA section 3. These registrations are listed in sequence by registration number in Table 1 of this unit.
Table 2 of this unit includes the names and addresses of record for all registrants of the products in Table 1 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed in Table 1 of this unit.
During the public comment period provided, EPA received no comments in response to the November 23, 2011,
Pursuant to FIFRA section 6(f), EPA hereby approves the requested cancellations of the registrations identified in Table 1 of Unit II. Accordingly, the Agency hereby orders that the product registrations identified in Table 1 of Unit II. are canceled. The effective date of the cancellations that are the subject of this notice is February 15, 2012. Any distribution, sale, or use of existing stocks of the products identified in Table 1 of Unit II. in a manner inconsistent with any of the provisions for disposition of existing stocks set forth in Unit VI. will be a violation of FIFRA.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Existing stocks are those stocks of registered pesticide products which are currently in the United States and which were packaged, labeled, and released for shipment prior to the effective date of the cancellation action. The existing stocks provisions for the products subject to this order are as follows:
EPA anticipates allowing registrants to sell and distribute existing stocks of these products for 1 year after publication of the Cancellation Order in the
The cancellation of these products will be effective December 15, 2014. Thereafter, registrants will be prohibited from selling or distributing these two pesticide products, except for export consistent with FIFRA section 17 or for proper disposal. Persons other than registrants will generally be allowed to sell, distribute, or use existing stocks until such stocks are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the canceled products.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
Notice is hereby given that the State of Illinois submitted a primacy application for its approved Public Water System Supervision Program. Illinois is applying its Long Term 2 Enhanced Surface Water Treatment Regulations to all Illinois water systems that use surface water and ground water under the influence of surface water as a source, thereby satisfying the requirements of the Long-Term 2 Enhanced Surface Water Treatment Rule. Illinois is also applying its Stage 2 Disinfectants and Disinfection By-products Regulations to all Illinois community and noncommunity water systems that add and/or deliver water that is treated with a primary or residual disinfectant other than ultraviolet light, thereby satisfying the requirements of the Stage 2 Disinfectants and Disinfection Byproducts Rule.
EPA has determined that the state regulations and procedures submitted by the State to EPA for review are no less stringent than the corresponding federal regulations. Therefore, EPA intends to award primacy to Illinois for Long-Term 2 Enhanced Surface Water Treatment and Stage 2 Disinfectants and Disinfection By-product Rules implementation. Any interested party may request a public hearing. A request for a public hearing must be submitted by March 16, 2012, to the Regional Administrator at the EPA Region 5 address shown below. The Regional Administrator may deny frivolous or insubstantial requests for a hearing. However, if a substantial request for a public hearing is made by March 16, 2012; EPA Region 5 will hold a public hearing. If EPA Region 5 does not receive a timely and appropriate request for a hearing and the Regional Administrator does not elect to hold a hearing on her own motion, this determination shall become final and effective on March 16, 2012. Any request for a public hearing shall include the following information: The name, address, and telephone number of the individual, organization, or other entity requesting a hearing; a brief statement of the requesting person's interest in the Regional Administrator's determination and a brief statement of the information that the requesting person intends to submit at such hearing; and the signature of the individual making the request, or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.
All documents relating to this determination are available for inspection at the following offices: Illinois Pollution Control Board at the James R. Thompson Center, 100 W. Randolph, Suite 11–500, Chicago, Illinois 60601, and the United States Environmental Protection Agency, Region 5, Ground Water and Drinking Water Branch (WG–15J), 77 West Jackson Boulevard, Chicago, Illinois 60604.
Janet Kuefler, EPA Region 5, Ground Water and Drinking Water Branch, at the address given above, by telephone at (312) 582–5814, or at
Section 1413 of the Safe Drinking Water Act, as amended, 42 U.S.C. 300g–2 (1996), and 40 CFR part 142 of the National Primary Drinking Water Regulations.
Environmental Protection Agency (EPA).
Notice of availability.
This notice announces the broadly applicable alternative test method approval decisions the EPA has made under and in support of New Source Performance Standards (NSPS) and the National Emission Standards for Hazardous Air Pollutants (NESHAP) under the Clean Air Act (CAA) in 2011.
An electronic copy of each alternative test method approval document is available on the EPA's Web site at
This notice will be of interest to entities regulated under 40 Code of Federal Regulations(CFR) parts 59, 60, 61, and 63, state, local, and tribal agencies, and the EPA Regional Offices responsible for implementation and enforcement of regulations under 40 CFR parts 60, 61, and 63.
You may access copies of the broadly applicable alternative test method approval documents from the EPA's Web site at
Broadly applicable alternative test method approval decisions made by the EPA in 2011 under the National Volatile Organic Compound Emission Standards for Consumer and Commercial Products, 40 CFR part 59, NSPS, 40 CFR part 60, and NESHAP, 40 CFR parts 61 and 63 are identified in this notice (see Table 1). Source owners and operators may voluntarily use these broadly applicable alternative test methods subject to their specific applicability. Use of these broadly applicable alternative test methods does not change the applicable emission standards.
As explained in a previous
It is important to clarify that alternative methods are not mandatory but permissive. Sources are not required to employ such a method but may choose to do so in appropriate cases. Source owners or operators should review the specific broadly applicable alternative method approval decision on the EPA's Web site at
The criteria for approval and procedures for submission and review of broadly applicable alternative test methods are outlined at 72 FR 4257 (January 30, 2007). We will continue to announce approvals for broadly applicable alternative test methods on the EPA's Web site at
This notice comprises a summary of ten such approval documents added to our Technology Transfer Network from January 1, 2011, through December 31, 2011. The alternative method decision letter/memo number, the reference method affected, sources allowed to use this alternative, and the modification or alternative method allowed are summarized in Table 1 of this notice. Please refer to the complete copies of these approval documents available from the EPA's Web site at
Source owners or operators should review the specific broadly applicable alternative method approval letter on the EPA's Web site at
Environmental Protection Agency.
Notice of request for nominations.
The U.S. Environmental Protection Agency (EPA) is inviting nominations from a diverse range of qualified candidates to be considered for appointment to fill vacancies on the National Advisory Committee (NAC) and the Governmental Advisory Committee (GAC) to the U.S. Representative to the Commission for Environmental Cooperation (CEC). Vacancies on these two committees are expected to be selected by March 31, 2012. We encourage nominations to be submitted as soon as possible. Additional sources may be utilized in the solicitation of nominees.
The National Advisory Committee and the Governmental Advisory Committee advise the EPA Administrator in her capacity as the U.S. Representative to the CEC Council. The Committees are authorized under Articles 17 and 18 of the North American Agreement on Environmental Cooperation (NAAEC), the North American Free Trade Agreement (NAFTA) Implementation Act, Public Law 103–182, and as directed by Executive Order 12915, entitled “Federal Implementation of the North American Agreement on Environmental Cooperation.” The Committees are responsible for providing advice to the United States Representative on a wide range of strategic, scientific, technological, regulatory and economic issues related to implementation and further elaboration of the NAAEC. The National Advisory Committee consists of 13 representatives from environmental non-profit groups, business and industry, and educational institutions. The Governmental Advisory Committee consists of 12 representatives from state, local, and tribal governments. Members are appointed by the EPA Administrator for a two-year term. The committees usually meet 3 times per year and the average workload for committee members is approximately 10 to 15 hours per month. Members serve on the committees in a voluntary capacity. Although we are unable to provide compensation or an honorarium for your services, you may receive travel and per diem allowances, according to applicable federal travel regulations. EPA is seeking nominations from all sectors, including academia, industry, non-governmental organizations, and state, local and tribal governments. Nominees will be considered according
• Professional knowledge of the subjects examined by the committees, including trade and environment issues, the NAFTA, the NAAEC, and the CEC.
• Represent a sector or group involved in trilateral environmental policy issues.
• Senior-level experience in the sectors represented on both committees.
• A demonstrated ability to work in a consensus building process with a wide range of representatives from diverse constituencies.
Nominations must include a resume and a short biography describing the professional and educational qualifications of the nominee, as well as the nominee's current business address, email address, and daytime telephone number. Interested candidates may self-nominate. Anyone interested in being considered for nomination is encouraged to submit their application materials as soon as possible. To help the Agency in evaluating the effectiveness of its outreach efforts, please tell us how you learned of this opportunity. Please be aware that EPA's policy is that, unless otherwise prescribed by statute, members generally are appointed for two-year terms.
Oscar Carrillo, Designated Federal Officer, Office of Federal Advisory Committee Management and Outreach, U.S. Environmental Protection Agency (1601–M), 1200 Pennsylvania Avenue NW., Washington, DC 20460. You may also email nominations with subject line COMMITTEE RESUME 2012 to
Oscar Carrillo, Designated Federal Officer, U.S. Environmental Protection Agency (1601–M), Washington, DC 20460; telephone (202) 564–0347; fax (202) 564–8129; email
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). 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; (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; and (e) ways to further reduce the information burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB 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 OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before April 16, 2012. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA comments to Nicholas A. Fraser, Office of Management and Budget, via fax at 202–395–5167 or via Internet at
Judith B. Herman, Office of Managing Director, (202) 418–0214.
Pursuant to 47 CFR 101.17, all 38.6–40.0 GHz band licensees must demonstrate substantial service at the time of license renewal. A licensee's substantial service showing should include but not be limited to, the following information for each channel for which they hold a license, in each Economic Area (EA) or portion of EA covered by their license, in order to qualify for renewal of that license. The information provided will be judged by the Commission to determine whether the licensee is providing service which rises to the level of “substantial”:
(1) A description of the 38.6–40.0 GHz band licensee's current service in terms of geographic coverage;
(2) A description of the 38.6–40.0 GHz band licensee's current service in terms of population served, as well as any additional service provided during the license term; and
(3) A description of the 38.6–40.0 GHz band licensee's investments in its
Any 38.6–40.0 GHz band licensees adjudged not to be providing substantial service will not have their license(s) renewed.
The requirement to demonstrate substantial service happens once every 10 years. Every licensee in this band will have to make a showing in the next three years because of when the licenses were originally issued and our decision to extend the deadline for some licensees. However, the number of respondents that will need to comply with this substantial service requirement of the 47 CFR 101.17 within the period covered by this submission is far less than the Commission originally sought and received OMB approval in 2006.
Without this information the Commission would not be able to carry out its statutory responsibilities.
Federal Communications Commission.
Notice.
The following applicants filed AM or FM proposals to change the community of license: BBC BROADCASTING, INC, Station KPRI, Facility ID 21416, BP–20090226AAF, From FERNDALE, WA, To POINT ROBERTS, WA; CUMULUS LICENSING LLC, Station WYOK, Facility ID 8680, BPH–20120131AJS, From ATMORE, AL, To SARALAND, FL; GRACE BAPTIST CHURCH OF ORANGE BURG, Station NEW, Facility ID 171479, BMPED–20120131ALI, From RIDGEVILLE, SC, To ST. GEORGE, SC; RADIO LICENSE HOLDING II, LLC, Station WYAY, Facility ID 48727, BPH–20120131AHR, From GAINESVILLE, GA, To SANDING SPRINGS, GA.
Comments may be filed through April 16, 2012.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Tung Bui, 202–418–2700.
The full text of these applications is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street SW., Washington, DC 20554 or electronically via the Media Bureau's Consolidated Data Base System,
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-ScottRodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination—on the dates indicated—of the waiting period provided by law and the premerger notification rules. The listing for each transaction includes the transaction number and the parties to the transaction. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
By Direction of the Commission.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “Use of Deliberative Methods to Enhance Public Engagement in the Agency for Healthcare Research and Quality's (AHRQ's) Effective Healthcare (EHC) Program and Comparative Effectiveness Research (CER) Enterprise.” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501–3521, AHRQ invites the public to comment on this proposed information collection.
This proposed information collection was previously published in the
Comments on this notice must be received by March 16, 2012.
Written comments should be submitted to: AHRQ's OMB Desk Officer by fax at (202) 395–6974 (attention: AHRQ's desk officer) or by email at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427–1477, or by email at
With this project, AHRQ seeks evidence on the feasibility and usefulness of public deliberation as an approach to obtaining public input on questions related to the conduct and use of comparative effectiveness research (CER). Although stakeholder engagement has been central to the Effective Healthcare (EHC) program to date, public input has not traditionally been used to inform and guide broad strategies related to the use of evidence to inform decisions. This study would provide a research base to address this gap. This project closely ties to AHRQ's efforts to improve the rigor of methods, as it will generate methodological evidence through a randomized controlled experiment comparing five distinct methods of public deliberation to find the most effective approaches for involving the general public, including members of AHRQ's priority populations, in questions related to the research enterprise.
Public deliberation is a strategy for engaging lay people in informing decisions when these decisions require consideration of values and ethics in addition to scientific evidence. It includes three core elements:
(1) Convening a group of people (either in person or via online technologies to connect people in remote locations),
(2) Educating the participants on the relevant issue(s) through dissemination of educational materials and/or the use of content experts, and
(3) Having the participants engage in a reason-based discussion, or deliberation, on all sides of the issue(s).
AHRQ wishes to study the effectiveness of public deliberation, because it offers the opportunity to obtain public input on complex topics in an environment that encourages participants to educate themselves about the topic and discuss it in a thoughtful, respectful manner. Information about the topic is intentionally neutral and respectful of the full range of underlying values and experience with health care issues in the population. This approach is designed to improve upon the sometimes superficial or “top of mind” responses that are often provided by public opinion surveys. AHRQ views public deliberation as a potential source of higher quality public input on issues fundamental to the Agency's mission, such as the best and most effective ways to use comparative effectiveness research, than has heretofore been available.
Several distinct deliberative methods have been developed and used previously. They share the three core elements of public deliberation, but differ on key features of implementation such as duration, whether they take place in-person or online, and the use of content experts. Although there is considerable theoretical and case study literature endorsing the value of public deliberation, there has been little empirical research about its effectiveness and even less about the comparative merits of different deliberative methods (Community Forum Deliberative Methods Literature Review, 2010).
1. Obtain informed and deliberated input from lay people on important questions underlying AHRQ's research program; and
2. Expand the evidence base for the use of public deliberation methods for exploring issues relevant to health care research by comparing the outcomes of five distinct deliberative methods to a control condition and to each other.
This study is being conducted by AHRQ through its contractor, the American Institutes of Research (AIR), pursuant to AHRQ's statutory authority to (1) promote health care quality improvement by conducting and supporting both research that develops and presents scientific evidence regarding all aspects of health care and the synthesis and dissemination of available scientific evidence for use by policymakers, among others, and (2) conduct and support research, provide technical assistance, and disseminate information on healthcare and on systems for the delivery of such care. See 42 U.S.C. 299(b)(1)(A), (D), (F), and (G); 42 U.S.C. 299(b)(2); 42 U.S.C. 299a(a)(1)–(4).
To achieve the objectives of this study the following activities and data collections will be implemented:
(1) Participant recruitment—A short screening questionnaire, including a brief overview of the study, will be used to recruit persons for the study.
(2) Educational Materials—Educational materials are designed to inform participants about the topics that are being deliberated and will be
(3) Deliberative Discussion Groups and Control Group—The purpose of the discussion groups is to obtain informed and deliberated input from lay people on an important set of issues underlying health care research. Participants will be randomly assigned to one of the five deliberative methods or a control condition. The five methods were selected because they have been previously implemented and vary on key features that may affect the scalability and effectiveness of the methods, including: duration (from two hours to three days), mode of implementation (online versus in person), role of content experts, and time between sessions allowing participants to seek additional information on the issues and communicate informally with other participants. The subject of the deliberations is the use of research evidence in healthcare decision-making. This deliberative topic encompasses several themes or “variations” that will be elaborated in the deliberations:
1. Use of evidence to encourage better healthcare: Is evidence useful (or, what kind of evidence is useful) to a physician and a patient who are considering a test or treatment that has been found to be ineffective, less effective than another, riskier than another, or for which effectiveness has not been demonstrated?
2. Use of evidence to encourage better value: Is evidence useful (or, what kind of evidence is useful) to a physician and a patient who are considering a test or treatment that is effective even though an equally effective but less expensive alternative is available?.
3. Decision-making when evidence shows more complex trade-offs: Is evidence useful (or, what kind of evidence is useful) in treatment decisions that involve the balancing of effectiveness, risk, and value?
The issues involved in each variation will be discussed in the context of specific comparative effectiveness research (CER) examples. These “vignettes” illustrate the issues and elicit participants' input on the issues and the values employed by participants in the deliberations.
(4) Knowledge and Attitudes Pre-test Survey — This survey will measure knowledge of and attitudes about the health issues discussed in the deliberations. It will be administered to deliberation participants and controls before educational materials are sent or the methods are implemented.
As described, study participants will be provided with educational materials related to the deliberative topic. In order to assess whether or not participants were sufficiently informed on the topics addressed in the materials, the Knowledge and Attitudes Survey contains items assessing knowledge of medical research and medical evidence, of comparative effectiveness research, and of healthcare costs. The attitudinal questions refer to the use of medical evidence in healthcare decision making. They include attitudes about health care decision-making when research findings can provide no support for, or conflict with patient and doctor preferences for particular treatments.
The questionnaire will also gather demographic and other information necessary to characterize the study sample, test the success of the randomization, and define population subgroups for which variation in outcomes will be examined. The demographic variables also will be used to control for participant and group characteristics that may influence the outcomes. Even though the design involves randomization, and these characteristics should be balanced across groups, including them in the statistical models guards against inadequate results from randomization.
The variables to be measured in the Knowledge and Attitudes Pre-test Survey include:
• Sociodemographic characteristics: gender, age, marital status, education, employment status, household income, race/ethnicity, priority population, languages spoken (in addition to English).
• General health status.
• Recent experience with the healthcare system (e.g., seeing a healthcare provider more than three times for the same condition in the last 12 months).
• Health insurance coverage.
• Health information-seeking behavior (e.g., the extent to which people seek healthcare information or rely on their doctors to provide information).
(5) Knowledge and Attitudes Post-test Survey—This survey will measure knowledge of and attitudes about the issues discussed in the deliberations after the deliberations take place. It will be administered to deliberation participants and controls within one week following conclusion of the deliberative methods and will include the same knowledge and attitude questions as the pre-test questionnaire.
(6) Deliberative Experience Survey—As described above, the five deliberative methods being tested vary in terms of duration, mode, use of educational materials, and time between deliberative sessions. A one-time survey will be administered to participants in the deliberative methods after implementation of the experimental conditions to compare deliberative methods to each other. Levels of discourse quality and implementation quality achieved will be assessed. Using multi-item scales, the survey will measure the following:
• Equal participation in the discussions
• Respect for others' opinions and tolerance of differing perspectives
• Appreciation of perspectives other than their own
• Reasoned justification of ideas: sharing the reasoning or rationale for positions, opinions, beliefs, or preferences
• Quality of group facilitation
• Quality of the educational materials provided
• Quality of the experts
• Transparency of the process and use of the results
• Participants' perceived value of method
• Participants' view of the influence the results will have on programs
In sum, information collection in this study will entail qualitative transcript review and quantitative surveys. This information will be used to describe and summarize the input obtained from the participants in the deliberative groups concerning the use of evidence, presenting the findings in reports for AHRQ and the public.
The information from the surveys also will be used to expand the evidence base for public deliberation. The experiment is designed to: (1) Compare the effectiveness of the five deliberative methods to the control condition and to each other, (2) compare the quality of the discourse achieved by the deliberative methods to each other, (3) assess the quality of implementation of the five methods, and (4) test for variation in effectiveness and discourse quality by features of the deliberations
Exhibit 1 shows the estimated annualized burden associated with the respondents' time to participate in this research. The total annualized burden hours are estimated to be 11,647 hours. The burden estimate comprises the following activities:
Participant Recruitment—The screening questionnaire and recruitment letter and materials will be sent to 1,685 participants. We estimate that it will take 15 minutes to complete the questionnaire and review the recruitment letter and materials.
Educational materials—Educational materials will be provided to all 1,685 participants recruited before the implementation of any of the methods. We estimate that it will take up to 1 hour to review the materials.
Exhibit 3 below breaks down the costs related to this study. These are the costs associated with the portion of the contract awarded to AIR to conduct the experiment. Since the implementation and evaluation periods will span 24 months, the costs have been annualized by taking the total cost and dividing by 2.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ healthcare research and healthcare information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) 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 upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404–639–5960 and send comments to Kimberly Lane, CDC Reports Clearance Officer, 1600 Clifton Road, MS–D74, Atlanta, GA 30333 or send an email to
CDC National Healthy Worksite Program (NHWP)—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
In the United States, chronic diseases such as cancer, heart disease, and diabetes are among the leading causes of death and disability. Although chronic diseases are among the most common and costly health problems, they are also among the most preventable. Adopting healthy behaviors, such as eating nutritious foods, being physically active, and avoiding tobacco use, can prevent the devastating effects of these diseases and lead to reduced rates of obesity, cancer, heart disease, stroke, and diabetes.
Increasing health care costs, and decreases in employee productivity due to health-related factors, are leading American businesses to examine strategies to improve health and contain health care costs. Employers are recognizing the role they can play in creating a healthy work environment and providing their employees with opportunities to make healthy lifestyle choices. They increasingly look to CDC and other public health experts for guidance and solutions to combat the effects of chronic diseases on their employees and businesses.
To support these efforts, the Centers for Disease Control and Prevention (CDC) is establishing the National Healthy Worksite Program (NHWP), a comprehensive workplace health promotion program to address physical activity, nutrition, and tobacco use in the workplace. Participating worksites will create high quality workplace health programs by implementing programs, policies, and environmental supports that assist employees in adopting healthy behaviors. The NHWP is authorized by the Public Health Service Act and funded through the Prevention and Public Health Fund of the Patient Protection and Affordable Care Act (ACA).
CDC-funded NHWP support will be provided over a two-year period to an initial group of 100 worksites drawn from seven communities. The worksites will represent small, medium and large employers in a variety of industry sectors. The largest employers will be required to make an in-kind contribution to supplement the support provided through the NHWP. Support to be provided for worksites participating in the NHWP will include organizational assessment, guidance on strategies for supporting a culture of
CDC plans to collect information needed to select the initial group of participating NHWP worksites; to describe implementation and costs of workplace health promotion programs at these sites over the initial two-year period of support; to examine the effects of workplace health programs on employee access and opportunity to engage in activities that support a healthy lifestyle; and to quantify reductions in individual health risks and improvements in productivity. In addition, for up to one year after the two-year implementation period, CDC will collect information needed to assess program sustainability. Respondents will include employers, employees, and support staff at sites participating in the NHWP. To gain insight into training needs, barriers to participation, and other issues related to program sustainability, information will also be collected from additional employers in NHWP communities.
There are no costs to participants other than their time, with the exception of the in-kind contribution for large employers. Participation in the NHWP is voluntary for both worksites and employees at those sites.
OMB approval is requested for three years. Information will be used to evaluate the NHWP, to identify success drivers for building and maintaining a successful workplace health program, and to develop tools and resources for additional employers who are interested in establishing workplace health programs.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404–639–7570 and send comments to Kimberly Lane, CDC Reports Clearance Officer, 1600 Clifton Road, MS–D74, Atlanta, GA 30333 or send an email to
Foreign Quarantine Regulations (42 CFR 71) (OMB Control No. 0920–0134) exp. 6/30/12)—Revision—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
Section 361 of the Public Health Service Act (PHSA)(42 U.S.C. 264) authorizes the Secretary of Health and Human Services (HHS) to make and enforce regulations necessary to prevent the introduction, transmission, or spread of communicable diseases into the United States. Legislation and existing regulations governing the foreign quarantine activities (42 CFR 71) authorize quarantine officers and other personnel to inspect and undertake necessary control measures with respect to conveyances, persons, and shipments of animals and etiologic agents entering the United States from foreign ports in order to protect the public's health.
Under the foreign quarantine regulations, the master of a ship or captain of an airplane entering the United States from a foreign port is required by public health law to report certain illnesses among passengers (42 CFR 71.21 (b)). In addition to the aforementioned list of illnesses which must be reported to CDC, the master of a ship or captain of an airplane must also report (1) Hemorrhagic Fever Syndrome (persistent fever accompanied by abnormal bleeding from any site); or (2) acute respiratory syndrome (severe cough or severe respiratory disease of less than 3 weeks in duration); or (3) acute onset of fever and severe headache, accompanied by stiff neck or change in level of consciousness. CDC has the authority to collect personal health information to protect the health of the public under the authority of section 301 of the Public Health Service Act (42 U.S.C.).
This information collection request also includes the Passenger Locator Information Form. The Passenger Locator Information Form is used to collect reliable information that assists quarantine officers in locating, in a timely manner, those passengers and crew who are exposed to communicable diseases of public health significance while traveling on a conveyance. HHS delegates authority to CDC to conduct quarantine control measures. Currently, with the exception of rodent inspections and the cruise ship sanitation program, inspections are performed only on those vessels and aircraft which report illness prior to arrival or when illness is discovered upon arrival. Other inspection agencies assist quarantine officers in public health screening of persons, pets, and other importations of public health significance and make referrals to the Public Health Service when indicated. These practices and procedures assure protection against the introduction and spread of communicable diseases into the United States with a minimum of recordkeeping and reporting as well as a minimum of interference with trade and travel.
Small revisions are being requested as part of this package. A modification of format to the Passenger Locator Form (PLF) is requested to account for a change in the scanning software used for the PLF. No change in content is requested. The content will remain identical to the version approved by OMB on 10/28/11.
Changes to the data collection related to the confinement of dogs upon arrival to the United States are also requested. The CDC form 75.37, “Notice of Importers of Dogs” will now be identified as CDC form 75.37 “NOTICE TO OWNERS AND IMPORTERS OF DOGS: Requirement for Dog Confinement.” The form has been changed to enhance clarity around the purpose of the form, including: the type of data required, the regulatory requirements the form is meeting, the responsibilities of the importer, whether or not the animal has received a booster rabies vaccine, and the responsibility of the government agent in ensuring that the form is complete.
Respondents to this data collection include airline pilots, ships' captains, importers, and travelers. The nature of the quarantine response dictates which forms are completed by whom. There are no costs to respondents except for their time to complete the forms.
This notice was published in the
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), the Centers for Disease Control and Prevention (CDC), announces the following meeting of the aforementioned committee:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
National Center for Health Statistics (NCHS), Classifications and Public Health Data Standards Staff, announces the following meeting.
Participants who attended previous ICD–9–CM C&M meetings will no longer be automatically added to the visitor list. You must request inclusion of your name prior to each meeting you attend.
Please register to attend the meeting on-line at:
Please contact Mady Hue (410–786–4510 or
ICD–9–CM Procedure Topics:
ICD–10 Updates:
ICD–10–CM Diagnosis Topics:
Agenda items are subject to change as priorities dictate.
CMS and NCHS will no longer provide paper copies of handouts for the meeting. Electronic copies of all meeting materials will be posted on the CMS and NCHS Web sites prior to the meeting at
The Director, Management Analysis and Services Office, has been delegated the authority to sign
This notice was published in the
Agenda items are subject to change as priorities dictate.
The Meeting is Web cast live via the World Wide Web; for instructions and more information on ACIP please visit the ACIP Web site:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The Head Start Impact Study is a longitudinal study involving 4,667 first time enrolled three- and four-year-old preschool children across 84 nationally representative grantee/delegate agencies. Participants have been randomly assigned to either a Head Start group or a control group. Data collection for the study began in fall of 2002 and has been extended through late spring 2008 to include the participants' 3rd grade year. Tracking of the participants has continued every spring beginning in 2009 and ending in 2011.
ACF will continue to examine outcomes for the sample through the spring of the participant's 12th grade year. To maintain adequate sample size, telephone interviews will be conducted in order to update the respondent's location and contact information. This information will be collected from
Estimated Total Annual Burden Hours: 1412.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by April 16, 2012.
Submit electronic comments on the collection of information to
Ila S. Mizrachi, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50–400B, Rockville, MD 20850, 301–796–7726,
Under the PRA (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA'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 respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Under the Safe Medical Devices Act of 1990 (Pub. L. 101–629), FDA may establish special controls, including performance standards, postmarket surveillance, patient registries, guidelines, and other appropriate actions it believes necessary to provide reasonable assurance of the safety and effectiveness of the device.
The special control guidance serves to support the reclassification from class III to class II of the automated blood cell separator device operating on a centrifugal separation principle intended for the routine collection of blood and blood components as well as
For currently marketed products not approved under the premarket approval process, the manufacturer should file with FDA for 3 consecutive years an annual report on the anniversary date of the device reclassification from class III to class II or, on the anniversary date of the 510(k) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360) clearance. Any subsequent change to the device requiring the submission of a premarket notification in accordance with section 510(k) of the FD&C Act should be included in the annual report. Also, a manufacturer of a device determined to be substantially equivalent to the centrifugal or filtration-based automated cell separator device intended for the routine collection of blood and blood components, should comply with the same general and special controls.
The annual report should include, at a minimum, a summary of anticipated and unanticipated adverse events that have occurred and that are not required to be reported by manufacturers under Medical Device Reporting (MDR) (part 803 (21 CFR part 803)). The reporting of adverse device events summarized in an annual report will alert FDA to trends or clusters of events that might be a safety issue otherwise unreported under the MDR regulation.
Reclassification of this device from class III to class II for the intended use of routine collection of blood and blood components relieves manufacturers of the burden of complying with the premarket approval requirements of section 515 of the FD&C Act (21 U.S.C. 360e), and may permit small potential competitors to enter the marketplace by reducing the burden. Although the special control guidance recommends that manufacturers of these devices file with FDA an annual report for 3 consecutive years, this would be less burdensome than the current postapproval requirements under part 814, subpart E (21 CFR part 814, subpart E), including the submission of periodic reports under § 814.84.
Collecting or transfusing facilities, and manufacturers have certain responsibilities under the Federal regulations. For example, collecting or transfusing facilities are required to maintain records of any reports of complaints of adverse reactions (21 CFR 606.170), while the manufacturer is responsible for conducting an investigation of each event that is reasonably known to the manufacturer and evaluating the cause of the event (§ 803.50(b)). In addition, manufacturers of medical devices are required to submit to FDA individual adverse event reports of death, serious injury, and malfunctions (§ 803.50).
In the special control guidance document, FDA recommends that manufacturers include in their three annual reports a summary of adverse reactions maintained by the collecting or transfusing facility or similar reports of adverse events collected in addition to those required under the MDR regulation. The MedWatch medical device reporting code instructions (
FDA estimates the burden of this collection of information as follows:
Based on FDA records, there are approximately four manufactures of automated blood cell separator devices. We estimate that the manufacturers will spend approximately 5 hours preparing and submitting the annual report.
Other burden hours required for § 864.9245 are reported and approved under OMB control number 0910–0120 (premarket notification submission 501(k), 21 CFR part 807, subpart E), and OMB control number 0910–0437 (MDR, 21 CFR part 803).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the concerning each proposed collection of information, and to allow 60 days for public comment in response to the notice. This notice solicits comments on the information collection for the requirements for an application for a proposed biosimilar product and an application for a supplement for a proposed interchangeable product.
Submit either electronic or written comments on the collection of information by April 16, 2012.
Submit electronic comments on the collection of information to
Juanmanuel Vilela, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr.,
Under the PRA (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA'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 respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
On March 23, 2010, the President signed into law the Patient Protection and Affordable Care Act (Affordable Care Act) (Pub. L. 111–148). The Affordable Care Act contains a subtitle called the Biologics Price Competition and Innovation Act of 2009 (BPCI Act) which amends the Public Health Service Act (PHS Act) and establishes an abbreviated licensure pathway for biological products shown to be biosimilar to, or interchangeable with, an FDA-licensed biological reference product. (See sections 7001 through 7003 of the Affordable Care Act.)
Section 351(k) of the PHS Act (42 U.S.C. 262(k)), added by the BPCI Act, sets forth the requirements for an application for a proposed biosimilar product and an application for a supplement for a proposed interchangeable product. Section 351(k) defines biosimilarity to mean “that the biological product is highly similar to the reference product notwithstanding minor differences in clinically inactive components” and that “there are no clinically meaningful differences between the biological product and the reference product in terms of the safety, purity, and potency of the product”. (See section 351(i)(2) of the PHS Act.) A 351(k) application must contain, among other things, information demonstrating that the biological product is biosimilar to a reference product based upon data derived from analytical studies, animal studies, and clinical studies, unless FDA determines, in its discretion, that certain studies are unnecessary in a 351(k) application. (See section 351(k)(2).) To demonstrate interchangeability, an applicant must provide sufficient information to demonstrate biosimilarity, and that the biosimilar biological product can be expected to produce the same clinical result as the reference product in any given patient and, if the biosimilar biological product is administered more than once to an individual, the risk in terms of safety or diminished efficacy of alternating or switching between the use of the biosimilar biological product and the reference product is not greater than the risk of using the reference product without such alternation or switch. (See section 351(k)(4) of the PHS Act.) Interchangeable products may be substituted for the reference product without the intervention of the prescribing healthcare provider. (See section 351(i)(3) of the PHS Act.) This
In estimating the information collection burden for 351(k) applications, FDA has reviewed the collection of information regarding the general licensing provisions for biologics license applications (BLAs) under section 351(a) of the PHS Act to OMB (approved under OMB control number 0910–0338). For the information collection burden for 351(a) applications, FDA described § 601.2(a) (21 CFR 601.2(a)) as requiring a manufacturer of a biological product to submit an application on forms prescribed for such purpose with accompanying data and information including certain labeling information to FDA for approval to market a product in interstate commerce. FDA also added in the burden estimate the container and package labeling requirements provided under §§ 610.60 through 610.65 (21 CFR 610.60 through 610.65). The estimated hours per response for § 601.2, and §§ 610.60 through 610.65, were 860 hours.
In addition, in submitting a 351(a) application, an applicant completes the Form FDA 356h “Application to Market a New Drug, Biologic, or an Antibiotic Drug for Human Use.” The application form serves primarily as a checklist for firms to gather and submit certain information to FDA. The checklist helps to ensure that the application is complete and contains all the necessary information, so that delays due to lack of information may be eliminated. The form provides key information to FDA for efficient handling and distribution to the appropriate staff for review. The estimated burden hours for biological product submissions using FDA Form 356h are included under the applicable requirements approved under OMB control number 0910–0338.
FDA intends for an applicant to submit a 351(k) application following Form FDA 356h, modifying the information submitted to support the information required under section 351(k) of the BPCI Act. To submit an application seeking licensure of a proposed biosimilar product under section 351(k)(2)(A)(i) and (k)(2)(A)(iii), FDA believes that the estimated burden hours would be approximately the same as noted under OMB control number 0910–0338 for a 351(a) application—860 hours. The burden estimates for seeking licensure of a proposed biosimilar product that meets the standards for interchangeability under section 351(k)(2)(B) and (k)(4) would also be 860 hours. Until we gain more experience with biosimilar applications, FDA believes this estimate is appropriate for 351(k) applications because to determine biosimilarity or interchangeability of a proposed 351(k) product, the application and the information submitted is expected to be comparably complex and technically demanding as a proposed 351(a) application. FDA may determine, in its discretion, that an element required under a 351(k) application to be unnecessary to support licensure of a biosimilar or interchangeable product. In those cases, the number of hours per response may be less than the hours estimated.
A summary of the collection of information requirements in the submission of a 351(k) application as described under the BPCI Act follows:
Section 351(k)(2)(A)(i) requires manufactures of 351(k) products to
• The biological product is biosimilar to a reference product based upon data derived from analytical studies, animal studies (including toxicity) and a clinical study or studies (including immunogenicity and pharmacokinetics or pharmacodynamics). The Secretary of Health and Human Services (the Secretary) may determine that any of these elements is unnecessary.
• The biological product and reference product utilize the same mechanism or mechanisms of action for the condition or conditions of use prescribed, recommended, or suggested in the proposed labeling, but only to the extent the mechanism or mechanisms of action are known for the reference product.
• The condition or conditions of use prescribed, recommended, or suggested in the labeling proposed for the biological product have been previously approved for the reference product.
• The route of administration, the dosage form, and the strength of the biological product are the same as those of the reference product.
• The facility in which the biological product is manufactured, processed, packed, or held meets standards designed to assure that the biological product continues to be safe, pure, and potent.
Section 351(k)(2)(A)(iii) requires the application to include publicly-available information regarding the Secretary's previous determination that the reference product is safe, pure, and potent. The application may include any additional information in support of the application, including publicly-available information with respect to the reference product or another biological product.
Under section 351(k)(2)(B) and (k)(4), a manufacturer may include information demonstrating that the biological product meets the standards for interchangeability either in the application described above to show biosimilarity, or in a supplement to such an application. The information submitted to meet the standard for interchangeability must show that: (1) The biological product is biosimilar to the reference product and can be expected to produce the same clinical result as the reference product in any given patient and (2) for a biological product that is administered more than once to an individual, the risk in terms of safety or diminished efficacy of alternating or switching between use of the biological product and the reference product is not greater than the risk of using the reference product without such alternation or switch.
In addition to the collection of information regarding the submission of a 351(k) application for a proposed biosimilar or interchangeable biological product, section 351(l) of the BPCI Act establishes procedures for identifying and resolving patent disputes involving applications submitted under section 351(k) of the PHS Act. The burden estimates for the patent provisions under section 351(l)(6)(C) of the BPCI Act are included in table 1 of this document and are based on the estimated number of 351(k) biosimilar respondents. Based on similar reporting requirements, FDA estimates this notification will take 2 hours. A summary of the collection of information requirements under 351(l)(6)(C) follows:
Not later than 30 days after a complaint from the reference product sponsor is served to a 351(k) applicant in an action for patent infringement described under 351(l)(6), section 351(l)(6)(C) requires that the 351(k) applicant provide the Secretary with notice and a copy of such complaint. The Secretary shall publish in the
FDA has not received any 351(k) applications to date. Under table 1 of this document, the estimated number of respondents submitting 351(k) applications is based on the estimated annual number of manufacturers that would submit the required information to FDA and the estimated annual number of 351(k) submissions FDA would receive. In making this estimate, FDA has taken into account, among other things, the expiration dates of patents that relate to potential reference products, and general market interest in biological products that could be candidates for 351(k) applications.
On November 2 and 3, 2010, FDA held a public hearing and established a public docket to obtain input on specific issues and challenges associated with the implementation of the BPCI Act. (See Docket No. FDA–2010–N–0477.) Based in part on this input, FDA is announcing elsewhere in this issue of the
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Scientific Considerations in Demonstrating Biosimilarity to a Reference Product.” This draft guidance is intended to assist sponsors in demonstrating that a proposed therapeutic protein product is biosimilar to a reference product for the purpose of submitting a marketing application through an abbreviated licensure pathway. This draft guidance gives an overview of FDA's approach to determining biosimilarity.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by April 16, 2012.
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2201, Silver Spring, MD 20993–0002; or the Office of Communication, Outreach and Development (HFM–40), Center for Biologics Evaluation and Research, Food and Drug Administration, 1401 Rockville Pike, Suite 200N, Rockville, MD 20852–1448. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the draft guidance to
Sandra Benton, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6340, Silver Spring, MD 20993–0002, 301–796–1042; or Stephen Ripley, Center for Biologics Evaluation and Research (HFM–17), Food and Drug Administration, 1401 Rockville Pike, Suite 200N, Rockville, MD 20852–1448, 301–827–6210.
FDA is announcing the availability of a draft guidance for industry entitled “Scientific Considerations in Demonstrating Biosimilarity to a Reference Product.” This draft guidance is intended to assist sponsors in demonstrating that a proposed therapeutic protein product is “biosimilar”
The Biologics Price Competition and Innovation Act of 2009, enacted as part of the Affordable Care Act (Pub. L. 111–148) on March 23, 2010, created an abbreviated licensure pathway under section 351(k) of the PHS Act for biological products demonstrated to be biosimilar to, or interchangeable with, a reference product. Under this abbreviated licensure pathway, FDA will license a proposed biological product submitted under section 351(k) of the PHS Act if FDA “determines that the information submitted in the application * * * is sufficient to show that the biological product is biosimilar to the reference product * * *” and the 351(k) applicant (or other appropriate person) consents to an inspection of the facility that is the subject of the application (i.e., a facility in which the proposed biological product is manufactured, processed, packed, or held).
• A stepwise approach to demonstrating biosimilarity, which can include a comparison of the proposed therapeutic protein product and the reference product with respect to structure, function, animal toxicity, human pharmacokinetics and pharmacodynamics, clinical immunogenicity, and clinical safety and effectiveness;
• The totality-of-the-evidence approach that FDA will use to review applications for biosimilar products; and
• General scientific principles in conducting comparative structural and functional analysis, animal testing, human pharmacokinetics and pharmacodynamics studies, clinical immunogenicity assessment, and clinical safety and effectiveness studies (including clinical study design issues).
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on scientific considerations in demonstrating biosimilarity to a reference product. It does not create or confer any rights for or on any person
Interested persons may submit to the Division of Dockets Management (see
This draft guidance describes information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501–3520). In particular, the draft guidance refers to information collections related to the submission of 351(k) application. In accordance with the PRA, FDA is soliciting public comment, in a separate document published elsewhere in this issue of the
In addition, this draft guidance references other information collections that are already approved by OMB and are not expected to change as a result of the draft guidance. This includes information collections related to the submission of (1) an investigational new drug application, which is covered under 21 CFR part 312 and approved under OMB control number 0910–0014; (2) a new drug application, which is covered under 21 CFR 314.50 and approved under OMB control number 0910–0001; (3) a biologics license application, which is covered under 21 CFR part 601 and approved under OMB control number 0910–0338; and (4) labeling, which is covered under 21 CFR 201.57 and approved under OMB control number 0910–0572.
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Quality Considerations in Demonstrating Biosimilarity to a Reference Protein Product.” This draft guidance is intended to provide sponsors with an overview of analytical factors to consider when assessing biosimilarity between a proposed protein product and a reference product for the purpose of submitting a marketing application through an abbreviated licensure pathway. This draft guidance provides an overview of FDA's approach to quality considerations in determining biosimilarity.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comments on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by April 16, 2012.
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2201, Silver Spring, MD 20993–0002, or Office of Communication, Outreach, and Development (HFM–40), Center for Biologics Evaluation and Research, Food and Drug Administration, 1401 Rockville Pike, Suite 200N, Rockville, MD 20852–1448. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the draft guidance to
Sandra Benton, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6340, Silver Spring, MD 20993–0002, 301–796–1042, or Stephen Ripley, Center for Biologics Evaluation and Research (HFM–17), Food and Drug Administration, 1401 Rockville Pike, Suite 200N, Rockville, MD 20852–1448, 301–827–6210.
FDA is announcing the availability of a draft guidance for industry entitled “Quality Considerations in Demonstrating Biosimilarity to a Reference Protein Product.” This draft guidance is intended to provide sponsors with an overview of analytical factors to consider when assessing biosimilarity between a proposed protein product and a reference product for the purpose of submitting a marketing application through the abbreviated licensure pathway under section 351(k) of the Public Health Service Act (PHS Act) (42 U.S.C. 262(k)). Although the 351(k) pathway applies generally to biological products, this draft guidance focuses on therapeutic protein products.
The Biologics Price Competition and Innovation Act of 2009, enacted as part of the Patient Protection and Affordable Care Act (Affordable Care Act) (Pub. L. 111–148) on March 23, 2010, created an abbreviated licensure pathway under section 351(k) of the PHS Act for biological products demonstrated to be biosimilar to, or interchangeable with, a reference product. Under this abbreviated licensure pathway, FDA will license a proposed biological product submitted under section 351(k) of the PHS Act if FDA “determines that the information submitted in the application * * * is sufficient to show that the biological product is biosimilar to the reference product * * *” and the 351(k) applicant (or other appropriate person) consents to an inspection of the facility that is the subject of the application (i.e., a facility in which the proposed biological product is
All product applications should contain a complete and thorough Chemistry, Manufacturing, and Controls (CMC) section that provides the necessary and appropriate information (
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on quality considerations in demonstrating biosimilarity to a reference protein product. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
This draft guidance describes information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501–3520). In particular, the draft guidance refers to information collections related to the submission of a 351(k) application. In accordance with the PRA, FDA is soliciting public comment, in a separate document published elsewhere in this issue of the
In addition, this draft guidance references other information collections that are already approved by OMB and are not expected to change as a result of the draft guidance. This includes information collections related to the submission of (1) an investigational new drug application which is covered under 21 CFR part 312 and approved under OMB control number 0910–0014; (2) a new drug application which is covered under 21 CFR 314.50 and approved under OMB control number 0910–0001; and (3) a biologics license application which is covered under 21 CFR part 601 and approved under OMB control number 0910–0338.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Biosimilars: Questions and Answers Regarding Implementation of the Biologics Price Competition and Innovation Act of 2009.” This draft guidance is intended to provide answers to common questions from sponsors interested in developing proposed biosimilar products, biologics license application (BLA) holders, and other interested parties regarding FDA's interpretation of the Biologics Price Competition and Innovation Act of 2009 (BPCI Act).
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by April 16, 2012. Submit either electronic or written comments on the proposed collection of information by April 16, 2012.
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2201, Silver Spring, MD 20993–0002; or the Office of Communication, Outreach and Development (HFM–40), Center for Biologics Evaluation and Research, Food and Drug Administration, 1401 Rockville Pike, Suite 200N, Rockville, MD 20852–1448. Send one self-addressed adhesive label to assist the office in processing your requests. See the
Submit electronic comments on the draft guidance to
Sandra Benton, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6340, Silver Spring, MD 20993–0002, 301–796–1042; or Stephen Ripley, Center for Biologics Evaluation and Research (HFM–17), Food and Drug Administration, 1401 Rockville Pike, Suite 200N, Rockville, MD 20852–1448, 301–827–6210.
FDA is announcing the availability of a draft guidance for industry entitled “Biosimilars: Questions and Answers Regarding Implementation of the Biologics Price Competition and Innovation Act of 2009.” This draft guidance provides answers to common questions from sponsors interested in developing proposed biosimilar products, BLA holders, and other interested parties regarding FDA's interpretation of the BPCI Act.
The BPCI Act, enacted as part of the Patient Protection and Affordable Care Act (Pub. L. 111–148) on March 23, 2010, created an abbreviated licensure pathway under section 351(k) of the Public Health Service Act (42 U.S.C. 262(k)) for biological products demonstrated to be biosimilar to, or interchangeable with, an FDA-licensed biological reference product. This draft guidance describes FDA's current interpretation of certain statutory requirements added by the BPCI Act and includes questions and answers (Q&As) in the following categories:
FDA intends to update this guidance to include additional Q&As as appropriate and intends to post information by Q&A number on FDA's Web site regarding the publication date of draft guidance Q&As for comment, the comment period, and the publication date of final guidance Q&As.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit to the Division of Dockets Management (see
This draft guidance describes information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (the PRA) (44 U.S.C. 3501–3520). In particular, the draft guidance refers to information collections related to the submission of a 351(k) application. In accordance with the PRA, FDA is soliciting public comment, in a separate document published elsewhere in this issue of the
In addition, this draft guidance references other information collections that are already approved by OMB and are not expected to change as a result of the draft guidance. This includes information collections related to the submission of (1) an investigational NDA, which is covered under 21 CFR part 312 and approved under OMB control number 0910–0014; (2) an NDA, which is covered under 21 CFR 314.50 and approved under OMB control number 0910–0001; (3) a biologics license application, which is covered under 21 CFR part 601 and approved under OMB control number 0910–0338; and (4) labeling, which is covered under 21 CFR 201.57 and approved under OMB control number 0910–0572.
The draft guidance also discusses the retention of reserve samples of the biological products used in comparative clinical pharmacokinetic and/or pharmacodynamic studies intended to support a proposed 351(k) application. Such reserve samples are samples of products or other physical objects exempt under 5 CFR 1320.3(h)(2), and thus not considered “information” as that term is defined under the PRA.
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice of public workshop.
The Food and Drug Administration (FDA) Detroit District Office, in co-sponsorship with the Society of Clinical Research Associates (SoCRA) is announcing a public workshop. The public workshop on FDA's clinical trial requirements is designed to aid the clinical research professional's understanding of the mission, responsibilities, and authority of FDA and to facilitate interaction with FDA representatives. The program will focus on the relationships among FDA and clinical trial staff, investigators, and institutional review boards (IRB). Individual FDA representatives will discuss the informed consent process and informed consent documents; regulations relating to drugs, devices, and biologics; as well as inspections of clinical investigators, IRB, and research sponsors.
If you need special accommodations due to a disability, please contact SoCRA (see
The public workshop helps fulfill the Department of Health and Human Services' and FDA's important mission to protect the public health. The workshop will provide those engaged in FDA-regulated (human) clinical trials with information on a number of topics concerning FDA requirements related to informed consent, clinical investigation requirements, IRB inspections, electronic record requirements, and investigator initiated research. Topics for discussion include the following: (1) What FDA Expects in a Pharmaceutical Clinical Trial; (2) Adverse Event Reporting—Science, Regulation, Error, and Safety; (3) Part 11 Compliance—Electronic Signatures; (4) Informed Consent Regulations; (5) IRB Regulations and FDA Inspections; (6) Keeping Informed and Working Together; (7) FDA Conduct of Clinical Investigator Inspections; (8) Meetings With FDA: Why, When, and How; (9) Investigator Initiated Research; (10) Medical Device Aspects of Clinical Research; (11) Working With FDA's Center for Biologics Evaluation and Research; (12) The Inspection is Over—What Happens Next? Possible FDA Compliance Actions; (13) Ethical Issues in Subject Enrollment; (14) Medical Device Aspects of Clinical Research; (15) Are We There Yet? An Overview of the FDA GCP Program.
FDA has made education of the drug and device manufacturing community a high priority to help ensure the quality of FDA-regulated drugs and devices. The public workshop helps to achieve objectives set forth in section 406 of the FDA Modernization Act of 1997 (21 U.S.C. 393) which includes working closely with stakeholders and maximizing the availability and clarity of information to stakeholders and the public. The public workshop also is consistent with the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121) as outreach activities by Government Agencies to small businesses.
Pursuant to the Federal Advisory Committee Act, as amended (5 U.S.C. App), the Director, National Institutes of Health (NIH), announces the establishment of the National Center for Advancing Translational Sciences Advisory Council (Council) and the Cures Acceleration Network Review Board (Board), in the National Center for Advancing Translation Sciences (NCATS).
The Council will advise, assist, consult with, and make recommendations to the Secretary of Health and Human Services (Secretary), the Director, National Institutes of Health (NIH) and the Director, National Center for Advancing Translational Sciences (NCATS, also referred to as Center) on matters related to the activities carried out by and through the Center and the policies respecting these activities.
The Board will advise, and provide recommendation to, the Director, NCATS, with respect to (1) policies, programs, and procedures for carrying out the duties of the Director, NCATS, under section 480 of the PHS Act; and (2) significant barriers to successful translation of basic science into clinical application (including issues under the purview of other agencies and departments).
Duration of each committee is two years from the date the Charter is filed.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as
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.
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.
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.
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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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 the cancellation of the National Cancer Institute Board of Scientific Advisors, March 5, 2012, 9 a.m. to March 6, 2012, 12 p.m., National Institutes of Health, Building 31, 31 Center Drive, 6th Floor, Conf. Rm. 10, Bethesda, MD, 20892 which was published in the
The meeting has been cancelled.
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.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the Fish and Wildlife Service (Service), announce the availability of a draft comprehensive conservation plan and environmental assessment (Draft CCP/EA) for Clarks River National Wildlife Refuge (NWR) in Graves, Marshall, and McCracken Counties, Kentucky, for public review and comment. In this Draft CCP/EA, we describe the alternative we propose to use to manage this refuge for the 15 years following approval of the final CCP.
To ensure consideration, we must receive your written comments by March 16, 2012.
You may obtain a copy of the Draft CCP/EA by contacting Ms. Tina Chouinard, via U.S. mail at 49 Plainsbrook Place, Jackson, TN 38305, or via email at
Ms. Tina Chouinard, at 731/432–0981 (telephone).
With this notice, we continue the CCP process for Clarks River NWR. We started the process through a notice in the
Clarks River NWR is located in western Kentucky, an area also known as the Jackson Purchase. The refuge averages approximately 2 to 3 miles wide, extends about 20 miles from near Paducah, Kentucky, to just south of Benton, Kentucky. Due to the meandering nature of the Clarks River, the refuge acquisition boundary protects about 40 river miles.
Clarks River NWR was established in 1997. The acquisition boundary currently approved by Congress is approximately 19,605 acres, of which 8,634 acres have been purchased. The lands are distributed among counties as follows: Graves County (56 acres), Marshall County (5,970 acres), and McCracken County (2,608 acres). Lands are purchased on a willing-seller basis only. Clarks River NWR was established under the Emergency Wetlands Resources Act of 1986 (16 U.S.C. 3901) for the development, advancement, management, conservation, and protection of fish and wildlife resources.
Approximately 74 percent of the land associated with the Clarks River NWR is forested, 22 percent is agricultural land, and 2 percent is freshwater marsh/shrub swamp. The refuge is made up of managed impoundments, native warm-season grasses, and disturbed lands such as roads and utility corridors. Refuge lands are managed for all plants and animals that occur in the area of western Kentucky, with a primary emphasis on migratory songbirds and waterfowl, game species, and listed species. Refuge goals and objectives are achieved through forest management, cooperative farming, habitat restoration, water management, and prescribed fire.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd–668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Administration Act.
Significant issues addressed in the Draft CCP/EA include: (1) Baseline wildlife surveys; (2) bottomland hardwood and riparian forest management; (3) land protection; (4) comprehensive hydrological study of the Clarks River; (5) enhancement of wildlife-dependent visitor services programs; (6) increase in permanent staff; and (7) compatibility determinations.
We developed three alternatives for managing the refuge (Alternatives A, B, and C), with Alternative B as our proposed alternative. A full description of each alternative is in the Draft CCP/EA. We summarize each alternative below.
The No Action Alternative, which would maintain current management approaches, was developed using anticipated conditions in the area of Clarks River NWR over the next 15 years. This alternative assumes that conservation management and land protection programs and activities that are currently being undertaken by the Service and other Federal agencies, as well as by State, local, and private organizations, would continue to follow past trends. Species of Federal responsibility, such as threatened and endangered species and migratory birds, would continue to be monitored at present levels. Acquisition of lands for the refuge would occur when funding is appropriated and willing sellers offer land that is identified as quality habitat.
Wildlife population monitoring and surveying would be focused primarily on waterfowl and mammal species. Additional species monitoring would occur opportunistically as partnerships and funding are available. Restoration efforts would continue as small, experimental projects instead of larger projects that promote longer-lasting benefits.
The biological environment would remain protected, but certain systems could suffer if not systematically monitored using focal species as indicators. Management under Alternative A would not adversely impact socioeconomic values of the area, but the refuge would not achieve its potential to provide the public with needed educational and wildlife-dependent recreational activities.
The public use programs of fishing, hunting, wildlife observation, wildlife photography, and environmental education and interpretation would continue at present levels and with current facilities. Public use programs would not change or increase with demand and would not be adapted based on the impacts to refuge resources.
In general, under Alternative A, management and administrative decisions and actions would occur when triggered by demands and sources outside the refuge, with little deliberation and planning being accomplished ahead of time. This alternative, included for the purpose of comparison to baseline conditions, is not considered to be the most effective management strategy for achieving the vision and goals of the refuge.
The proposed alternative, Alternative B, would emphasize management of the natural resources of Clarks River NWR based on maintaining and improving wetland habitats, monitoring targeted flora and fauna representative of the surrounding Clarks River watershed, and providing quality public use programs and wildlife-dependent recreational activities. All species occurring on the refuge would be considered, and certain targeted species would be managed for and monitored in addition to species of Federal responsibility. These species would be chosen based on the criteria that they are indicators of the health of important habitat or species of concern. Information gaps in knowledge of the refuge's aquatic species would be addressed.
Restoration efforts, habitat management, a prescribed fire program, and forest management would reflect best management practices determined after examination of historical regimes, soil types and elevation, and the current hydrological system. Management actions would be monitored for effectiveness and adapted to changing conditions, knowledge, and technology. A habitat management plan would be developed to plan future habitat projects and evaluate previous actions.
Overall public use would be monitored to determine if any negative impacts are occurring on resources from overuse. Education programs would be reviewed and improved to complement current management and current staffing. Public use programs would be updated to support and teach the reasons behind management actions, and to provide quality experiences to visitors. The refuge headquarters would be developed to provide more visitor services. In an increasingly developing region, a balanced wildlife-dependent recreational program would be a focus under this alternative. A new visitor center would be constructed. Archaeological resources would be surveyed.
The refuge currently has fee-title ownership of about 8,634 acres with an approved acquisition boundary of 19,605 acres. Lands are purchased on a willing-seller basis only. Alternative B includes a proposed expansion of 34,269 acres and would bring the total refuge acquisition boundary to approximately 53,874 acres, and would protect lands along the east and west forks of the Clarks River. Land acquisitions within the existing and proposed expanded acquisition boundaries would be based on importance of the habitat for target management species. We would offer interpretation of refuge wildlife and habitats, as well as demonstrate habitat improvements for individual landowners.
In general, under Alternative B, management decisions and actions would support wildlife species and habitat occurring on the refuge based on well-planned strategies and sound scientific judgment. Quality wildlife-dependent recreational uses and environmental education and interpretation programs would be offered to support and explain the natural resources of the refuge.
This alternative would add six new positions to current staffing in order to protect resources, provide visitor services, and attain goals of facilities and equipment maintenance in the future. The biological environment would improve as adaptive and best management practices are utilized. Socioeconomic values should also increase as we offer increased wildlife-dependent recreational opportunities. Areas such as this are beneficial to local ecotourism trade and residents searching for natural landscapes and associated benefits.
Alternative C would emphasize maximizing wildlife-dependent recreational uses on the refuge. The increase of nine staff members in addition to the existing employees would support public use activities, including hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. In general, the focus would be on expanding public use activities to the fullest extent possible, while conducting only mandated resource protection, such as conservation of threatened and endangered species, migratory birds, and archaeological resources.
All management programs for conservation of wildlife and habitat, such as monitoring, surveying, and researching, would support species and resources of importance for public use enhancement. Emphasis would be placed more on interpreting and demonstrating these programs than actual implementation. Providing access with trails would be maximized, as well as providing public use facilities throughout the refuge. Federal trust species and archaeological resources would be monitored as mandated, but other species targeted for management would depend on which ones the public is interested in utilizing. Habitat restoration efforts would be based on public use demands and criteria rather than determined through methods using a strategic habitat conservation approach.
With the majority of staff time and funds supporting a public use program, wildlife-dependent recreation and environmental education and interpretation could be more successful than in the other alternatives. Land acquisitions within the approved acquisition boundary would be based on importance of the habitat for public use. The refuge headquarters and visitor center would be developed for public use activities such as interpretation and outreach.
After the comment period ends, we will analyze the comments and address them.
Before including your address, phone number, email 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.
This notice is published under the authority of the National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105–57).
Fish and Wildlife Service, National Park Service, Interior.
Notice of intent; request for comments.
This notice advises the public that the U.S. Fish and Wildlife Service (FWS) and the National Park Service (NPS), U.S. Department of the Interior, as lead agencies, intend to gather information necessary to complete detailed planning and prepare associated documents under the National Environmental Policy Act (NEPA) and its implementing regulations, in order to consider additional land protection on the Missouri River from Fort Randall Dam to Sioux City, Iowa. The FWS and NPS are furnishing this notice in compliance with the National Wildlife Refuge System Administration Act of 1966, as amended, and the National Park Service Organic Act of 1916, as amended, to advise other agencies, Tribal governments, and the public of our intentions and to obtain suggestions and information on the scope of issues to include in the environmental documents. Special mailings, newspaper articles, and other media announcements will inform people of the opportunities for input throughout the planning process.
We are soliciting written comments and will hold public scoping meetings in February 2012. Information on meeting dates and times will be available at
Send your comments or requests for more information by any of the following methods.
Nick Kaczor, Planning Team Leader, Division of Refuge Planning, USFWS, P.O. Box 25486, DFC, Denver, CO 80225.
With this notice, the FWS and NPS, as lead agencies, propose to complete detailed planning on a joint comprehensive conservation strategy and land protection plan (LPP) for the Niobrara Confluence and Ponca Bluffs areas of the Missouri River in southeast South Dakota and northeast Nebraska aimed to improve floodplain management. The LPP would develop a proposal for a comprehensive conservation strategy, including a plan aimed at enhancing wildlife habitat, increasing recreational opportunities, and improving floodplain management within the study area, by working with willing landowners to strategically protect land through acquisition and conservation easements.
The Niobrara Confluence segment between Fort Randall Dam and Lewis and Clark Lake is one of the last portions of the middle Missouri River that remain un-channelized, relatively free-flowing, and undeveloped. This area of the Missouri River's main channel in the old, wider river valley contains important habitat for at least 60 native and 26 sport fish. In addition, the riparian woodlands and island complexes are important for approximately 25 year-round bird species and 115 species of migratory birds, including piping plovers, least terns, and bald eagles.
The Ponca Bluffs segment between Gavins Point Dam and Sioux City is a diverse, relatively unaltered, riverine/floodplain ecosystem characterized by a main channel, braided channels, wooded riparian corridor, pools, chutes, sloughs, islands, sandbars, backwater areas, wetlands, natural floodplain and upland forest communities, pastureland, and croplands. This area also supports a wide variety of wildlife and fisheries resources similar to the Niobrara Confluence segment.
The National Wildlife Refuge System Improvement Act of 1997 outlines six priority public uses (hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation) that are to be facilitated on national wildlife refuges, where compatible.
The river reaches are components of the National Wild and Scenic River System as designated by Congress in 1978 and 1991 under the Wild and Scenic River Act (Pub. L. 90–542, as amended). The National Park Service is the river administering agency and is tasked to protect and enhance the outstandingly remarkable recreational, fish and wildlife, and scenic or similar values. The Wild and Scenic Rivers Act specifies that these river reaches shall be preserved in free-flowing condition and that their Outstandingly Remarkable Values shall be protected for the benefit and enjoyment of present and future generations.
Public feedback into the land protection planning process is essential to ensure that the FWS and NPS include society's input into the proposed project. FWS and NPS will request public review and comment throughout the planning process.
The Missouri River basin encompasses 530,000 square miles—approximately one-sixth of the continental United States. The main stem, stretching from Three Forks, Montana, to St. Louis, Missouri, is the longest river in the United States, at more than 2,300 miles long. Historically, the Missouri River was a dynamic ecosystem, characterized by a changing interplay of open free-flowing, braided channel, sandbar, prairie, wetland, and forest habitats. Although manmade structures and activities have altered many of these natural processes, important habitats still remain, for a rich diversity of plants and animals. The dynamic nature of the Missouri River means that habitats change on a daily, seasonal, annual, and long-term basis. Erosive forces constantly transport sediment down the river, creating and modifying habitat and removing terrestrial vegetation from some areas while creating suitable conditions for new plants to grow in other areas. Seasonal river flow patterns flood river-bottom wetlands and maintain chutes, backwaters, and lakes in the floodplain that provide important wildlife breeding and foraging habitat. The combination of open water, floodplain wetlands, and river vegetation is particularly important for the large number of migratory birds that use the Missouri River during spring and fall migrations.
Despite significant alterations of impoundment and stabilization, portions of the Missouri River have shown resiliency, exhibiting numerous historical characteristics witnessed by Lewis and Clark during their explorations in the early 1800s. The FWS and NPS will work with local communities and willing landowners to conserve significant stretches of the Missouri River. The opportunity to preserve and potentially improve important processes and habitats for fish and wildlife will provide benefits to visitors, neighbors, and local communities of these areas now and into the future. The project proposal is designed to improve conditions within the channel migration zone, retaining those habitat characteristics important to federally managed species such as pallid sturgeon, least tern, and piping plover, while potentially mitigating flooding impacts in the future. In addition, the project proposal is also designed to enhance recreation opportunities such as boating, fishing, hunting, and camping, while increasing scenic values along the river and protecting cultural resources.
Before including your address, phone number, email address, or other personal identifying information in your
The FWS and NPS are furnishing this notice in compliance with the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd–668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997; the National Park Service Organic Act of 1916, as amended; and the National Environmental Policy Act (42 U.S.C. 4321
Bureau of Land Management, Interior.
Notice of Public Meetings.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM) Dominguez-Escalante Advisory Council (Council) will meet as indicated below.
Meetings will be held March 21, 2012; April 4, 2012; and May 2, 2012. All meetings will begin at 3 p.m. and will normally adjourn at 6 p.m. These meetings are in addition to the already-scheduled meeting on March 7, 2012, which was advertised through a separate notice. Any adjustments to duration of meetings will be advertised on the Dominguez-Escalante RMP Web site,
Meetings on March 21 and May 2 will be held at the Delta County Courthouse, Room 234, 501 Palmer, Delta, Colorado. The meeting on April 4 will be held at the Mesa County Courthouse Annex, Training Room A, 544 Rood, Grand Junction, Colorado.
Katie Stevens, Advisory Council Designated Federal Official, 2815 H Road, Grand Junction, CO 81506. Phone: (970) 244–3049.
The 10-member Council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with the resource management planning process for the Dominguez-Escalante National Conservation Area and Dominguez Canyon Wilderness.
Topics of discussion during the meeting may include informational presentations from various resource specialists working on the resource management plan, as well as Council reports relating to the following topics: recreation, fire management, land-use planning process, invasive species management, travel management, wilderness, land exchange criteria, cultural resource management and other resource management topics of interest to the Council raised during the planning process.
These meetings are anticipated to occur monthly, and may occur as frequently as every two weeks during intensive phases of the planning process. Dates, times and agendas for additional meetings may be determined at future Advisory Council Meetings, and will be published in the
These meetings are open to the public. The public may present written comments to the Council. Each formal Council meeting will have time allocated at the beginning and end of each meeting for hearing public comments. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited at the discretion of the chair.
Bureau of Land Management, Interior.
Notice of Public Meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM) Western Montana Resource Advisory Council (RAC) will meet as indicated below.
The meeting will be held March 14, 2012, beginning at 9 a.m. with a 30-minute public comment period and will adjourn at 3 p.m.
The meeting will be in the BLM's Butte Field Office, 106 N. Parkmont, in Butte, MT.
This 15-member council advises the Secretary of the Interior on a variety of management issues associated with public land management in Montana. During these meetings the council will participate in/discuss/act upon several topics, including the BLM's Sage Grouse Conservation Strategy, a report from the RAC's recreation fee subgroup, and reports from the Butte, Missoula and Dillon field offices.
All RAC meetings are open to the public. The public may present written comments to the RAC. Each formal RAC meeting will also have time allocated for hearing public comments. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited.
David Abrams, Western Montana Resource Advisory Council Coordinator, Butte Field Office, 106 North Parkmont, Butte, MT 59701, 406–533–7617,
Bureau of Land Management, Interior.
Public Land Order.
This order withdraws 15 acres of National Forest System land from location and entry under the United States mining laws for a period of 20 years to protect the unique recreational and historical interpretive integrity of the Red Cloud Campground within the Cibola National Forest, and to protect a capital investment in the recreation area of approximately $750,000 in Federal funds.
Doug William, Forest Supervisor, Cibola National Forest, 2113 Osuna Road NE., Suite A., Albuquerque, New Mexico 87113, 505–346–3869, or Angel Mayes, Roswell Field Office Manager, Bureau of Land Management, 2909 W. Second Street, Roswell, New Mexico 88201, 505–346–3869. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to contact either of the above individuals during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or questions with either of the above individuals. You will receive a reply during normal business hours.
The United States Forest Service will manage the land to protect the capital investment expended to develop the Red Cloud Campground facility and the unique recreational and historical interpretive integrity of the Red Cloud Campground within the Cibola National Forest.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714, it is ordered as follows:
1. Subject to valid existing rights, the following described National Forest System land is hereby withdrawn from location and entry under the United States mining laws, but not from leasing under the mineral leasing laws, to protect the unique recreational and historical interpretative integrity of the Red Cloud Campground: Cibola National Forest.
The area described contains 15 acres, more or less, in Lincoln County.
2. The withdrawal made by this order does not alter the applicability of the general land laws governing the use of National Forest System land under lease, license, or permit, or governing the disposal of their mineral or vegetative resources other than under the mining laws.
3. This withdrawal will expire 20 years from the effective date of this order, unless, as a result of a review conducted before the expiration date pursuant to Section 204(f) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714(f) the Secretary determines that the withdrawal shall be extended.
43 CFR 2310.3–3(b)(1).
National Park Service, Interior.
Notice of Intent to Prepare an Environmental Impact Statement for the Wilderness Management Plan for the Jimbilnan, Pinto Valley, Black Canyon, Eldorado, Ireteba Peaks, Nellis Wash, Spirit Mountain, and Bridge Canyon Wilderness Areas, Lake Mead National Recreation Area, Nevada.
Pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C), the National Park Service (NPS) is the lead agency for the preparation of an environmental impact statement (EIS) for a wilderness management plan for eight wilderness areas in Lake Mead National Recreation Area, three of which are partially located on adjacent Bureau of Land Management (BLM) lands. The BLM will serve as a cooperating agency in the preparation of the EIS. The wilderness management plan (plan) will establish management goals for these wilderness areas, develop long term direction for monitoring and preserving wilderness character (
A range of alternatives for stewardship of these eight wilderness areas, consistent with the requirements of the Wilderness Act of 1964, will be developed through this planning process and will include at least no-action and preferred alternatives. Issues the EIS/plan is expected to address will include identifying appropriate uses for these areas; providing for access within, and information about, the wilderness areas while protecting wilderness character; providing for reasonable use of Spirit Mountain and adjacent areas in a manner meeting tribal needs and concerns; restoring disturbed areas within the wilderness areas; and coordinating agency management efforts. The EIS will evaluate and compare the potential environmental consequences of all the alternatives, and appropriate mitigation strategies will be included. The “environmentally preferred” alternative will also be identified.
In April, 2010 the NPS and BLM released an Environmental Assessment for the proposed plan. Issues and concerns emerged in regards to appropriateness of use of fixed anchors (e.g., bolting) in wilderness, and conflicts between recreational use and cultural resource protection and Tribal interests could not be resolved. As a
All interested persons, organizations, and agencies are encouraged to submit comments and suggestions on issues and concerns that should be addressed in preparing the plan/EIS, and the range of appropriate alternatives that should be examined. All prior comments and information received in regards to the 2010 Environmental Assessment for the wilderness management plan will be carried forward and fully considered in developing the Draft EIS.
The NPS in cooperation with the BLM is beginning public scoping via a letter to state and federal agencies, American Indian tribes, local and regional governments, organizations and businesses, researchers and institutions; the congressional delegation; and other interested members of the public. Written comments concerning the scope of the plan/EIS and submittal of relevant environmental information must be postmarked or transmitted not later than March 16, 2012.
Interested individuals, organizations, and other entities wishing to provide input to this phase of developing the plan/EIS may mail or email comments to Lake Mead National Recreation Area Wilderness Management Plan, National Park Service, Denver Service Center—Planning, P.O. Box 25287, Denver, CO 80225 (or via the Internet at
Before including your address, phone number, email 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.
Jim Holland, NPS Park Planner, at the Lake Mead National Recreation Area address above. Telephone: (702) 293–8986. Email:
Office of Surface Mining Reclamation and Enforcement.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSM) is announcing that the information collection request for Surface Mining Permit Applications—Minimum Requirements for Reclamation and Operation Plan, has been forwarded to the Office of Management and Budget (OMB) for review and comment. The information collection request describes the nature of the information collection and the expected burden and cost.
OMB has up to 60 days to approve or disapprove the information collections but may respond after 30 days. Therefore, public comments should be submitted to OMB by March 16, 2012, in order to be assured of consideration.
Submit comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, Department of the Interior Desk Officer, via email at
To receive a copy of the information collection request, contact John Trelease at (202) 208–2783, or electronically to
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104–13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. OSM has submitted a request to OMB to renew its approval of the collection of information contained in 30 CFR Part 780—Surface Mining Permit Applications—Minimum Requirements for Reclamation and Operation Plan. OSM is requesting a 3-year term of approval for the information collection activity.
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. The OMB control number for this collection of information is 1029–0036, and is displayed in 30 CFR 780.10.
As required under 5 CFR 1320.8(d), a
Sections 507(b), 508(a), 510(b), 515(b) and (d), and 522 of Public Law 95–87 require applicants to submit operations and reclamation plans for coal mining activities. Information collection is needed to determine whether the plans will achieve the reclamation and environmental protections pursuant to the Surface Mining Control and Reclamation Act. Without this information, Federal and State regulatory authorities cannot review and approve permit application requests.
Send comments on the need for the collections of information for the performance of the functions of the agency; the accuracy of the agency's burden estimates; ways to enhance the quality, utility and clarity of the information collections; and ways to minimize the information collection burdens on respondents, such as use of automated means of collections of the information, to the individual listed in
Before including your address, phone number, email 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.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received an amended complaint entitled Certain Consumer Electronics and Display Devices and Products Containing Same, DN 2858; the Commission is soliciting comments on any public interest issues raised by the amended complaint or complainant's filing under section 210.8(b) of the Commission's Rules of Practice and Procedure (19 CFR 210.8(b)).
James R. Holbein, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission has received an amended complaint and a submission pursuant to sections 210.8(b) and 210.14(a) of the Commission's Rules of Practice and Procedure filed on behalf of Graphics Properties Holdings, Inc. on January 30, 2012. The amended complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain consumer electronics and display devices and products containing same. The complaint names as respondents Research In Motion Ltd. of Canada; Research In Motion Corp. of TX; HTC Corporation of Taiwan; HTC America, Inc. of WA; LG Electronics, Inc. of South Korea; LG Electronics U.S.A., Inc. of NJ; LG Electronics MobileComm U.S.A. Inc. of CA; Apple Inc. of CA; Samsung Electronics Co., Ltd. of South Korea; Samsung Electronics America, Inc. of NJ; Samsung Telecommunications America L.L.C. of TX; Sony Corporation of Japan; Sony Corporation of America of NY; Sony Electronics, Inc. of CA; Sony Ericsson Mobile of Sweden; Sony Ericsson Mobile Communications (USA) Inc. of GA; Motorola Mobility, Inc. of IL; and Motorola Mobility Holdings, Inc. of IL.
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) Identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) Indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) Explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 2858”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has issued an advisory opinion in the above-captioned investigation.
Jean Jackson, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–3104. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on May 30, 2008, based on a complaint filed by John Mezzalingua Associates, Inc., d/b/a PPC, Inc. of East Syracuse, New York (“PPC”). 73 FR 31145 (May 30, 2008). The complaint alleged violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) (“Section 337”) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain coaxial cable connectors and components thereof and products containing the same by reason of infringement of various patents, including U.S. Patent No. 6,558,194 (“the `194 patent”). The notice of institution named eight respondents. After institution, two respondents were terminated based on consent orders and four respondents were found to be in default (“defaulting respondents”). Two respondents, Fu-Ching Technical Industry, Co., Ltd., and Gem Electronics, Inc., remained active.
On October 13, 2009, the Administrative Law Judge (“ALJ”) issued his final initial determination (“ID”) and recommended determination on remedy and bonding. The ALJ found a violation of section 337 by the defaulting respondents in connection with the `194 patent. On December 14, 2009, the Commission determined to review the final ID in part, but the Commission did not review the ALJ's determination with respect to the `194 patent. The Commission issued a general exclusion order on March 31, 2010 with respect to the `194 patent based on a finding of violation of Section 337 by the defaulting respondents.
On September 12, 2011, non-respondent, Holland Electronics, LLC (“Holland”) filed a request for an advisory opinion under Commission Rule 210.79 (19 CFR 210.79) that would declare that its coaxial cable connectors, utilizing an axial but not radial compression for deformation, are outside of the scope of the Commission's March 31, 2010 general exclusion order. Holland further requested that the Commission conduct all proceedings related to the advisory opinion in an expedited manner and not refer the matter to an administrative law judge (ALJ).
On October 31, 2011, the Commission determined to institute an advisory opinion proceeding based on Holland's request. 76 FR 68504 (November 4, 2011). The Commission directed PPC and the Commission Investigative Attorney (“IA”) to state their views regarding whether they oppose Holland's request for an advisory opinion that its subject connectors are not covered by the March 31, 2010, general exclusion order, and if so, whether they believe the matter should be referred to an ALJ.
The Commission has reviewed the parties' submissions and has determined to grant Holland's request for an advisory opinion that its products embodying the design set forth in Exhibit H to Holland's advisory opinion request, and specifically the products listed in Exhibit I to Holland's request that embody that design, are not covered by the Commission's general exclusion order issued on March 31, 2010.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210.79(a) of the Commission's Rules of Practice and Procedure (19 CFR 210.79(a)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) initial determination (“ID”) (Order No. 52) granting a joint motion to terminate the investigation as to respondent Electric Motor Service, Inc. (EMS) of Logan, West Virginia. The Commission is also requesting written submissions concerning a remedy against a defaulted respondent.
Jean H. Jackson, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–3104. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436,
The Commission instituted this investigation on January 19, 2011, based on a complaint filed by Remy International, Inc. and Remy Technologies, L.L.C. both of Pendleton, Indiana (collectively, “Remy”). 76 FR 3158 (Jan. 19, 2011). The complaint alleges violations of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain starter motors and alternators that by reason of infringement of certain claims of U.S. Patent Nos. 5,105,114 (“the '114 patent”); 5,252,878 (“the '878 patent”); 5,268,605 (“the '605 patent); 5,295,404 (“the '404 patent”); 5,307,700 (“the '700 patent”); 5,315,195 (“the '195 patent”); and 5,453,648 (“the '648 patent”). On May 13, 2011, the Commission determined not to review an ID granting Remy's motion to amend the complaint and notice of investigation to add two additional respondents. Notice (May 13, 2011). The notice of investigation, as amended, names ten respondents.
On June 30, 2011, the Commission terminated the investigation as to the `114 patent. Notice (June 30, 2011). On the same date, the Commission terminated Wuxi Susan Auto Parts Company of Wuxi City, China from the investigation based on a settlement agreement. Notice (June 30, 2011). On July 18, 2011, the Commission terminated Yun Shen U.S.A., Inc. of San Francisco, California based on a settlement agreement. Notice (July 18, 2011). On July 28, 2011, the Commission terminated Linhai Yongei of Linhai City, China based on a settlement agreement. Notice (July 28, 2011).
On August 27, 2011, the Commission terminated Yongkang Boyu Auto Motor Company of Yongkang, China based on a consent order. Notice (Aug. 27, 2011). On October 27, 2011, the Commission terminated the investigation in part as to respondent Wetherill Associates, Inc. d/b/a WAI Global of Fort Lauderdale, Florida (“Wetherill”) based on a consent order that is limited to the `605, `404, `700 and `648 patents, and that excludes the `878 and `195 patents. Notice (Oct. 27, 2011). On December 2, 2011, the Commission terminated the investigation as to respondent Metric Sales & Engineering, Inc. of Northfield, Illinois based on a consent order. Notice (Dec. 2, 2011). On December 29, 2011, the Commission terminated the investigation as to respondent Wan Li Industrial Development, Inc. of South El Monte, California based on a settlement agreement. Notice (Dec. 29, 2011). Also on December 29, 2011, the Commission terminated the investigation as to Wetherill based on a settlement agreement. Notice (Dec. 29, 2011).
On January 14, 2012, the Commission found respondent American Automotive Parts, Inc. (AAP) of Niles, Illinois in default. Notice (Jan. 12, 2012). On January 24, 2012, the Commission terminated the investigation as to respondent Motorcar Parts of America, Inc. of Torrance, California based on a settlement agreement. Notice (Jan. 24, 2012).
On January 20, 2012, the ALJ issued the subject ID, granting a joint motion by Remy and EMS to terminate EMS based on a settlement agreement. The Commission investigative attorney supported the motion. The ALJ found that the motion was in compliance with Commission rule 210.21(b)(1), 19 CFR 210.21(b)(1) and that termination of the investigation as to EMS presented no public interest concerns under Commission rule 210.50(b)(2), 19 CFR 210.50(b)(2). No petitions for review of this ID were filed. The Commission has determined not to review the ID.
Section 337(g)(1) (19 U.S.C. 1337(g)(1)) and Commission Rule 210.16(c) (19 CFR 210.16(c)) authorize the Commission to order limited relief against a respondent found in default, unless after consideration of the public interest factors, it finds that such relief should not issue. The Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue one or more cease and desist orders that could result in the respondent being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered against AAP. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry are either adversely affecting it or likely to do so. For background,
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist order would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the President has 60 days to approve or disapprove the Commission's action. During this period, the subject articles would be entitled to enter the United States under bond, in an amount determined by the Commission and prescribed by the Secretary of the Treasury. The Commission is therefore interested in receiving submissions concerning the amount of the bond that should be imposed if a remedy is ordered.
Persons filing written submissions must file the original document and 8 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Any person desiring to submit a document (or portion thereof) to the Commission in confidence must request confidential treatment unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of the
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in sections 210.16, 210.42, and 210.50 of the Commission's Rules of Practice and Procedure, 19 CFR 210.16, 210.42, and 210.50.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 30) of the presiding administrative law judge (“ALJ”) terminating the above-captioned investigation based on withdrawal of the complaint.
Clint Gerdine, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708–2310. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on February 25, 2011, based on a complaint filed by Femina Pharma Incorporated of Miami, Florida. 76 FR 17444. The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain vaginal birth control devices by reason of infringement of certain claims of U.S. Patent No. 6,086,909. The complaint further alleges the existence of a domestic industry. The Commission's notice of investigation named the following respondents: The Canamerican Drugs Inc., The Canamerican Global, Inc., Canadian Med Service, Panther Meds Inc., Canada Drugs Online, Canadadrugs.com LP, and North Drug Store, collectively of Winnipeg, Manitoba, Canada; Drug World Canada, CanDrug Health Solutions Inc., Big Mountain Drugs, BestBuyRx.com, and Blue Sky Drugs, collectively of Surrey, British Columbia, Canada; ABC Online Pharmacy of Burnaby, British Columbia, Canada; Canada Pharmacy of Blaine, Washington (collectively, “the non-participating respondents”); and Merck & Co., Inc. of Whitehouse Station, New Jersey; Schering Plough Corporation of Kenilworth, New Jersey; CVS Caremark Corporation (“CVS Caremark”) and CVS Pharmacy, Inc., both collectively of Woonsocket, Rhode Island; Wal-Mart Stores, Inc. of Bentonville, Arkansas; Walgreens Co. of Deerfield, Illinois; Organon USA, Inc. of Durham, North Carolina; and N.V. Organon of Oss, Netherlands.
On June 3, 2011, the Commission issued notice of its determination not to review the ALJ's ID granting complainant's and CVS Caremark's joint motion to terminate the investigation as to CVS Caremark. On August 17, 2011, the Commission issued notice of its determination not to review the ALJ's ID finding the non-participating respondents in default.
On January 17, 2012, complainant moved to terminate the investigation as to all respondents, including those previously found in default, on the basis of withdrawal of its complaint. No party opposed the motion.
The ALJ issued the subject ID on January 20, 2012, granting the motion for termination of the investigation. He found that the motion for termination satisfied Commission rule 210.21(a). No party petitioned for review of the ID. The Commission has determined not to review the ID, and the investigation is terminated.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in sections 210.21 and 210.42(h) of the Commission's Rules of Practice and Procedure, 19 CFR 210.21, 210.42(h).
By order of the Commission.
Notice is hereby given that on February 9, 2012, a proposed Consent Decree in
In that lawsuit, the United States and State of Nebraska seek to recover response costs pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) in connection with the U.S. Environmental Protection Agency's continuing cleanup of the Omaha Lead Superfund Site. The proposed consent decree will require NL Industries, Inc. to pay $624,000 to the Hazardous Substance Superfund in partial reimbursement of the United States' response costs and pay $26,000 to the Nebraska Department of Environmental Quality.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either emailed to
During the public comment period, the Consent Decree, may also be examined on the following Department of Justice Web site,
Employment and Training Administration, Labor.
Notice.
This notice announces a change in status of the payable periods under the EB program for New Mexico.
The following change has occurred since the publication of the last notice regarding the State's EB status:
• The Federal authorization to have a three year look-back was recently extended to February 29, 2012. However, New Mexico used a hard end date in state law for the expiration of its three year look-back provision. As a result, New Mexico's three year look-back legislation has expired. With the expiration of the three year look-back, New Mexico failed to meet the criteria to remain triggered “on” to EB with the week ending January 7, 2012 and the payable period in the EB program for New Mexico concluded January 28, 2012.
The trigger notice covering state eligibility for the EB program can be found at:
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 Unemployment Insurance, 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 email:
National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that the agency proposes to request use of a new information collection. This information collection is an order form for registrants or other authorized individuals to request information from or copies of Selective Service System (SSS) records. The public is invited to comment on the proposed information collections pursuant to the Paperwork Reduction Act of 1995.
Written comments must be received on or before April 16, 2012 to be assured of consideration.
Comments should be sent to: Paperwork Reduction Act Comments (NHP), Room 4400, National Archives and Records Administration, 8601 Adelphi Rd, College Park, MD 20740–6001; or faxed to (301) 713–7409; or electronically mailed to
Requests for additional information or copies of the proposed information collections and supporting statements should be directed to Tamee Fechhelm at telephone number (301) 837–1694, or fax number (301) 713–7409.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13), NARA invites the general public and other Federal agencies to comment on proposed information collections. The comments and suggestions should address one or more of the following points: (a) Whether the proposed information collection is necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA'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; and (d) ways to minimize the burden of the collection of information on all respondents, including the use of information technology; and (e) whether small businesses are affected by this collection. The comments that are submitted will be summarized and included in the NARA request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this notice, NARA is soliciting comments concerning the following information collections:
Nuclear Regulatory Commission.
Draft regulatory guide; request for comment
The U.S. Nuclear Regulatory Commission (NRC) is issuing for public comment draft regulatory guide (DG) DG–1271 “Decommissioning of Nuclear Power Reactors.” This guide describes a method NRC considers acceptable for use in decommissioning power reactors.
Submit comments by April 16, 2012. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. Although a time limit is given, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
You may access information and comment submissions related to this document, which the NRC possesses and is publicly-available, by searching on
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
James C. Shepherd, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: 301–415–6712 or email
Please refer to Docket ID NRC–2012–0035 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, by the following methods:
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•
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Please include Docket ID NRC–2012–0035 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information in their comment submissions that they do not want to be publicly disclosed. Your request should state that the NRC will not edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC is issuing for public comment a draft guide in the agency's “Regulatory Guide” series. This series was developed to describe and make available to the public such information as methods that are acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
DG–1271 is proposed Revision 1 of Regulatory Guide 1.184, “Decommissioning of Nuclear Power Reactors,” dated July 2000. This proposed revision of Regulatory Guide 1.184 describes a method that the staff of the NRC considers acceptable for use in complying with the NRC's regulations relating to the decommissioning process for nuclear power reactors.
As discussed in the “Implementation” section of DG–1271, the NRC has no current intention to impose this regulatory guide on holders of current operating licenses or combined licenses. Accordingly, the issuance of this regulatory guide would not constitute “backfitting” as defined in Title 10 of the Code of Federal Regulations (10 CFR) 50.109(a)(1) of the Backfit Rule or be otherwise inconsistent with the applicable issue finality provisions in 10 CFR part 52.
This regulatory guide may be applied to applications for operating licenses and combined licenses docketed by the NRC as of the date of issuance of the final regulatory guide, as well as future applications for operating licenses and combined licenses submitted after the issuance of the regulatory guide. Such action would not constitute backfitting as defined in 10 CFR 50.109(a)(1) or be otherwise inconsistent with the applicable issue finality provision in 10 CFR part 52, inasmuch as such applicants or potential applicants are not within the scope of entities protected by the Backfit Rule or the
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of availability.
Araceli T. Billoch Colón, Project Manager, Licensing Branch II–2, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Rockville, Maryland, 20822. Telephone: (301) 415–3302; fax number: (301) 415–1032; email:
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an exemption pursuant to Title 10 of the Code of Federal Regulations (10 CFR) 50.46, “Acceptance Criteria for Emergency Core Cooling Systems for Light-Water Nuclear Power Reactors,” and 10 CFR part 50, appendix K, “ECCS [Emergency Core Cooling System] Evaluation Models,” to allow for the use of M5
The proposed action would exempt the licensee from certain requirements of 10 CFR 50.46 and appendix K to 10 CFR part 50. Specifically, 10 CFR 50.46, paragraph (a)(1)(i) provides requirements for reactors containing uranium oxide fuel pellets clad in either zircaloy or ZIRLO. Additionally, appendix K to 10 CFR part 50 presumes the use of zircaloy or ZIRLO fuel cladding when doing calculations for energy release, cladding oxidation, and hydrogen generation after a postulated loss-of-coolant accident. Therefore, both of these regulations state or assume that either zircaloy or ZIRLO is used as the fuel rod cladding material. The proposed exemption would allow the licensee use of M5
The proposed exemption is needed to allow the licensee the use of M5
The NRC has completed its evaluation of the proposed action and concludes that there are no environmental impacts associated with the proposed exemption. The details of the NRC staff's safety evaluation will be provided in the exemption that, if approved by the NRC, will be issued as part of the letter to the licensee approving the exemption to the regulation.
The proposed action will not significantly increase the probability or consequences of accidents. No changes are being made in the types of effluents that may be released offsite. There is no significant increase in the amount of any effluent released offsite. There is no significant increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with the proposed action.
With regard to potential nonradiological impacts, the proposed action does not result in changes to land use or water use, or result in changes to the quality or quantity of nonradiological effluents. No changes to the National Pollutant Discharge Elimination System permit are needed. No effects on the aquatic or terrestrial habitat in the vicinity of the plant, or to threatened, endangered, or protected species under the Endangered Species Act, or impacts to essential fish habitat covered by the Magnuson-Stevens Act are expected. No impacts to the air or ambient air quality are expected. There are no impacts to historic and cultural resources. In addition, there are also no known socioeconomic or environmental justice impacts associated with the proposed action. Therefore, there are no significant nonradiological environmental impacts associated with the proposed action.
Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the NRC staff considered denial of the proposed action (i.e., the “no action” alternative). Denial of the exemption request would result in no change in current environmental impacts. If the proposed action was denied, the licensee would have to comply with the ECCS rules in 10 CFR 50.46 and appendix K to 10 CFR part 50 and would not be able to use M5
The action does not involve the use of any different resources than those considered in the Final Environmental Statement for HNP, NUREG–0972, dated October 31, 1983, as supplemented through the “Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Shearon Harris Nuclear Power Plant, Unit 1—Final Report (NUREG–1437, Supplement 33).”
In accordance with its stated policy, on January 19, 2012 the NRC staff consulted with the North Carolina State official, Mr. Lee Cox of the Division of Radiation Protection, with the North Carolina Department of Environment and Natural Resources, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
Documents related to this action are available electronically at the NRC Library at
These documents may also be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O 1 F21, One White Flint North, 11555 Rockville Pike Rockville, MD 20852. The PDR reproduction contractor will copy documents for a fee.
For the Nuclear Regulatory Commission.
Entergy Nuclear Operations, Inc. (Entergy or the licensee) is the holder of Facility Operating License No. DPR–64, which authorizes operation of Indian Point Nuclear Generating Unit 3 (IP3). The license provides, among other things, that the facility is subject to all rules, regulations, and orders of the U.S. Nuclear Regulatory Commission (NRC or the Commission) now or hereafter in effect.
IP3 is a pressurized-water reactor located approximately 24 miles north of the New York City boundary line on the east bank of the Hudson River in Westchester County, New York.
Title 10 of the Code of Federal Regulations (10 CFR) 50.48(b), requires that nuclear power plants that were licensed to operate before January 1, 1979, satisfy the requirements of 10 CFR part 50, Appendix R, “Fire Protection Program for Nuclear Power Facilities Operating Prior to January 1, 1979,” Section III.G, “Fire protection of safe shutdown capability.” The circuit separation and protection requirements being addressed in this request for exemption are specified in Section III.G.2. Since IP3 was licensed to operate before January 1, 1979, IP3 is required to meet Section III.G.2 of Appendix R to 10 CFR part 50.
The underlying purpose of Section III.G of Appendix R to 10 CFR part 50 is to establish reasonable assurance that safe shutdown (SSD) of the reactor can be achieved and maintained in the event of a postulated fire in any plant area. Circuits which could cause maloperation or prevent operation of redundant trains of equipment required to achieve and maintain hot shutdown conditions as a result of fire in a single fire area must be protected in accordance with III.G.2. If conformance with the technical requirements of III.G.2 cannot be assured in a specific fire area, an alternative or dedicated shutdown capability must be provided in accordance with Section III.G.3, or an exemption obtained in accordance with 10 CFR 50.12, “Specific exemptions.”
By letter dated March 6, 2009, Entergy requested an exemption from the requirements of 10 CFR part 50, Appendix R in accordance with 10 CFR 50.12. Specifically, Entergy requested an exemption to allow the use of Operator Manual Actions (OMAs) in lieu of meeting certain technical requirements of III.G.2 in Fire Areas AFW–6, ETN–4{1}, ETN–4{3}, PAB–2{3}, PAB–2{5}, TBL–5, and YARD–7. The table below provides the dates and topics of the submittals related to this request.
III.G.2 establishes various protection options for providing reasonable assurance that at least one train of systems, equipment and cabling required to achieve and maintain hot shutdown conditions remains free of fire damage. In lieu of providing one of the means specified in the regulation, Entergy requests an exemption from III.G.2 to allow the use of OMAs to achieve and maintain hot shutdown conditions in the event of fire in seven fire areas at IP3; specifically, Fire Areas AFW–6, ETN–4{1}, ETN–4{3}, PAB–2{3}, PAB–2{5}, TBL–5, and YARD–7.
Pursuant to 10 CFR 50.12, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 50 when: (1) The exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security; and (2) when special circumstances are present. The licensee stated that special circumstances exist because the application of the regulation in this particular circumstance is not necessary to achieve the underlying purpose of the rule.
In accordance with 10 CFR 50.48(b), nuclear power plants licensed to operate before January 1, 1979, are required to meet Section III.G, of 10 CFR part 50, Appendix R. The underlying purpose of Section III.G of 10 CFR part 50, Appendix R, is to ensure that the ability to achieve and maintain SSD is preserved following a fire event. The regulation intends for licensees to accomplish this by extending the concept of defense-in-depth to:
• Prevent fires from starting.
• Rapidly detect, control, and extinguish promptly those fires that do occur.
• Provide protection for structures, systems, and components important to safety so that a fire that is not promptly extinguished by the fire suppression activities will not prevent the SSD of the plant.
III.G.2 requires one of the following means to ensure that a redundant train of SSD cables and equipment is free of fire damage, where redundant trains are located in the same fire area outside of primary containment:
a. Separation of cables and equipment by a fire barrier having a 3-hour rating;
b. Separation of cables and equipment by a horizontal distance of more than 20 feet with no intervening combustibles or fire hazards and with fire detectors and an automatic fire suppression system installed in the fire area; or
c. Enclosure of cables and equipment of one redundant train in a fire barrier having a 1-hour rating and with fire detectors and an automatic fire suppression system installed in the fire area.
In its March 6, 2009, and October 1, 2009, submittals, Entergy requested an exemption from certain technical requirements of III.G.2 to the extent that one of the redundant trains of systems necessary to achieve and maintain hot shutdown is not maintained free of fire damage in accordance with one of the required means prescribed in III.G.2 in Fire Areas AFW–6, ETN–4{1}, ETN–4{3}, PAB–2{3}, PAB–2{5}, TBL–5, and YARD–7.
Each OMA included in this review consists of a sequence of tasks that occur in various fire areas. The OMAs are initiated upon confirmation of a fire in a particular fire area, which the licensee has further subdivided into fire zones. Listed in the order of the fire area of fire origin, the OMAs included in this review are as follows:
In their submittals, the licensee described elements of their fire protection program that provide their justification that the concept of defense-in-depth that is in place in the above fire areas is consistent with that intended by the regulation. To accomplish this, the licensee utilizes various protective measures to accomplish the concept of defense-in-depth. Specifically, the licensee stated that the purpose of their request was to credit the use of OMAs, in conjunction with other defense-in-depth features, in lieu of the separation and protective measures required by III.G.2 for a fire in the fire areas stated above.
In their March 6, 2009, and October 1, 2009, submittals, the licensee provided an analysis that described how fire prevention is addressed for each of the fire areas for which the OMAs may be required because the separation requirements for equipment and electrical circuits required by III.G.2 are not met. Specifically, the licensee stated that noncombustible materials have been used to the maximum extent practicable and that the introduction of combustible materials into areas with safety-related equipment, including Fire Areas AFW–6, ETN–4{1}, ETN–4{3}, PAB–2{3}, and PAB–2{5} is strictly controlled by administrative procedures. The administrative procedures govern the handling, storage, and limitations for use of ordinary combustible materials, combustible and flammable gases and liquids, and other combustible supplies. In addition, the licensee stated that with the exception of Fire Areas TBL–5 and YARD–7, all of the fire areas identified in the licensee's request are subject to the Indian Point Energy Center Transient Combustible Control Program, as implemented via procedure EN–DC–161, “Control of Combustibles,” and are controlled as Level 2 combustible control areas. The licensee also stated that Fire Area TBL–5, consisting of the Turbine Building and certain adjacent fire zones, does not contain safety-related structures, systems or components (SSCs) and is not subject to the explicit transient combustible controls of EN–DC–161 but that procedure OAP–017, “Plant Surveillance and Operator Rounds” includes inspection guidelines for operator rounds, which include monitoring for general area cleanliness, and for any housekeeping problems that may present a fire or safety concern. Consequently, operator rounds performed each shift provide for the monitoring of Area TBL–5 and other plant areas for accumulations of combustibles that could present an unacceptable fire safety challenge. Similarly, procedure ENMA–132, “Housekeeping” includes guidance for monitoring general area cleanliness as well as monitoring for accumulations of combustibles. The licensee stated that the administrative controls are described in the IP3 Fire Protection Program (FPP), which is incorporated by reference into the Updated Final Safety Analysis Report.
The licensee stated that both thermoplastic and thermoset low-voltage power, control, and instrument cables are installed at IP3. Since the thermoplastic insulated cables were manufactured and installed prior to the issuance of IEEE–383, a standard for nuclear plant cables, they were not qualified to that standard. In its May 4, 2010 letter, the licensee stated that the non-IEEE–383-qualified cables are constructed with an asbestos glass braid outer jacket which provides protection from flame spread. In addition, the licensee stated that the results of various tests, as well as an actual fire event at Indian Point Nuclear Generating Unit 2 (IP2) during plant construction, have demonstrated the ability of this type of thermoplastic insulated cables to minimize the growth and spread of cable fires. The licensee also stated that the likelihood of self-ignited cable fires is minimized by appropriately sized electrical protection devices (
All of the fire areas in the plant are comprised of one or more fire zones consisting of separate compartments or fire zone delineations based on spatial separation. In addition, the licensee stated that the localization of hazards and combustibles within each fire zone, combined with the spatial or physical barrier separation between zones, provides reasonable assurance that a fire that occurs within a particular zone will be confined to that zone. As such, the licensee provided a characterization of the defense-in-depth that is present in each of the fire zones containing multiple trains of SSD equipment. The licensee further stated that for each of the fire zones where OMAs are performed, the adequacy of non-rated fire barriers was evaluated to ensure that they can withstand the hazards associated with the area. Therefore, this review evaluates the defense-in-depth provided in each of the zones of concern.
In its submittals, the licensee provided a summary of plant-specific fire protection features provided for each fire zone identified in its request including an account of combustible
Entergy stated that for each of the fire areas addressed in this evaluation, Post-Fire Safe Shutdown (PFSSD) is principally accomplished by remaining in the Central Control Room (CCR) and conducting a normal (non-alternative) shutdown. In all cases, the identified OMAs mitigate conditions where certain technical requirements of III.G.2 are not satisfied.
Entergy further stated that the OMAs required for achieving and maintaining hot shutdown conditions are feasible, reliable, and are not impacted by environmental conditions (radiation, lighting, temperature, humidity, smoke, toxic gas, noise, fire suppression discharge, etc.) associated with fires in III.G.2 areas. The feasibility and reliability of the requested OMAs is addressed in Section 4.0 of this evaluation.
In its May 4, 2010 response to RAI–07.1, the licensee stated that no credit was taken for immediate and proactive OMA response by plant operators upon the receipt of a fire detection alarm in any of the identified fire zones. Instead, the licensee stated that OMAs are initiated upon the detection of operating abnormalities or failures caused by a postulated fire event. In this same response, the licensee stated that they conducted exercises using the plant simulator to evaluate the feasibility of the OMAs where a fire condition or a spontaneous reactor trip caused by a fire was announced at the outset of the simulation followed by the failure of discrete components that are subject to impairment due to fire damage to cables or components resulting from a fire in the area of concern. For fires originating in fire zones lacking fire detection and/or automatic fire suppression systems, the NRC staff considers it improbable that the operators would properly indentify that the indications were the result of a fire instead of some other fault. In addition, the operators would be delayed in positively identifying the location of the fire based on these indirect and ambiguous indicators. Therefore, for some scenarios involving fire zones that lack fire detection systems, operators are unlikely to identify and respond to a fire event in a manner that prompts them to perform certain OMAs prior to a significant degradation of the plant's condition. This becomes especially relevant for OMAs that are required to be completed within a relatively short period of time, e.g., within about 30 minutes, or have limited margins available to complete the required actions.
For OMAs that are required to be completed within a short period of time, the NRC staff evaluates if operators can reliably perform the OMA. In order to be able to perform OMAs reliably, it is important that operators are able to promptly implement any required action based on clear indications. Indirect indicators and diagnostic analysis would result in delayed action to initiate the appropriate OMAs and would impair their reliable completion. For example, loss of control or indication for a pump or other affected component could result from the power supply circuit breaker opening due to an electrical fault other than a fire, and the operator might delay taking actions for a fire while investigating other potential and more-likely causes. The NRC staff documented a position on procedures and training for such actions in Section 4.2.9 of NUREG–1852, “Demonstrating the Feasibility and Reliability of Operator Manual Actions in Response to Fire,” which notes that the procedures for reactive actions should clearly describe the indications which prompt initiation of the actions. Therefore, where OMAs need to be performed within a short period of time, fire zones crediting those OMAs are expected to have more robust defense-in-depth and clear, direct procedures than fire zones that have a significant margin in their OMA performance times.
In the August 11, 2010 RAI–02.1, and the December 16, 2010 RAI–01.1, the NRC staff requested the licensee to describe the spatial separation between redundant trains of equipment. However, the licensee's response only provided information regarding the separation between ignition sources and safe shutdown equipment and not information regarding the separation between redundant trains of equipment within the area. For example, in its response to RAI–01.1 dated January 19, 2011, the licensee stated that “With respect to Item 3 above, Entergy has provided cable routing dimensional details for the circuits of concern in the submittal dated September 29, 2010. However, it should be noted that in most cases, the dimensional data provided does not relate to the separation between redundant trains, but rather the location and separation from ignition sources for a single train that presents the potential for use of the credited OMA if that train is impacted by fire damage.” During a clarification call with the licensee, the licensee did not provide any dimensional data on train separation. Without dimensional data on train separation, the staff has conservatively assumed that there is no discernable separation between redundant trains of equipment.
In addition, the licensee noted that the introduction of combustible materials into most areas included in its request was limited via administrative procedures such as EN–DC–161. The licensee stated that since Fire Area TBL–5 did not contain safety-related systems or components, it was not addressed by this procedure. The NRC staff notes that the licensee requested OMAs for Fire Area TBL–5 area and that alternate shutdown equipment and several cables associated with normal safe-shutdown equipment are located in this area. The licensee stated that operator rounds are performed each shift in Fire Area TBL–5 that would monitor the presence of combustibles that could present an unacceptable fire safety challenge. In addition, the licensee stated that procedures OAP–017 (Plant Surveillance and Operator Rounds) and EN–MA–132 (Housekeeping) include guidance for monitoring general area cleanliness including monitoring for accumulations of combustibles. The NRC staff notes that the combustible material controls procedures for this fire area are not as robust as for safety-related areas, and therefore results in a reduction in the
Each of the fire areas or zones included in this exemption is analyzed below with regard to how the concept of defense-in-depth is achieved for each area or zone and the role of the OMAs in the overall level of safety provided for each area or zone.
Fire Area AFW–6 consists of a single room (the ABFP Room or the Auxiliary Feedwater (AFW) Pump Room) and is designated as Fire Zone 23. Note that the pumps which supply water to the steam generators following a reactor trip are generically known as AFW pumps, but at IP3 they are also called Auxiliary Boiler Feed Pumps. The licensee stated that the fire loading in this area is low and that fixed combustibles consist of cable insulation, small quantities of lube oil, electrical panels, and incident materials and Class A combustibles. The licensee also stated that the ignition sources in the area consist of cable runs, junction boxes, motors, pumps, and an electrical cabinet.
The licensee stated that Fire Zone 23 has an automatic, ionization smoke detection system throughout the zone that is designed and installed in accordance with National Fire Protection Association (NFPA) standard NFPA 72E—1974 edition. The licensee also stated that Fire Zone 23 has an automatic, wet-pipe fire suppression system throughout the zone that is designed and installed in accordance with NFPA 13—1983 Edition.
The licensee stated that Fire Zone 23 has a ceiling height of approximately 13′-0″ and an approximate floor area of 1,254 square feet. This fire zone contains the three AFW pumps (31, 32, and 33) and their discharge valves used to supply water to the steam generators for reactor coolant system decay heat removal when the normal feedwater system is not available, such as following a reactor trip. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
The licensee stated that cables AK3–PT2 and JB1–PT2/2 for the 33 AFW pump are located in Fire Zone 23 in rigid steel conduit located 6.3 to 12 feet above the floor and terminating in the AFW pump control panel. In addition, the licensee stated that ignition sources in the zone located less than 20 feet horizontally from cables AK3–PT2 and JB1–PT2/2 consist of an electrical cabinet separated from the cable by approximately 12.4 feet horizontally and that there are no intervening combustibles.
The licensee also stated that cable JB1–X32/2, also for the 33 AFW pump, is located in Fire Zone 23 in rigid steel conduit that runs vertically from a junction box on the north wall for approximately 5.5 feet and then horizontally in a tray located approximately 10.8 ft above the floor, before exiting the zone through the ceiling. In addition, the licensee stated that ignition sources in the zone located less than 20 feet horizontally from cable JB1–X32/2 consist of an AFW pump motor and two electrical cabinets. According to the licensee, the AFW pump motor is separated from the cable by approximately 8.2 feet horizontally, one electrical cabinet is located approximately 5.7 feet directly below the cable, and the other electrical cabinet is separated from the cable by approximately 9.8 feet horizontally. The licensee also stated that there are no intervening combustibles.
The licensee also stated that cables LL7–X32, LQ7–X32, and X32–Y2J, also for the 33 AFW pump, are located in Fire Zone 23 in rigid steel conduit that runs from flow transmitters FC–1136S and FC–1136A–S located approximately 4.4 feet above the floor along the north wall terminating at a junction box located approximately 5 feet above the floor. In addition, the licensee stated that ignition sources in the zone located less than 20 feet horizontally from cables LL7–X32, LQ7–X32, and X32–Y2J consist of two AFW pump motors, which are separated from the cables by approximately 7 feet horizontally and that there are no intervening combustibles.
In the event that a fire occurs and a failure of the CCR control switch response or pump indication prompts operator action to investigate the breaker status at the switchgear, the licensee stated that OMA #1 is available to restore this function by starting the 33 AFW pump via local operation of the circuit breaker on Bus 6A, which is located in a different fire area. If OMA #1 becomes necessary, the licensee stated that they have assumed a 4.5 minute diagnosis period and that the required time to perform the action is 13 minutes while the time available is 30 minutes, which provides 12.5 minutes of margin.
The NRC staff had previously issued an exemption from III.G.2 for Fire Zone 23 in 1987 (ML003779008). In that exemption, the NRC staff found that the low fire load, the fire detection system, the automatic fire suppression system, and the distance between AFW pumps would provide reasonable assurance that one train of shutdown equipment would be available following a fire in this fire zone, including the use of OMA #1. The NRC staff concludes that OMA #1 remains acceptable for maintaining the reactor coolant system heat removal function and that the III.G.2 exemption for Fire Zone 23 remains valid.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are cable insulation and incidental materials, and that there are no transient combustibles. The licensee also stated that the ignition sources in the area consist of cable runs.
The licensee stated that Fire Zone 7A has an area-wide ionization smoke detection system installed as well as thermal detection in the cable trays and that the systems were designed and installed in accordance with NFPA 72E, 1974 Edition. The licensee also stated that Fire Zone 7A has a dry-pipe, preaction fire suppression sprinkler system installed in the cable trays that was designed and installed in accordance with NFPA 13, 1978 Edition and NFPA 15, 1977 Edition.
The licensee stated that Fire Zone 7A has a ceiling height of approximately 16'-0” and an approximate floor area of 6,386 square feet. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
The licensee stated that cable AS9–W1D for the 32 CCW pump is routed through Fire Zone 7A. The licensee also stated that there are no ignition sources, other than cables, located less than 20 feet horizontally from the cables. The licensee further stated that the postulated fire scenario would involve a transient combustible fire that causes a failure of the power cables to redundant CCW pumps 31 and 33.
In the event that a fire occurs and causes a loss of the CCR control or indication for all CCW pumps, the licensee stated that OMA #2 is available to restore this function by swapping the 32 CCW pump to its alternate power supply or aligning city water to cool the charging pumps. If OMA #2 becomes necessary, the licensee stated that they have assumed failure at the onset of the fire and that the required time to perform the action is 34 minutes while the time available is >60 minutes, which provides 26 minutes of margin.
The licensee stated that cables A15–PT2, JB1 –PT2/1, JB1 –X32/1 for the 31 AFW pump are all routed through Fire Zone 7A. The licensee also stated that there are no ignition sources, other than cables, located less than 20 feet horizontally from the cables. The licensee further stated that the postulated fire scenario would involve a transient combustible fire that causes a failure of cables serving the 31 AFW pump.
In the event that a fire occurs and causes a loss of the CCR control or indication for the 31 AFW pump, the licensee stated that OMA #3 is available to restore this function by operating a 480V bus 3A breaker locally to start the 31 AFW pump. If OMA #3 becomes necessary, the licensee stated that they have assumed a 4.5 minute diagnosis period and that the required time to perform the action is 7 minutes while the time available is 30 minutes, which provides 18.5 minutes of margin.
The licensee stated that cables A15–PT2, JB1 –PT2/1, JB1 –X32/1 for the 31 AFW pump, and cable JB1 –X32/1 for valve FCV–1121, which allows recirculation flow for the 31 AFW pump, are all routed through Fire Zone 7A. The licensee also stated that there are no ignition sources, other than cables, located less than 20 feet horizontally from the cables. The licensee further stated that the postulated fire scenario would involve a transient combustible fire that causes a failure of cables serving valve FCV–1121.
In the event that a fire occurs and causes a loss of the CCR control or indication for all AFW pumps, the licensee stated that OMA #4 is available to restore recirculation flow by locally operating the bypass valve for FCV–1121 to support the use of the 31 AFW pump. If OMA #4 becomes necessary, the licensee stated that they have assumed a 4.5 minute diagnosis period and that the required time to perform the action is 7 minutes while the time available is 30 minutes, which provides 18.5 minutes of margin.
The licensee stated that in the event of a loss of offsite power, the use of the ARDG is credited for supplying power to the 480V buses in the event of a fire in Fire Area ETN–4{1}. In the event that a fire occurs and causes a loss of the CCR control or indication for the buses, the licensee stated that OMA #6 is available to align the ARDG to 480V buses 2A, 3A, 5A, and 312. If OMA #6 becomes necessary, the licensee stated that they have assumed a loss of offsite power at the outset of the event and that the required time to perform the action is 50 minutes while the time available is 75 minutes, which provides 25 minutes of margin. The NRC staff notes that this is equivalent to implementing an alternate safe shutdown system in accordance with III.G.3 and does not qualify for a III.G.2 exemption as requested by the licensee.
The licensee stated that cables AH9–K1 B, AH9–PL2, and JA4–PL2/2 for the 32 charging pump are all routed through Fire Zone 7A. The licensee also stated that there are no ignition sources, other than cables, located less than 20 feet horizontally from the cables. The licensee further stated that the postulated fire scenario would involve a transient combustible fire that causes a failure of cables serving charging pumps 31 and 32.
In the event that a fire occurs and causes a loss of the CCR control or indication for all charging pumps, the licensee stated that OMA #7 is available to restore this function by swapping the 31 or 32 charging pump to its alternate power supply. If OMA #7 becomes necessary, the licensee stated that they have assumed a 30-minute diagnosis period and that the required time to perform the action is 8 minutes while the time available is 75 minutes, which provides 37 minutes of margin.
The licensee stated that cables JB1–SX1/1, JF5–KV4, JF5–LL8, K45–YM3, and K47–YM3 for valve FCV–406B, which controls the flow from the 32 AFW pump to the 34 steam generator (SG), are all routed through Fire Zone 7A. The licensee also stated that there are no ignition sources, other than cables, located less than 20 feet horizontally from the cables. The licensee further stated that the postulated fire scenario would involve a transient combustible fire that causes a failure of cables serving the AFW pumps and valves.
In the event that a fire occurs and causes a loss of the CCR control or indication for all AFW flow control valves, the licensee stated that OMA #8 is available to restore this function by locally operating FCV–405B, FCV–405D, or FCV–406B to control AFW flow to the steam generators. If OMA #8 becomes necessary, the licensee stated that they have assumed a 4.5-minute diagnosis period and that the required time to perform the action is 17 minutes while the time available is 30 minutes, which provides 8.5 minutes of margin.
The NRC staff had previously issued exemptions for Fire Zone 7A in 1987 (ML003779008) and in 1984 (ML003779284). In those exemptions, the NRC staff found that the fire detection system, the automatic fire suppression system, and the distance between redundant trains would provide reasonable assurance that one train of shutdown equipment would be available following a fire in this fire zone. The NRC staff finds the defense-in-depth features in this fire zone and the available time margin would allow the use of OMAs #2, 3, 4, and 7. However, based on new information in the current submittal the NRC staff finds that OMA #6 is equivalent to implementing an alternate safe shutdown system in accordance with III.G.3 and does not qualify for a III.G.2 exemption as requested by the licensee.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are cable and incidental materials and that there are no transient combustibles. The licensee also stated that the ignition sources in the area consist of cables.
The licensee stated that Fire Zone 60A has an area-wide, automatic ionization smoke detection system installed that was designed and installed in accordance with NFPA 72E, 1974 Edition. The licensee also stated that Fire Zone 60A has a dry-pipe, preaction sprinkler fire suppression system installed in the cable trays that was designed and installed in accordance with NFPA 13, 1978 Edition and NFPA 15, 1977 Edition.
The licensee stated that Fire Zone 60A has a ceiling height of approximately 10′-0″ and an approximate floor area of 3,200 square feet. The licensee stated that cables and JB1–S99, JB1–X02, JB1–X02/1, and JB1–SZ6 for valves PCV–1310A and PCV–1310B (steam supply to the 32 AFW pump), DE1–XV2 for 38 SW strainer, JB1–TA5 for valve HCV–1118 (governor valve for the 32 AFW pump), AQ3–K1C, AQ3–PL2, JA2–PL2/1 for 31 charging pump, JB1–KV6 for valve FCV–405B (32 AFW pump to 32 SG), JB1–KV8 for valve FCV–405D (32 AFW pump to 34 SG), JB5–X1J for valve HCV–142 (charging pump discharge to RCS loops), DD4–JB5 for valve LCV–112C (volume control tank to charging pump suction), JB1–PT2/3 for valve PCV–1139 (steam supply to the 32 AFW pump), JB1–SX1/1, JF5–KV4, K45–YM3, K47–YM3, and JF5–LL8 for valve FCV–406B (31 AFW pump to the 32 SG) are all routed through Fire Zone 60A. The licensee also stated that there are no ignition sources, other than cables, located less than 20 feet horizontally from the cables. The licensee further stated that no cables associated with the 31 AFW pump, its flow control valves (FCV–406A to 31 SG, FCV–406B to 32 SG), or its power source (Bus 3A) are routed through this fire area but that the protected instrumentation credited in this fire area for monitoring steam generator (SG) level is the instrumentation for the 33 SG and 34 SG, which would make the 31 AFW pump an unsuitable choice if all level instrumentation for 31 and 32 SG has been rendered inoperable by fire damage. The licensee also stated that the anticipated fire is a slow developing cable fire located in the cable trays. The licensee also stated that Conduit 1VA/JA (source range flux N31 instrumentation) is protected with fire barrier wrap from penetration H–20 in Fire Zone 73A through the upper electrical tunnel. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
In the event that a fire occurs and causes a loss of the CCR control or indication for all AFW pumps, the licensee stated that OMA #5 is available to restore this function by manually operating HCV–1118 to control the 32 AFW pump. If OMA #5 becomes necessary, the licensee stated that they have assumed a 4.5-minute diagnosis period following the failure and that the required time to perform the action is 17 minutes while the time available is 30 minutes, which provides 8.5 minutes of margin.
The licensee stated that in the event of a loss of offsite power, the use of the ARDG is credited for supplying power to the 480V buses in the event of a fire in Fire Area ETN–4{1}. In the event that a fire occurs and causes a loss of the CCR control or indication for the buses, the licensee stated that OMA #6 is available to align the ARDG to 480V buses 2A, 3A, 5A, and 312. If OMA #6 becomes necessary, the licensee stated that they have assumed a loss of offsite power at the outset of the event and that the required time to perform the action is 50 minutes while the time available is 75 minutes, which provides 25 minutes of margin. The NRC staff notes that this is equivalent to implementing an alternate safe shutdown system in accordance with III.G.3 and does not qualify for a III.G.2 exemption as requested by the licensee.
In the event that a fire occurs and causes a loss of the CCR control or indication for all charging pumps, the licensee stated that OMA #7 is available to restore this function by swapping the 31 or 32 charging pump to its alternate power supply. If OMA #7 becomes necessary, the licensee stated that they have assumed a 30-minute diagnosis period and that the required time to perform the action is 8 minutes while the time available is 75 minutes, which provides 37 minutes of margin.
In the event that a fire occurs and causes a loss of the CCR control or indication for all AFW flow control valves, the licensee stated that OMA #8 is available to restore this function by locally operating FCV–405B, FCV–405D, or FCV–406B to control AFW flow to the SGs. If OMA #8 becomes necessary, the licensee stated that they have assumed a 4.5-minute diagnosis period and that the required time to perform the action is 17 minutes while the time available is 30 minutes, which provides 8.5 minutes of margin.
The licensee stated that OMA #9 is only required if normal flowpath valve HCV–142 fails closed and that spurious isolation of the charging makeup path to the RCS is identified in the CCR by operators confirming that a charging pump is in operation, but pressurizer level is decreasing, or pressurizer level channels are nonfunctional or erratic in operation. The licensee also stated that the anticipated fire is a slow developing cable fire located in the cable trays.
In the event that a fire occurs and causes the normal flowpath valve HCV–142 to close, the licensee stated that OMA #9 is available to restore this function by locally opening bypass valve 227 to establish the charging makeup flowpath to the RCS. If OMA #9 becomes necessary, the licensee stated that they have assumed a 60-minute period before re-entering the fire area, a 30-minute diagnosis period, which is assumed to transpire during the 60-minute waiting period and that the required time to perform the action is 9 minutes while the time available is 75
The licensee stated that preemptive steps in procedure 3–ONOP–FP–1, “Plant Fires,” for a fire scenario will trigger action via 3–AOP–SSD–1, “Control Room Inaccessibility Safe Shutdown Control,” to locally verify the charging pump suction path and perform the stated OMA prior to starting a charging pump. 3–AOP–CVCS–1, “Chemical And Volume Control System Malfunctions,” provides guidance to be followed in the event that a swap of the charging pump suction to the RWST cannot be confirmed (i.e., loss of CCR indication for valves LCV–112C [volume control tank to charging pump suction] or LCV–112B [refueling water storage tank to charging pump suction]), which will also trigger the OMA. The licensee also stated that the anticipated fire is a slow developing cable fire located in the cable trays.
In the event that a fire occurs and causes a loss of the CCR control or indication for valves LCV–112C or LCV–112B, the licensee stated that OMA #10 is available to restore this function by locally closing valve LCV–112C and opening valve 288 to align the charging pump suction to the RWST. If OMA #10 becomes necessary, the licensee stated that they have assumed a 60-minute period before re-entering the fire area, a 30-minute diagnosis period, which is assumed to transpire during the 60-minute waiting period and that the required time to perform the action is 11 minutes while the time available is 75 minutes, which provides 4 minutes of margin.
The licensee stated that OMA #11 is only required if 32 AFW pump is selected as the credited pump and other OMAs related to the 31 AFW pump are unsuccessful. The licensee also stated that the anticipated fire is a slow developing cable fire located in the cable trays.
In the event that a fire occurs and causes a loss of AFW flow indication, loss of AFW pump, or loss of PCV–1139 indication from the CCR, the licensee stated that OMA #11 is available to restore this function by locally operating PCV–1139 to ensure a steam supply to the 32 AFW pump. If OMA #11 becomes necessary, the licensee stated that they have assumed a 4.5-minute diagnosis period and that the required time to perform the action is 17 minutes while the time available is 30 minutes, which provides 8.5 minutes of margin.
The licensee stated that OMA #12 is only required if the 32 AFW pump is selected as the credited pump. The licensee also stated that the anticipated fire is a slow developing cable fire located in the cable trays.
In the event that a fire occurs and causes a loss of steam supply as diagnosed during local operation of the 32 AFW pump, the licensee stated that OMA #12 is available to restore this function by locally operating PCV–1310A and 1310B to ensure a steam supply to the 32 AFW pump. If OMA #12 becomes necessary, the licensee stated that they have assumed a 4.5-minute diagnosis period and that the required time to perform the action is 17 minutes while the time available is 30 minutes, which provides 8.5 minutes of margin.
In an inspection report dated July 11, 2011 (ML111920339), NRC inspectors identified that this OMA was inappropriate because it was too complex and beyond the limited scope of an OMA to achieve and maintain post-fire hot shutdown. Therefore, the NRC staff finds that it is inappropriate to approve this OMA.
The NRC staff had previously issued exemptions for Fire Zone 60A in 1987 (ML003779008) and in 1984 (ML003779284). In those exemptions, the NRC staff found that the fire detection system, the automatic fire suppression system, and the distance between redundant trains would provide reasonable assurance that one train of shutdown equipment would be available following a fire in this fire zone. The NRC staff finds the defense-in-depth features in this fire zone and the available time margin would allow the use of OMA #7. However, based on new information in the current submittal the NRC staff finds that OMA #6 is equivalent to implementing an alternate safe shutdown system in accordance with III.G.3 and does not qualify for a III.G.2 exemption as requested by the licensee. Also, the previous exemption requests did not mention that OMA #13, SW pump strainer backwash, was needed for the safe shutdown of the plant. Based on the discussion in section 3.3.4.9, the NRC staff finds it inappropriate to approve OMA #13. Also, OMAs #5, 8, 9, 10, 11, and 12 have insufficient available time margin to allow for reliable performance considering the potential variables as discussed in NUREG–1852. Therefore, the NRC staff finds that an exemption from III.G.2 based on these OMAs cannot be granted for Fire Zone 60A.
The licensee stated that the fire loading in this area is moderate and that the fixed combustibles are cable insulation and incidental materials and that there are no transient combustibles. The licensee also stated that the ignition sources in the area consist of cables, junction boxes, electrical cabinets, and a transformer.
The licensee stated that Fire Zone 73A has an area-wide, automatic ionization smoke detection system installed that was designed and installed in accordance with NFPA 72E, 1974 Edition. The licensee also stated that Fire Zone 73A has a dry-pipe, preaction sprinkler fire suppression system installed in the cable trays that was designed and installed in accordance with NFPA 13, 1978 Edition and NFPA 15, 1977 Edition.
The licensee stated that Fire Zone 73A has a ceiling height of approximately 17′-0Prime; and an approximate floor area of 1,350 square feet. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
The licensee stated that cable JBI–TA5 for valve HCV–1118 is located in Fire Zone 73A in a cable tray located approximately 13 to 14 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables and eight electrical cabinets. According to the licensee, two of the electrical cabinets are separated from the cable by approximately 5.7 to 6.7
In the event that a fire occurs and causes a loss of the CCR control or indication for all AFW pumps, the licensee stated that OMA #14 is available to restore this function by manually operating HCV–1118 to control the 32 AFW pump. If OMA #14 becomes necessary, the licensee stated that they have assumed a 4.5-minute diagnosis period and that the required time to perform the action is 17 minutes while the time available is 30 minutes, which provides 8.5 minutes of margin.
The licensee stated that cable JB1–PT2/3 for valve PCV–1139 is located in Fire Zone 73A in a cable tray located approximately 13 to 14 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables and eight electrical cabinets. According to the licensee, two of the electrical cabinets are separated from the cable by approximately 5.7 to 6.7 feet vertically and the remaining electrical cabinets are separated from the cable by approximately 5.3 feet horizontally. The licensee further stated that OMA #15 is only required if 32 AFW pump is selected as the credited pump and other OMAs related to the 31 AFW pump are unsuccessful. The licensee also stated that the anticipated fire is a slow developing cable fire located in the cable trays.
In the event that a fire occurs and causes a loss of AFW flow indication, loss of AFW pump, or loss of PCV–1139 indication from the CCR, the licensee stated that OMA #15 is available to restore this function by locally operating PCV–1139 to ensure steam supply to the 32 AFW pump. If OMA #15 becomes necessary, the licensee stated that they have assumed a 4.5-minute diagnosis period and that the required time to perform the action is 17 minutes while the time available is 30 minutes, which provides 8.5 minutes of margin.
The licensee stated that cables JB1–X02 and JB1–S99 for valves PCV–1310A and PCV–1310B are located in Fire Zone 73A. The licensee also stated that ignition sources located less than 20 feet horizontally from the cables consist of cables and eight electrical cabinets. According to the licensee, two of the electrical cabinets are separated from the cables by approximately 5.7 to 6.7 feet vertically and the remaining electrical cabinets are separated from the cables by approximately 5.3 feet horizontally.
The licensee also stated that cables JB1–XO2/1 and JB1–SZ6 for valves PCV–1310A and PCV–1310B are located in Fire Zone 73A in a cable tray located approximately 13 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cables consist of cables and eight electrical cabinets. According to the licensee, three of the electrical cabinets are separated from the cables by at least 4 feet vertically, two electrical cabinets are separated from the cables by approximately 2.3 feet horizontally and 2.3 feet vertically, and the remaining three electrical cabinets are separated from the cables by approximately 10.2 feet horizontally. The licensee further stated that OMA #16 is only required if the 32 AFW pump is selected as the credited pump. The licensee also stated that the anticipated fire is a slow developing cable fire located in the cable trays.
In the event that a fire occurs and causes a loss of steam supply as diagnosed during local operation of the 32 AFW pump, the licensee stated that OMA #16 is available to restore this function by locally operating PCV–1310A and 1310B to ensure steam supply to the 32 AFW pump. If OMA #16 becomes necessary, the licensee stated that they have assumed a 4.5-minute diagnosis period and that the required time to perform the action is 17 minutes while the time available is 30 minutes, which provides 8.5 minutes of margin.
The licensee stated that cables JB1–KV8 and JB1–KV7 for valves FCV–405C and FCV–405D are located in Fire Zone 73A in a cable tray located approximately 13 to 14 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cables consist of cables and eight electrical cabinets. According to the licensee, two of the electrical cabinets are separated from the cables by approximately 5.7 to 6.7 feet vertically and the remaining electrical cabinets are separated from the cables by approximately 5.3 feet horizontally. The licensee further stated that the postulated fire scenario would involve a fire that causes damage to the cables serving the AFW FCVs in the area.
In the event that a fire occurs and causes a loss of the CCR control or indication for all AFW flow control valves, the licensee stated that OMA #17 is available to restore this function by locally operating FCV–405B, FCV–405D, or FCV–406B to control AFW flow to the steam generators. If OMA #17 becomes necessary, the licensee stated that they have assumed a 4.5-minute diagnosis period and that the required time to perform the action is 17 minutes while the time available is 30 minutes, which provides 8.5 minutes of margin.
The NRC staff had previously issued exemptions for Fire Zone 73A in 1987 (ML003779008) and in 1984 (ML003779284). In those exemptions, the NRC staff found that the fire detection system, the automatic fire suppression system, the distance between redundant trains, and the use of the alternate safe shutdown system would provide reasonable assurance that one train of shutdown equipment would be available following a fire in this fire zone. In the current exemption request the licensee did not credit the alternate safe shutdown system, but instead proposed certain OMAs. The NRC staff finds that OMAs #14, 15, 16, and 17 have insufficient available time margin to allow for reliable performance considering the potential variables as discussed in NUREG–1852. Therefore, the NRC staff finds that an exemption from III.G.2 based on these OMAs cannot be granted for Fire Zone 73A.
The licensee stated that the fire loading in this area is moderate and that the fixed combustibles are cable insulation, lube oil, and incidental materials and that transient combustibles consist of lube oil, solvent, grease, cleaning materials, wood, anti-
The licensee stated that Fire Zone 6 has an area-wide, automatic ionization smoke detection system installed that was designed and installed in accordance with NFPA 72E, 1974 Edition but that Fire Zone 6 does not have an automatic fire suppression system installed.
The licensee stated that Fire Zone 6 has a ceiling height of approximately 16′-0″ and an approximate floor area of 288 square feet. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
The licensee stated that cable DD4–VN3 for valve LCV–112C is located in Fire Zone 6 in conduit located approximately 14 feet above the floor and terminates at LCV–112B, which is located approximately 7.5 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables, the charging pump motor, and a transfer switch. According to the licensee, the motor is separated from the cable by approximately 13.8 feet horizontally and the transfer switch is separated from the cable by approximately 16 feet horizontally.
The licensee also stated that cable DD4–VN3 is an interlock cable that interfaces with RWST outlet valve LCV–112B and that fire-induced failures of this cable could cause the spurious closure of LCV–112C. In addition, the licensee stated that preemptive steps in 3–ONOP–FP–1 to secure the 31 and 32 charging pumps early in the fire scenario will trigger action via 3–AOP–SSD–1 to locally verify charging pump suction path and perform OMA #18 prior to starting a charging pump. 3–AOP–CVCS–1 provides guidance to be followed in the event that the swap of charging pump suction to the RWST cannot be confirmed (i.e., loss of CCR indication for valves LCV–112C or LCV–112B), which will also trigger OMA #18.
In the event that a fire occurs and causes a loss of the CCR control or indication for valves LCV–112C or LCV–112B, the licensee stated that OMA #18 is available to restore this function by locally closing LCV–112C and opening valve 288 to align the charging pump suction path to RWST. If OMA #18 becomes necessary, the licensee stated that they have assumed a 60-minute period before re-entering the fire area, an 11-minute diagnosis period, which is assumed to transpire during the 60-minute waiting period, and that the required time to perform the action is 11 minutes while the time available is 75 minutes, which provides 4 minutes of margin.
Although there is 4 minutes of margin available for OMA #18, Fire Zone 6 has moderate combustible loading, lacks automatic fire suppression, and the licensee did not provide details regarding any discernable separation between the credited and redundant equipment so it is not clear that at least one train of equipment would remain free of fire damage during or following a fire event. The NRC staff finds that OMA #18 has insufficient available time margin to allow for reliable performance considering the potential variables as discussed in NUREG–1852. Therefore, the NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 6 and finds that OMA #18 is unacceptable for the purpose of providing the level of protection intended by the regulation and that an exemption from III.G.2 based on OMA #18 cannot be granted for Fire Zone 6.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are cable insulation, incidental materials, cellulose, resin, hydrogen, rubber, and plastic and that transient combustibles consist of solvent, lube oil, cleaning materials, grease, paper, wood, anti-C's, and plastic. The licensee also stated that the ignition sources in the area consist of cables, junction boxes, motor control centers (MCCs), transformers, a water heater, lighting power supply, an instrument panel, and electrical cabinets.
The licensee stated that Fire Zone 17A has ionization smoke detectors installed in the under-floor area at MCC Nos. 36A, 36B, and 37 and ultraviolet detectors in the MCC area but that Fire Zone 17A does not have an automatic fire suppression system installed. The licensee also stated that the fire detection systems were designed and installed in accordance with NFPA 72E, 1974 Edition.
The licensee stated that Fire Zone 17A has a ceiling height of approximately 16′-0″ and an approximate floor area of 6,386 square feet. The licensee also stated that there are fire barriers, in the form of marinate boards, installed over the cable trays.
The licensee stated that cable DD4–VN3 for valve LCV–112C is located in Fire Zone 17A in a tray located approximately 14 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables, MCC panels, lighting power panels, electrical cabinets, and instrument panels. According to the licensee, the MCCs and lighting power panels are separated from the cable by approximately 7.4 feet horizontally, three electrical cabinets are located under the cable separated by approximately 3.5 feet vertically, and the rest of the electrical cabinets are separated from the cabinet by approximately 5.6 feet horizontally. The licensee also stated that cable DD4–VN3 is an interlock cable that interfaces with RWST outlet valve LCV–112B and that fire-induced failures of this cable could cause the spurious closure of LCV–112C.
The licensee also stated that cables DD4–VN5/1 and DD4–VN5/2 for valve LCV–112C are located in Fire Zone 17A in a tray located approximately 14 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables, MCC panels, lighting power panels, electrical cabinets, and instrument panels. According to the licensee, the MCCs and lighting power panels are separated from the cables by approximately 7.4 feet horizontally, three electrical cabinets are located under the cables separated by approximately 3.5 feet vertically, and the rest of the electrical cabinets are separated from the cables by approximately 5.6 to 10 feet horizontally.
The licensee also stated that cables AH9–PL2 and JA4–PL2/2 for the 32 charging pump are located in Fire Zone 17A in a tray located approximately 10 to 12 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables, an instrument panel, 21 electrical cabinets, and one dry transformer. According to the licensee, the instrument panel and 12 of the electrical cabinets are located under the cables separated from the cables by approximately 4.2 feet vertically, the remaining 9 electrical cabinets are separated from the cables by approximately 4.2 feet horizontally, and the dry transformer is separated from the cables by approximately 15.8 feet horizontally.
As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
In the event that a fire occurs and causes a failure of the CCR control switch response, or indicating lights prompt operators to investigate breaker status at the switchgear, the licensee stated that OMA #19 is available to restore this function by locally closing the supply breaker for the 32 charging pump. The supply breaker is located in a different fire area. If OMA #19 becomes necessary, the licensee stated that they have assumed a 30-minute diagnosis period and that the required time to perform the action is 7 minutes while the time available is 75 minutes, which provides 38 minutes of margin.
In the event that a fire occurs and causes damage to the cables serving both the 31 and 32 charging pumps or causes a loss of CCR pump control or pump status indication, the licensee stated that OMA #20 is available to restore this function by locally controlling the 32 charging pump using the scoop tube positioner. If OMA #20 becomes necessary, the licensee stated that they have assumed a 30-minute diagnosis period and that the required time to perform the action is 9 minutes while the time available is 75 minutes, which provides 36 minutes of margin.
The licensee stated that preemptive steps in procedure 3–ONOP–FP–1 to secure the 31 and 32 charging pumps early in the fire scenario will trigger action via 3–AOP–SSD–1 to locally verify charging pump suction path and perform OMA #22 prior to starting a charging pump. 3–AOP–CVCS–1 provides guidance to be followed in the event that swap of charging pump suction to RWST cannot be confirmed (i.e., loss of CCR indication for valves LCV–112C or LCV–112B), which will also trigger OMA #22.
In the event that a fire occurs and causes a loss of the CCR control or indication for valves LCV–112C or LCV–112B, the licensee stated that OMA #22 is available to restore this function by locally closing LCV–112C and open bypass valve 288 to establish a flowpath from the RWST to the charging pump suction. If OMA #22 becomes necessary, the licensee stated that they have assumed a 60-minute period before re-entering the fire area, a 30-minute diagnosis period, which is assumed to transpire during the 60-minute waiting period and that the required time to perform the action is 11 minutes while the time available is 75 minutes, which provides 4 minutes of margin.
There are 38 minutes of margin and 36 minutes of margin available for OMAs #19 and #20, respectively, automatic fire detection systems installed, and these two particular OMAs have sufficient time margin available. The staff finds that there is adequate defense-in-depth to support the use of OMAs #19 and #20 for Fire Zone 17A and that OMAs #19 and #20 are acceptable for this fire zone.
Although there is 4 minutes of margin available for OMA #22, Fire Zone 17A lacks automatic fire suppression, and the licensee did not provide details regarding any discernable separation between the credited and redundant equipment so it is not clear that at least one train of equipment would remain free of fire damage during or following a fire event. The NRC staff finds that OMA #22 has insufficient available time margin to allow for reliable performance considering the potential variables as discussed in NUREG–1852. Therefore, the NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 17A and finds that an exemption from III.G.2 based on OMA #22 cannot be granted for Fire Zone 17A. The NRC previously granted an exemption for Fire Zone 17A dated January 7, 1987 (ML003779008), but that exemption also credited the use of the IP3 alternate safe shutdown system. The IP3 alternate safe shutdown system was not evaluated here as the licensee only requested consideration for the OMAs.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are cable insulation and incidental materials and that transient combustibles consist of wood, anti-C's, and plastic. The licensee also stated that the ignition sources in the area consist of cables, a junction box, transformers, and electrical cabinets.
The licensee stated that Fire Zone 19A does not have a fire detection or automatic fire suppression system installed.
The licensee stated that Fire Zone 19A has a ceiling height of approximately 16′-0″ and an approximate floor area of 602 square feet. The licensee stated that cables AH9–PL2 and JA4–PL2/2 for the 32 charging pump are located in Fire Zone 19A in conduit located approximately 10 to 12 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables, an instrument panel, 21 electrical cabinets, and a dry transformer. According to the licensee, the instrument panel and 12 of the electrical cabinets are located under the cables separated from the cables by approximately 4.2 feet vertically, the remaining 9 electrical cabinets are separated from the cables by approximately 4.2 feet horizontally, and the dry transformer is separated from the cables by approximately 15.8 feet horizontally.
As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
In the event that a fire occurs and causes a failure of the CCR control switch response or indicating lights prompt operators to investigate breaker status at the switchgear, the licensee stated that OMA #19 is available to restore this function by locally closing the supply breaker for the 32 charging pump. The supply breaker is located in a different fire area. If OMA #19 becomes necessary, the licensee stated that they have assumed a 30-minute diagnosis period and that the required time to perform the action is 7 minutes while the time available is 75 minutes, which provides 38 minutes of margin.
In the event that a fire occurs and causes damage to the cables serving both the 31 and 32 charging pumps or causes a loss of CCR pump control or pump status indication, the licensee stated that OMA #20 is available to restore this function by locally controlling the 32 charging pump using the scoop tube positioner. If OMA #20 becomes necessary, the licensee stated that they have assumed a 30-minute diagnosis period and that the required time to perform the action is 9 minutes while the time available is 75 minutes, which provides 36 minutes of margin.
Although there is 38 minutes of margin and 36 minutes of margin available for OMAs #19 and #20, respectively, Fire Zone 19A lacks fire detection and automatic suppression systems and the licensee did not provide details regarding any discernable separation between the credited and redundant equipment and clear and direct procedures that instruct operators to proactively perform the OMAs, so it is not clear that at least one train of equipment would remain free of fire damage during or following a fire event. Therefore, the NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 19A and finds that an exemption from III.G.2 based on OMAs #19 and #20 cannot be granted for Fire Zone 19A.
The licensee stated that the fire loading in this area is moderate and that the fixed combustibles are cable insulation and incidental materials and that transient combustibles consist of wood, solvent, cleaning materials, anti-C's, and plastic. The licensee also stated that the ignition sources in the area consist of cables and junction boxes.
The licensee stated that Fire Zone 20A does not have a fire detection or automatic suppression system installed.
The licensee stated that Fire Zone 20A has a ceiling height of approximately 14′-6″ and an approximate floor area of 210 square feet. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
The licensee did not describe which SSD cables are routed through Fire Zone 20A. The licensee stated that preemptive steps in procedure 3–ONOP–FP–1 to secure the 31 and 32 charging pumps early in the fire scenario will trigger action via 3–AOP–SSD–1 to locally verify charging pump suction path and perform OMA #22 prior to starting a charging pump. 3–AOP–CVCS–1 provides guidance to be followed in the event that swap of charging pump suction to RWST cannot be confirmed (i.e., loss of CCR indication for valves LCV–112C or LCV–112B), which will also trigger OMA #22.
In the event that a fire occurs and causes a loss of the CCR control or indication for valves LCV–112C or LCV–112B, the licensee stated that OMA #22 is available to restore this function by locally closing LCV–112C and open bypass valve 288 to establish a flowpath from the RWST to the charging pump suction. If OMA #22 becomes necessary, the licensee stated that they have assumed a 60-minute period before re-entering the fire area, a 30-minute diagnosis period, which is assumed to transpire during the 60-minute waiting period and that the required time to perform the action is 11 minutes while the time available is 75 minutes, which provides 4 minutes of margin.
Although there is 4 minutes of margin available for OMA #22, Fire Zone 20A lacks automatic fire detection and suppression systems and the licensee did not provide details regarding any discernible separation between the credited and redundant equipment so it is not clear that at least one train of equipment would remain free of fire damage during or following a fire event. The NRC staff finds that OMA #22 has insufficient available time margin to allow for reliable performance considering the potential variables as discussed in NUREG–1852. Therefore, the NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 20A and finds that an exemption from III.G.2 based on OMA #22 cannot be granted for Fire Zone 20A.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are cable insulation, incidental materials, cellulose, plastic, and a flammable liquid locker and that transient combustibles consist of lube oil, grease, paper, wood, solvent, cleaning materials, anti-C's, and plastic. The licensee also stated that the ignition sources in the area consist of cables, a transformer, a water heater, and junction boxes.
The licensee stated that Fire Zone 27A does not have a fire detection or automatic suppression system installed.
The licensee stated that Fire Zone 27A has a ceiling height of approximately 15′-6″ and an approximate floor area of 5,532 square feet. The licensee stated that cables DD4–VN5/1 and DD4–VN5/2 for valve LCV–112C are located in Fire Zone 27A in a conduit or tray located approximately 12 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables, electrical cabinets, and a dry transformer. According to the licensee, one of the electrical cabinets is located
The licensee stated that preemptive steps in procedure 3–ONOP–FP–1 to secure the 31 and 32 charging pumps early in the fire scenario will trigger action via 3–AOP–SSD–1 to locally verify charging pump suction path and perform OMA #22 prior to starting a charging pump. 3–AOP–CVCS–1 provides guidance to be followed in the event that swap of charging pump suction to RWST cannot be confirmed (i.e., loss of CCR indication for valves LCV–112C or LCV–112B), which will also trigger OMA #22.
In the event that a fire occurs and causes a loss of the CCR control or indication for valves LCV–112C or LCV–112B, the licensee stated that OMA #22 is available to restore this function by locally closing LCV–112C and open bypass valve 288 to establish a flowpath from the RWST to the charging pump suction. If OMA #22 becomes necessary, the licensee stated that they have assumed a 60-minute period before re-entering the fire area, a 30-minute diagnosis period, which is assumed to transpire during the 60-minute waiting period and that the required time to perform the action is 11 minutes while the time available is 75 minutes, which provides 4 minutes of margin.
Although there is 4 minutes of margin available for OMA #22, Fire Zone 27A lacks fire detection and automatic suppression systems and the licensee did not provide details regarding any discernable separation between the credited and redundant equipment so it is not clear that at least one train of equipment would remain free of fire damage during or following a fire event. The NRC staff finds that OMA #22 has insufficient available time margin to allow for reliable performance considering the potential variables as discussed in NUREG–1852. Therefore, the NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 27A and finds that an exemption from III.G.2 based on OMA #22 cannot be granted for Fire Zone 27A.
The licensee stated that the fire loading in this area is moderate and that the fixed combustibles are cable insulation and incidental materials and that transient combustibles consist of lube oil, grease, wood, solvent, cleaning materials, anti-C's, and plastic. The licensee also stated that the ignition sources in the area consist of cables.
The licensee stated that Fire Zone 30A does not have a fire detection or automatic suppression system installed.
The licensee stated that Fire Zone 30A has a ceiling height of approximately 17′-0″ and an approximate floor area of 171 square feet. The licensee stated that cables DD4–VN5/1 and DD4–VN5/2 for valve LCV–112C are located in Fire Zone 30A in a conduit or tray located approximately 2.5 to 12 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables, electrical cabinets, and a dry transformer. According to the licensee, the electrical cabinets are separated from the cables by approximately 1.8 feet horizontally and the dry transformer is located under the cables separated from the cables by approximately 0.1 feet horizontally. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
The licensee stated that preemptive steps in procedure 3–ONOP–FP–1 to secure the 31 and 32 charging pumps early in the fire scenario will trigger action via 3–AOP–SSD–1 to locally verify charging pump suction path and perform OMA #22 prior to starting a charging pump. 3–AOP–CVCS–1 provides guidance to be followed in the event that swap of charging pump suction to RWST cannot be confirmed (i.e., loss of CCR indication for valves LCV–112C or LCV–112B), which will also trigger OMA #22.
In the event that a fire occurs and causes a loss of the CCR control or indication for valves LCV–112C or LCV–112B, the licensee stated that OMA #22 is available to restore this function by locally closing LCV–112C and open bypass valve 288 to establish a flowpath from the RWST to the charging pump suction. If OMA #22 becomes necessary, the licensee stated that they have assumed a 60-minute period before re-entering the fire area, a 30-minute diagnosis period, which is assumed to transpire during the 60-minute waiting period and that the required time to perform the action is 11 minutes while the time available is 75 minutes, which provides 4 minutes of margin.
Although there is 4 minutes of margin available for OMA #22, Fire Zone 30A has moderate combustible fuel loading, lacks fire detection and automatic suppression systems and the licensee did not provide details regarding any discernable separation between the credited and redundant equipment so it is not clear that at least one train of equipment would remain free of fire damage during or following a fire event. The NRC staff finds that OMA #22 has insufficient available time margin to allow for reliable performance considering the potential variables as discussed in NUREG–1852. Therefore, the NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 30A and finds that an exemption from III.G.2 based on OMA #22 cannot be granted for Fire Zone 30A.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are cable insulation and incidental materials and that transient combustibles consist of lube oil, grease, wood, solvent, cleaning materials, anti-C's, and plastic. The licensee also stated that the ignition sources in the area consist of cables.
The licensee stated that Fire Zone 58A has an area-wide, ionization smoke detection system designed and installed in accordance with NFPA 72E, 1974 Edition but does not have an automatic fire suppression system installed.
The licensee stated that Fire Zone 58A has a ceiling height of approximately 10′-0″ to 12′-0″ and an approximate floor area of 1,400 square feet. The licensee stated that cable K1B–W1B for the 32 charging pump is located in Fire Zone 58A in a tray located approximately 9.5 feet above the floor. The licensee also stated that other than cables, there are no ignition sources located less than 20 feet from the cable. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
In the event that a fire occurs and causes a failure of the CCR control switch response, or indicating lights prompt operators to investigate breaker status at the switchgear, the licensee stated that OMA #19 is available to restore this function by locally closing the supply breaker for the 32 charging pump. The supply breaker is located in a different fire area. If OMA #19 becomes necessary, the licensee stated that they have assumed a 30-minute diagnosis period and that the required time to perform the action is 7 minutes while the time available is 75 minutes, which provides 38 minutes of margin.
In the event that a fire occurs and causes damage to the cables serving both the 31 and 32 charging pumps or causes a loss of CCR pump control or pump status indication, the licensee stated that OMA #20 is available to restore this function by locally controlling the 32 charging pump using the scoop tube positioner. If OMA #20 becomes necessary, the licensee stated that they have assumed a 30-minute diagnosis period and that the required time to perform the action is 9 minutes while the time available is 75 minutes, which provides 36 minutes of margin.
Since there is 38 minutes of margin and 36 minutes of margin available for OMAs #19 and #20, respectively, an automatic smoke detection system installed, and these two particular OMAs have sufficient margin available, the staff finds that there is adequate defense-in-depth to support the use of OMAs #19 and #20 for Fire Zone 58A and that OMAs #19 and #20 are acceptable for the purpose of providing the level of protection intended by the regulation and that an exemption from III.G.2 based on these OMAs is granted for Fire Zone 58A.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are cable insulation and incidental materials and that transient combustibles consist of grease, wood, cleaning materials, anti-C's, and plastic. The licensee also stated that the ignition sources in the area consist of cables and a junction box.
The licensee stated that Fire Zone 59A has an area-wide, ionization smoke detection system designed and installed in accordance with NFPA 72E, 1974 Edition but does not have an automatic fire suppression system installed.
The licensee stated that Fire Zone 59A has a ceiling height of approximately 8′-0″ to 26′-0″ and an approximate floor area of 3,782 square feet. The licensee stated that cables JB5–X1J and VK4–X1J for valve HCV–142 are located in Fire Zone 59A in a tray located approximately 6 to 26 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables, an electrical cabinet, and 8 motors attached to motor-operated valves. According to the licensee, the electrical cabinet is located under the cables separated from the cables by approximately 2.6 feet vertically and the motors are separated from the cables by approximately 2.1 feet horizontally and no vertical separation. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
In the event that a fire occurs and causes normal flowpath valve HCV–142 to close, the licensee stated that OMA #21 is available to restore this function by opening bypass valve 227 to establish a charging flowpath to the RCS around the potentially failed close HCV–142. If OMA #21 becomes necessary, the licensee stated that they have assumed a 60-minute period before re-entering the fire area, a 30-minute diagnosis period, which is assumed to transpire during the 60-minute waiting period and that the required time to perform the action is 9 minutes while the time available is 75 minutes, which provides 6 minutes of margin.
Although there is 6 minutes of margin available for OMA #21, this OMA requires the operator to re-enter the fire area after the fire has been extinguished. Fire Zone 59A contains credible fire scenarios, lacks automatic fire suppression, and the licensee did not provide details regarding any discernable separation between the credited and redundant equipment and clear and direct procedures that instruct operators to proactively perform the OMA so it is not clear that at least one train of equipment would remain free of fire damage during or following a fire event. The NRC staff finds that OMA #21 has insufficient available time margin to allow for reliable performance considering the potential variables as discussed in NUREG–1852. Therefore, the NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 59A and finds that an exemption from III.G.2 based on this OMA cannot be granted for Fire Zone 59A.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are cable insulation, MCC switchgear, cellulose, plastic, lube oil, and a flammable liquid cabinet and that there are no transient combustibles. The licensee also stated that the ignition sources in the area consist of cables, a junction box, a battery with charger, electrical cabinets, transformers, a dryer,
The licensee stated that Fire Zone 37A has ionization smoke detectors installed over MCC 34 and over the 6.9 kV switchgear, thermal detection in the battery and charger room, a wet-pipe sprinkler system installed throughout the area except over switchgear, and a wet pipe sprinkler system installed throughout the battery and charger room. The licensee also stated that the detection systems were designed and installed in accordance with NFPA 72E, 1974 Edition and the fire suppression systems were designed and installed in accordance with NFPA 13, 1983 Edition.
The licensee stated that Fire Zone 37A has a ceiling height of approximately 119′-0″ (See TABLE RAI–GEN–15 of the licensee's May 4, 2010, letter, ML101320263) and an approximate floor area of 5,838 square feet. The licensee stated that cable AQ7–WF6 for the 31 SW strainer is routed through Fire Zone 37A in a tray located approximately 11.3 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables, an MCC, 6.9 kV switchgear, and an electrical cabinet. According to the licensee, the MCC and 6.9 kV switchgear are located under the cable separated by approximately 3 feet vertically and the electrical cabinet is separated from the cable by approximately 8.1 feet horizontally. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
The licensee stated that the need to periodically backwash a selected SW strainer is variable depending on ultimate heat sink conditions and other factors and that the diagnostic indicator to perform the OMA is based on operator rounds monitoring pressure across SW strainers. The licensee also stated that the anticipated fire is a slow developing cable fire located in the cable trays.
In the event that a fire occurs and causes an increase in SW pump strainer differential pressure or a loss of power to the strainer associated with the selected SW pump, the licensee stated that OMA #25 is available to restore this function by locally manually performing a SW pump strainer backwash. In an inspection report dated July 11, 2011 (ML111920339), NRC inspectors identified that this OMA was inappropriate because it was too complex and beyond the limited scope of an OMA to achieve and maintain post-fire hot shutdown. Therefore, the NRC staff finds that it is inappropriate to approve this OMA.
The NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 37A and finds that OMA #25 is unacceptable for the purpose of providing the level of protection intended by the regulation and that an exemption from III.G.2 based on this OMA cannot be granted for Fire Zone 37A.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are cable insulation, an MCC, cellulose, plastic, hydrogen, chemicals, and a flammable liquid cabinet and that there are no transient combustibles. The licensee also stated that the ignition sources in the area consist of an electrical cabinet and an MCC.
The licensee stated that Fire Zone 38A has an ionization smoke detector installed over MCC 32 and a wet-pipe sprinkler suppression system installed in the chemical storage area. The licensee also stated that the detection system was designed and installed in accordance with NFPA 72E, 1974 Edition and the fire suppression system was designed and installed in accordance with NFPA 13, 1983 Edition.
The licensee stated that Fire Zone 38A has a ceiling height of approximately 8′-0″ and an approximate floor area of 4,500 square feet. The licensee stated that cables AQ7–WF6 and WF6–Z99 for the 31 SW strainer are routed through Fire Zone 38A in a tray or conduit that traverses the area vertically. The licensee also stated that ignition sources located less than 20 feet horizontally from the cables consist of cables and 2 electrical cabinets. According to the licensee, the electrical cabinets are separated from the cables by approximately 11.8 feet horizontally. The licensee further stated that the need to periodically backwash a selected SW strainer is variable depending on ultimate heat sink conditions and other factors and that the diagnostic indicator to perform the OMA is based on operator rounds monitoring pressure across SW strainers. The licensee also stated that the anticipated fire is a slow developing cable fire located in the cable trays. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
The licensee stated that the need to periodically backwash a selected SW strainer is variable depending on ultimate heat sink conditions and other factors and that the diagnostic indicator to perform the OMA is based on operator rounds monitoring pressure across SW strainers.
In the event that a fire occurs and causes an increase in SW pump strainer differential pressure or a loss of power to the strainer associated with the selected SW pump, the licensee stated that OMA #25 is available to restore this function by locally manually performing a SW pump strainer backwash. In an inspection report dated July 11, 2011 (ML111920339), NRC inspectors identified that this OMA was inappropriate because it was too complex and beyond the limited scope of an OMA to achieve and maintain post-fire hot shutdown. Therefore, the NRC staff finds that it is inappropriate to approve this OMA.
The NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 37A and finds that OMA #25 is unacceptable for the purpose of
The licensee stated that the fire loading in this area is low and that the fixed combustibles are paper, MCC switchgear, rubber, wood, plastic, cable insulation, and incident materials and that transient combustibles consist of lube oil, solvent, grease, cleaning materials, and wood. The licensee also stated that the ignition sources in the area consist of cables, junction boxes, exciter switchgear, transformers, and electrical cabinets.
The licensee stated that Fire Zone 43A has an automatic wet-pipe sprinkler system installed throughout the zone but does not have an automatic fire detection system installed. The licensee also stated that the fire suppression system was designed and installed in accordance with NFPA 13, 1983 Edition.
The licensee stated that Fire Zone 43A has a ceiling height of approximately 97′-0″ (See TABLE RAI–GEN–17 of the licensee's May 4, 2010 letter, ML101320263) and an approximate floor area of 7,725 square feet. The licensee stated that cable AQ7–WF6 for the 31 SW strainer is routed through Fire Zone 43A in a tray located approximately 7.4 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables and 2 electrical cabinets. According to the licensee, the electrical cabinets are separated from the cable by approximately 1 foot horizontally. The licensee also stated that the anticipated fire is a slow developing cable fire located in the cable trays. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
The licensee stated that the need to periodically backwash a selected SW strainer is variable depending on ultimate heat sink conditions and other factors and that the diagnostic indicator to perform the OMA is based on operator rounds monitoring pressure across SW strainers.
In the event that a fire occurs and causes an increase in SW pump strainer differential pressure or a loss of power to the strainer associated with the selected SW pump, the licensee stated that OMA #25 is available to restore this function by locally manually performing a SW pump strainer backwash. In an inspection report dated July 11, 2011 (ML111920339), NRC inspectors identified that this OMA was inappropriate because it was too complex and beyond the limited scope of an OMA to achieve and maintain post-fire hot shutdown. Therefore, the NRC staff finds that it is inappropriate to approve this OMA.
Although Fire Zone 43A has an automatic wet-pipe sprinkler system installed, OMA #25 is not acceptable, Fire Zone 43A lacks automatic fire detection, and the licensee did not provide details regarding any discernable separation between the credited and redundant equipment, and clear and direct procedures that instruct operators to proactively perform the OMAs, so it is not clear that at least one train of equipment would remain free of fire damage during or following a fire event. Therefore, the NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 43A and finds that OMA #25 is unacceptable for the purpose of providing the level of protection intended by the regulation and that an exemption from III.G.2 based on this OMA cannot be granted for Fire Zone 43A.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are a flammable liquid cabinet, cellulose, rubber, wood, plastic, cable insulation, and incident materials and that transient combustibles consist of lube oil, solvent, grease, cleaning materials, and wood. The licensee also stated that the ignition sources in the area consist of cables, junction boxes, a dry transformer, and electrical cabinets.
The licensee stated that Fire Zone 44A does not have a fire detection or automatic suppression system installed.
The licensee stated that Fire Zone 44A has a ceiling height of approximately 29′-0″ and an approximate floor area of 5,625 square feet. The licensee stated that cable AQ7–WF6 for the 31 SW strainer is routed through Fire Zone 44A in a tray located approximately 7.4 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables, an MCC, 6.9 kV switchgear, and electrical cabinets. The licensee also stated that the anticipated fire is a slow developing cable fire located in the cable trays. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
The licensee stated that the need to periodically backwash a selected SW strainer is variable depending on ultimate heat sink conditions and other factors and that the diagnostic indicator to perform the OMA is based on operator rounds monitoring pressure across SW strainers.
In the event that a fire occurs and causes an increase in SW pump strainer differential pressure or a loss of power to the strainer associated with the selected SW pump, the licensee stated that OMA #25 is available to restore this function by locally manually performing a SW pump strainer backwash. In an inspection report dated July 11, 2011 (ML111920339), NRC inspectors identified that this OMA was inappropriate because it was too complex and beyond the limited scope of an OMA to achieve and maintain post-fire hot shutdown. Therefore, the NRC staff finds that it is inappropriate to approve this OMA.
Since OMA #25 is unacceptable and Fire Zone 44A lacks fire detection and automatic suppression and the licensee did not provide details regarding any discernable separation between the credited and redundant equipment and clear and direct procedures that instruct operators to proactively perform the OMA, it is not clear that at least one train of equipment would remain free of fire damage during or following a fire event. Therefore, the NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 44A and finds that OMA #25 is unacceptable for the purpose of providing the level of protection intended by the regulation and that an exemption from III.G.2 based on this OMA cannot be granted for Fire Zone 44A.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are cable insulation, cellulose barrels, and rubber hose and that transient combustibles consist of lube oil, solvent, grease, cleaning materials, and wood. The licensee also stated that the ignition sources in the area consist of motors, compressors, and a water heater.
The licensee stated that Fire Zone 52A does not have a fire detection or automatic suppression system installed.
The licensee stated that Fire Zone 52A has a ceiling height of approximately 8′-6″ and an approximate floor area of 1,254 square feet. The licensee stated that cable JB1–X32/1 for valve FCV–1121 (recirculation flow for the 31 AFW pump) is located in Fire Zone 52A in rigid steel conduit. The licensee also stated that ignition sources located less than 20 feet horizontally from the cable consist of cables, 2 motors, and 2 electrical cabinets. According to the licensee, the motors are separated from the cable by approximately 13.2 feet horizontally and the two electrical cabinets are separated from the cable by approximately 6.3 feet horizontally.
The licensee stated that cable K45–YM3 for valves FCV–406A and FCV–406B (31 AFW pump discharge to 31 SG and 32 SG) is located in Fire Zone 52A in rigid steel conduit. The licensee also stated that ignition sources located less than 20 feet horizontally from the cables consist of cables, 2 motors, and 2 electrical cabinets. According to the licensee, the motors are separated from the cables by approximately 13.2 feet horizontally and the two electrical cabinets are separated from the cables by approximately 6.3 feet horizontally.
As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
If a fire were to occur and cause a loss of CCR control or indication of FCV–1121 or cause the valve to close and all AFW flow control valves FCV–406A through 406D fail closed, the licensee stated that OMA #23 is available to restore this function by locally operating the bypass valve for FCV–1121 during pump startup. If OMA #23 becomes necessary, the licensee stated that they have assumed a 4.5-minute diagnosis period and that the required time to perform the action is 8 minutes while the time available is 30 minutes, which provides 17.5 minutes of margin.
If a fire were to occur and cause a loss of CCR control or indication of FCV–1121 or cause the valve to close and all AFW flow control valves FCV–406A through 406D fail closed, the licensee stated that OMA #24 is available to restore this function by locally operating valves FCV–406A and FCV–406B to control AFW flow to the SGs. If OMA #24 becomes necessary, the licensee stated that they have assumed a 4.5-minute diagnosis period and that the required time to perform the action is 17 minutes while the time available is 30 minutes, which provides 8.5 minutes of margin.
Although there is 17.5 minutes of margin and 8.5 minutes of margin available for OMAs #23 and #24, respectively, Fire Zone 52A lacks fire detection and automatic suppression, and the licensee did not provide details regarding any discernable separation between the credited and redundant equipment and clear and direct procedures that instruct operators to proactively perform the OMAs so it is not clear that at least one train of equipment would remain free of fire damage during or following a fire event. The NRC staff finds that OMA #24 has insufficient available time margin to allow for reliable performance considering the potential variables as discussed in NUREG–1852. Therefore, the NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 52A and finds that an exemption from III.G.2 based on these OMAs cannot be granted for Fire Zone 52A.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are cable insulation, incidental material, and a flammable liquid cabinet and that transient combustibles consist of lube oil, solvent, grease, cleaning materials, and wood. The licensee also stated that the ignition sources in the area consist of cables, motors, junction boxes, and an electrical cabinet.
The licensee stated that Fire Zone 54A does not have a fire detection or automatic suppression system installed.
The licensee stated that Fire Zone 54A has a ceiling height of approximately 70′ and an approximate floor area of 1,088 square feet. The licensee stated that cable K45–YM3 for valves FCV–406A and FCV–406B are located in Fire Zone 54A in rigid steel conduit. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
If a fire were to occur and cause a loss of CCR control or indication of FCV–1121 or cause the valve to close and all AFW flow control valves FCV–406A through 406D fail closed, the licensee
Although there is 8.5 minutes of margin available for OMA #24, Fire Zone 54A lacks fire detection and automatic fire suppression, and the licensee did not provide details regarding any discernable separation between the credited and redundant equipment and clear and direct procedures that instruct operators to proactively perform the OMAs so it is not clear that at least one train of equipment would remain free of fire damage during or following a fire event. The NRC staff finds that OMA #24 has insufficient available time margin to allow for reliable performance considering the potential variables as discussed in NUREG–1852. Therefore, the NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 54A and finds that an exemption from III.G.2 based on this OMA cannot be granted for Fire Zone 54A.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are cable insulation, MCC switchgear, plastic, and incidental materials and that transient combustibles consist of lube oil, solvent, grease, cleaning materials, and wood. The licensee also stated that the ignition sources in the area consist of cables, a junction box, a transformer, motors, pumps, and an electrical cabinet.
The licensee stated that Fire Zone 22 has an area-wide, photoelectric smoke detection system that was designed and installed in accordance with NFPA 72E, 1987 Edition but does not have an automatic fire suppression system installed.
The licensee stated that Fire Zone 22 has an approximate floor area of 784 square feet. Service water pumps 31, 32, 33, 34, 35, and 36, pump discharge strainers 31–36, and their power cables are located in the metal enclosure that comprises this fire zone. Backup service water pumps 37, 38, and 39 are located over 100 feet away on the plant discharge canal with negligible fixed combustibles between the two groups of pumps. Although it is unlikely due to the low fire loading, a fire in this fire zone could potentially disable service water pumps 31–36, which would render the three emergency diesel generators inoperable due to lack of cooling water, along with other safe shutdown equipment that requires cooling water. The licensee stated that in the case of a loss of offsite power in conjunction with the fire in Fire Zone 22, they could perform an OMA to start the ARDG and energize backup service water pump 38 to provide cooling water as needed. As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
In the event that a fire occurs and causes a loss of CCR control or indication for all SW pumps, the licensee stated that OMA #26 is available to restore this function by locally starting the ARDG (which is air-cooled) to supply MCC 312A in order to energize the 38 service water pump. If OMA #26 becomes necessary, the licensee stated that they have assumed a less than 1-minute diagnosis period and that the required time to perform the action is 25 minutes while the time available is greater than 60 minutes, which provides 35 minutes of margin. The NRC staff notes that this is equivalent to implementing an alternate safe shutdown system in accordance with III.G.3 and does not qualify for a III.G.2 exemption.
The licensee stated that the need to periodically backwash a selected SW strainer is variable depending on ultimate heat sink conditions and other factors and that the diagnostic indicator to perform the OMA is based on operator rounds monitoring pressure across SW strainers.
In the event that a fire occurs and causes an increase in SW pump strainer differential pressure or a loss of power to the strainer associated with the selected SW pump, the licensee stated that OMA #25 is available to restore this function by locally manually performing a SW pump strainer backwash. In an inspection report dated July 11, 2011 (ML111920339), NRC inspectors identified that this OMA was inappropriate because it was too complex and beyond the limited scope of an OMA to achieve and maintain post-fire hot shutdown. Therefore, the NRC staff finds that it is inappropriate to approve this OMA.
Since OMA #26 is a III.G.3 solution which does not qualify for a III.G.2 exemption, and the NRC staff has determined that OMA #27 is an inappropriate OMA, and Fire Zone 22 lacks automatic fire suppression and the licensee did not provide details regarding any discernable separation between the credited and redundant equipment, it is not clear that at least one train of equipment would remain free of fire damage during or following a fire event. Therefore, the NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 22 and finds that an exemption from III.G.2 based on these OMAs cannot be granted for Fire Zone 22. The NRC previously granted an exemption for Fire Zone 22 dated January 7, 1987 (ML003779008), but that exemption was primarily associated with the use of the IP3 Alternate Safe Shutdown System. The IP3 Alternate Safe Shutdown System was not evaluated here as the licensee only requested consideration for the OMAs.
The licensee stated that the fire loading in this area is low and that the fixed combustibles are cable insulation and that there are no transient combustibles. The licensee also stated that the ignition sources in the area consist of motors and pumps.
The licensee stated that Fire Zone 222 does not have a fire detection or automatic fire suppression system installed.
The licensee stated that Fire Zone 222 is an open outdoor area. The licensee stated that cables C2B–XD6 and C2B–XD6/1 for the 38 SW pump are routed through Fire Zone 222 in conduit located approximately 13 feet above the floor. The licensee also stated that ignition sources located less than 20 feet horizontally from the cables consist of cables and a temporary yard power station. According to the licensee, the temporary yard power station is separated from the cables by approximately 18 feet horizontally.
The licensee also stated that cables MY1–PY1 and PY1–XV2 for the 38 SW strainer are routed through Fire Zone 222. The licensee also stated that ignition sources located less than 20 feet horizontally from the cables consist of cables and three motors. According to the licensee, the motors are separated from the cables by approximately 13.2 feet horizontally.
As discussed in Section 3.0 above, the licensee did not identify any separation between credited and redundant trains of equipment.
The licensee stated that the need to periodically backwash a selected SW strainer is variable depending on ultimate heat sink conditions and other factors and that the diagnostic indicator to perform the OMA is based on operator rounds monitoring pressure across SW strainers.
In the event that a fire occurs and causes an increase in SW pump strainer differential pressure or a loss of power to the strainer associated with the selected SW pump, the licensee stated that OMA #25 is available to restore this function by locally manually performing a SW pump strainer backwash. In an inspection report dated July 11, 2011 (ML111920339), NRC inspectors identified that this OMA was inappropriate because it was too complex and beyond the limited scope of an OMA to achieve and maintain post-fire hot shutdown. Therefore, the NRC staff finds that it is inappropriate to approve this OMA.
Since Fire Zone 222 lacks fire detection and automatic suppression and the licensee did not provide details regarding any discernable separation between the credited and redundant equipment, it is not clear that at least one train of equipment would remain free of fire damage during or following a fire event. The NRC staff has also found that the use of OMA #27 is inappropriate. Therefore, the NRC staff finds that the defense-in-depth is insufficient to demonstrate reasonable assurance that safe shutdown can be achieved for a fire in Fire Zone 222 and finds that OMA #27 is unacceptable for the purpose of providing the level of protection intended by the regulation and that an exemption from III.G.2 based on this OMA cannot be granted for Fire Zone 222.
Based on Section 3.0 above, several areas where OMAs are credited were found acceptable. The OMAs credited in those areas were then evaluated for feasibility and reliability. This analysis postulates that OMAs may be necessary to assure SSD capability in addition to the traditional fire protection features described above. NUREG–1852, “Demonstrating the Feasibility and Reliability of Operator Manual Actions in Response to Fire,” provides criteria and associated technical bases for evaluating the feasibility and reliability of post-fire OMAs in nuclear power plants. The following provides the licensee's justification for the OMAs specified in this exemption.
The licensee's analysis addresses factors such as environmental concerns, equipment functionality and accessibility, available indications, communications, portable equipment, personnel protection equipment, procedures and training, and staffing and demonstrations. In its submittals, the licensee stated that environmental factors such as radiation, lighting, temperature, humidity, smoke, toxic gas, noise, and fire suppression discharge were evaluated and found to not represent a negative impact on the operators' abilities to complete the OMAs. The licensee stated that normal radiation conditions within the areas of concern will not be adversely affected by the fire and subsequent spurious equipment operation. The licensee also confirmed that each of the OMA locations addressed by this exemption are provided with emergency lighting that illuminates both the potential egress paths and the component requiring OMA manipulation.
The licensee also confirmed that temperature and humidity conditions will not challenge the operators performing the OMAs. Additionally, the licensee indicated that heat and smoke or gas generation from a fire will not impact the operator performing the OMAs. For those specific cases in which it is necessary to reenter the fire area no less than 1 hour after the postulated fire event, the licensee stated that sufficient time is available to initiate smoke/heat venting through fixed ventilation systems and augmented by portable smoke ejectors, consistent with the Pre-Fire Plans, to ensure operator habitability to implement the necessary OMAs. In addition, the licensee stated that pre-staged self-contained breathing apparatus (SCBA), sufficient to equip the full operating crew, are available for deployment in response to post-fire environmental conditions.
The licensee stated that equipment credited for implementation of OMAs was reviewed to ensure it is accessible, available, and not damaged by the affects of the fire. Where ladders are required for access to components to perform OMAs, appropriate ladders are staged in accordance with plant procedures and the presence of these ladders is verified periodically in accordance with plant surveillance procedures. Any tools that are required in support of post-fire hot shutdown OMAs are pre-staged at the locations where they would be used. These consist of common tools such as wrenches, banding cutters, and pliers. Where special tools/equipment are required, the licensee stated that they are designated for post-fire cold shutdown repairs, and the necessary tools and supplies are pre-staged in designated locations. The staging of necessary tools is confirmed via periodic surveillance.
In addition, the licensee indicates that procedures are in place, in the form of fire response procedures, to ensure that clear and accessible instructions on how to perform the manual actions are available to the operators. The licensee stated that all of the requested OMAs are directed by plant procedures, and the operators are trained in the use of the procedures. Specifically, the licensee stated that post-fire operator manual actions are clearly defined in procedures 3–ONOP–FP–001 and 3–AOP–SSD–1. The OMAs required for the III.G.2 fire areas are directed by Off-Normal Operating Procedure 3–ONOP–FP–001. Where CCR controls and indications are not assured to be reliably operable, the licensee stated that sufficiently detailed guidance is provided in procedure 3–AOP–SSD–1 to
The licensee stated that key diagnostic instrumentation is expected to remain available in the CCR to alert operators to implement the contingency OMAs as credited in the IP3 Appendix R SSD Analysis. Key indicators that trigger the need for local operator intervention for the credited set of OMAs include not only the RCS and secondary system instrumentation, but also the failure of components to respond or reliably indicate status in the CCR. The licensee further stated that based on field notes compiled from simulator exercises in which bounding fire area scenarios were modeled, the available CCR instruments and indicators, combined with operator response in accordance with Emergency Operating Procedures (EOPs), AOPs, fire SSD procedures, and other supporting procedures, are sufficient to ensure timely diagnosis of conditions requiring the dispatch of operator(s) to perform the credited OMAs outside the CCR.
With regard to communications, the licensee stated that reliance is placed on radios for communication between plant operators during a post-fire shutdown event. Radio repeaters are located outside the protected area and are not subject to disruption caused by fire events within the protected area. The repeaters are also equipped with uninterruptible power supplies to ensure continued operation in the event of the loss of normal power to the buildings in which they are located. Field verifications of radio system functionality have validated that communications between the designated control and monitoring locations are feasible and reliable.
The licensee stated that the manual action sequences in all of the Section III.G.2 areas are considered to be bounded by the sequences represented by alternate shutdown (Section III.G.3) Fire Area A. With regard to staffing, the licensee stated that timed field walkthroughs of Abnormal Operating Procedure 3–AOP–SSD–1 have been performed to validate that the number of operators available on the watch staff (7) can safely accomplish all required actions within the required time period to meet Appendix R SSD performance goals. The licensee stated that the broad set of operator manual actions required in implementing alternate shutdown procedure 3–AOP–SSD–1 bounds the smaller set of manual actions credited for coping with III.G.2 fire area scenarios and that most OMAs required for the III.G.2 fire areas are directed by Off-Normal Operating Procedure 3–ONOP–FP–001.
Additionally, the licensee stated that post-fire OMAs have been validated through timed operator walkthroughs, using as the basis an enveloping scenario addressed by 3–AOP–SSD–1. When utilizing 3–AOP–SSD–1, the most challenging set of local manual operator actions (number of actions and time sensitivity of actions) is presented to the operations shift crew, and this set of actions is considered to adequately bound the limited set of manual actions that are credited in 3–ONOP–FP–001. The licensee states that the timed walkthroughs of 3–AOP–SSD–1 have consistently demonstrated that the key SSD tasks (e.g., restoration of RCS makeup; restoration of AFW to SGs; mitigation of key potential spurious actuation concerns) can be accomplished in a timely manner to meet the Appendix R SSD performance goals. The licensee further states that in addition to the validation of key OMAs credited in alternate SSD procedure 3–AOP–SSD–1, the plant simulator was utilized to perform evaluations of bounding III.G.2 fire scenarios, and based on the field notes compiled from these exercises, there is reasonable assurance that conditions requiring the implementation of the identified OMAs can be identified and mitigated in a sufficiently timely manner to ensure Appendix R performance goals are met.
The licensee's analysis demonstrates that, with exceptions, the OMAs can be diagnosed and executed within the amount of time available to complete them. The licensee's analysis also demonstrates that various factors, as discussed above, have been considered to address uncertainties in estimating the time available. The licensee stated that the credited OMAs have been demonstrated to be feasible through timed evolutions performed using a combination of simulator drills and dispatch of operators to simulate performance of the OMAs within the physical plant. In most cases, the OMAs are completed, with margin remaining, within the time constraints established by the supporting SSD thermal-hydraulic analyses. The licensee stated that the time values have been shown to be consistently achievable, and the operations resource demand required to support any one of the fire area scenarios is a fraction of the 7-operator complement available to support a PFSSD scenario.
The following table summarizes the “required time” versus “available time” for each OMA. The indicated “required time” is the time needed to complete all actions that may be required as a result of fire in each of the identified fire areas and includes diagnosis time, implementation time, and uncertainty time. The indicated “available time” is the time by which the action must be completed in order to meet the assumptions in plant analyses. The NRC staff finds that the required time to perform the actions is reasonable as the licensee has verified these times in simulator scenarios and by simulating performance in the plant. Where reentry to a fire area is required to perform an OMA, a 60-minute waiting period is also included in the required time and the diagnosis period for these instances was assumed to occur concurrent with the waiting period. Finally, the times noted below should be considered with the understanding that the manual actions are a fall back in the unlikely event that the fire protection defense-in-depth features are insufficient.
As stated in NUREG–1852, for a feasible action to be performed reliably, it should be shown that there is adequate time available to account for uncertainties not only in estimates of the time available, but also in estimates of how long it takes to diagnose and execute the OMAs (e.g., as based, at least in part, on a plant demonstration of the action under non-fire conditions). To confirm reliability, for each fire area having the potential to initiate the need for an OMA, the licensee considered uncertainties associated with estimating how long it takes to diagnose and execute operator manual actions.
Where the licensee demonstrated that adequate margin was available, the required completion times noted in the table above provide reasonable assurance that the OMAs can reliably be performed under a wide range of conceivable conditions by different plant crews because the completion times, in conjunction with the available time margins associated with each action and other installed fire protection features, account for sources of uncertainty such as variations in fire and plant conditions, factors unable to be recreated in demonstrations and human-centered factors. As noted in the table above, several of the OMAs included in this review were found to be reliable because there is adequate time available to account for uncertainties not only in estimates of the time available, but also in estimates of how long it takes to diagnose a fire and execute the OMAs (e.g., as based, at least in part, on a plant demonstration of the actions under non-fire conditions). Other OMAs were determined to be feasible but not reliable since only nominal margin is available to complete them. Those OMAs found to be feasible but unreliable are those indicated by footnote #4 to the table above.
In summary, the defense-in-depth concept for a fire in the fire areas included in the table below provides a level of safety that results in the unlikely occurrence of fires, rapid detection, control and extinguishment of fires that do occur and the protection of structures, systems and components important to safety. For these particular fire zones and the OMAs credited in them and found acceptable in Sections 3.0 and 4.0 above, the licensee has provided preventative and protective measures in addition to feasible and reliable OMAs that together demonstrate the licensee's ability to preserve or maintain SSD capability in the event of a fire in the analyzed fire areas. The remaining zones included in the licensee's request were found to provide an inadequate level of defense-in-depth or safety margin and as such the requested OMAs for these zones are not approved for permanent use. The table below summarizes which fire zones are granted exemptions from III.G.2.
This exemption would allow IP3 to rely on specific OMAs, as discussed in Sections 3.0 and 4.0 above, in conjunction with the other installed fire protection features, to ensure that at least one means of achieving and maintaining safe shutdown remains available during and following a postulated fire event, as part of its fire protection program, in lieu of meeting the requirements specified in III.G.2 for a fire in the analyzed fire areas. As stated above, 10 CFR 50.12 allows the NRC to grant exemptions from the requirements of 10 CFR part 50. The NRC staff has determined that granting of this exemption will not result in a violation of the Atomic Energy Act of 1954, as amended, or the Commission's regulations. Therefore, the exemption is authorized by law.
The underlying purpose of 10 CFR part 50, Appendix R, Section III.G is to ensure that at least one means of achieving and maintaining safe shutdown remains available during and following a postulated fire event. Based on the above, no new accident precursors are created by the use of the specific OMAs, in conjunction with the other installed fire protection features, in response to a fire in the analyzed fire areas. Therefore, the probability of postulated accidents is not increased. Also based on the above, the consequences of postulated accidents are not increased. Therefore, there is no undue risk to public health and safety.
This exemption would allow IP3 to credit the use of the specific OMAs, in conjunction with the other installed fire protection features, in response to a fire in the analyzed fire areas, discussed above, in lieu of meeting the requirements specified in III.G.2. This
One of the special circumstances described in 10 CFR 50.12(a)(2)(ii) is that the application of the regulation is not necessary to achieve the underlying purpose of the rule. The underlying purpose of 10 CFR Part 50, Appendix R, Section III.G is to ensure that at least one means of achieving and maintaining safe shutdown remains available during and following a postulated fire event. While the licensee does not comply with the explicit requirements of Section III.G.2, the approved OMAs, in conjunction with the other installed fire protection features, provide a method to ensure that a train of equipment necessary to achieve and maintain safe shutdown of the plant will be available in the event of a fire in these fire zones. The NRC staff concludes that application of the regulation is not necessary to achieve the underlying purpose of the rule for the plant configurations approved in this exemption. Therefore special circumstances exist, as required by 10 CFR 50.12(a)(2)(ii), that warrant the issuance of this exemption.
Based on all of the features of the defense-in-depth concept discussed for the fire zones listed in Section 4.4 of this exemption, the NRC staff concludes that the use of specific OMAs found acceptable in Sections 3.0 and 4.0 of this evaluation, in these particular instances and in conjunction with the other installed fire protection features, in lieu of strict compliance with the requirements of III.G.2, will allow IP3 to meet the underlying purpose of the rule for those fire zones. The use of other specific OMAs in certain fire zones were found to be not acceptable, as discussed in Sections 3.0 and 4.0 of this evaluation, and as such, are not approved by this exemption.
Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12(a), the exemption is authorized by law, will not present an undue risk to the public health and safety, is consistent with the common defense and security and that special circumstances are present to warrant issuance of the exemption. Therefore, the Commission hereby grants Entergy an exemption from the requirements of Section III.G.2 of Appendix R of 10 CFR part 50, to utilize the OMAs approved above at IP3.
Pursuant to 10 CFR 51.32, the Commission has determined that the granting of this exemption will not have a significant effect on the quality of the human environment (76 FR 74832).
This exemption is effective upon issuance.
Pursuant to its authority under section 5051 of Public Law 100–203, the Nuclear Waste Technical Review Board will hold a public meeting in Albuquerque, New Mexico, on Wednesday, March 7, 2012. The meeting will focus on Department of Energy (DOE) work related to geologic disposal of spent nuclear fuel and high-level radioactive waste. Following up on presentations at the Board's January meeting in Arlington, Virginia, DOE will discuss technical site-selection criteria for a deep geologic repository. A representative of the U.S. Geological Survey (USGS) will provide a USGS perspective on this subject. The meeting also will include a presentation on the status of DOE's development of performance assessment models for different rock types and its evaluation of technical issues related to deep borehole disposal. A representative of the Blue Ribbon Commission on America's Nuclear Future (BRC) will kick off the meeting with an overview of the BRC's final report and recommendations to the Secretary of Energy.
The meeting will begin at 8 a.m. and will adjourn at approximately 5:45 p.m. It will be held at the Sheraton Albuquerque Airport Hotel, 2910 Yale Blvd. SE., Albuquerque, New Mexico 87106; (Tel) 505–843–7000; (Fax) 505–843–6307. A block of rooms has been reserved at the hotel for meeting attendees. To ensure receiving the Federal government rate of $81.00 per night, room reservations must be made in the “NWTRB” room block by Friday, February 17, 2012. The number to call for reservations is 1–800–227–1117. The electronic reservation link is
A detailed agenda will be available on the Board's Web site at
The meeting will be open to the public, and an opportunity for public comment will be provided at the end of the day. Those wanting to speak are encouraged to sign the “Public Comment Register” at the check-in table. A time limit may need to be set for individual remarks, but written comments of any length may be submitted for the record.
A transcript of the meeting will be available on the Board's Web site, by email, on computer disk, or in paper form on a library-loan basis from Davonya Barnes of the Board's staff after March 30, 2012.
The Board was established as an independent federal agency to provide ongoing objective expert advice to Congress and the Secretary of Energy on technical issues related to nuclear waste management and to review the technical validity of DOE activities related to implementing the Nuclear Waste Policy Act. Board members are experts in their fields and are appointed to the Board by the President from a list of candidates submitted by the National Academy of Sciences. The Board is required to report to Congress and the Secretary no fewer than two times each year. Board reports, correspondence, congressional testimony, and meeting transcripts and materials are posted on the Board's Web site.
For information on the meeting agenda, contact Karyn Severson. For information on lodging or logistics, contact Linda Coultry. They can be reached at 2300 Clarendon Boulevard, Suite 1300, Arlington, VA 22201–3367; (tel) 703–235–4473; (fax) 703–235–4495.
U.S. Office of Personnel Management.
Notice.
According to the provisions of section 10 of the Federal Advisory Committee Act (Pub. L. 92–463), notice is hereby given that an additional meeting of the Federal Prevailing Rate Advisory Committee will be held on Thursday, March 8, 2012.
The meeting will start at 10 a.m. and will be held in Room 5A06A, U.S. Office of Personnel Management Building, 1900 E Street NW., Washington, DC.
The Federal Prevailing Rate Advisory Committee is composed of a Chair, five representatives from labor unions holding exclusive bargaining rights for Federal blue-collar employees, and five representatives from Federal agencies. Entitlement to membership on the Committee is provided for in 5 U.S.C. 5347.
The Committee's primary responsibility is to review the Prevailing Rate System and other matters pertinent to establishing prevailing rates under subchapter IV, chapter 53, 5 U.S.C., as amended, and from time to time advise the U.S. Office of Personnel Management.
This scheduled meeting is open to the public with both labor and management representatives attending. During the meeting either the labor members or the management members may caucus separately to devise strategy and formulate positions. Premature disclosure of the matters discussed in these caucuses would unacceptably impair the ability of the Committee to reach a consensus on the matters being considered and would disrupt substantially the disposition of its business. Therefore, these caucuses will be closed to the public because of a determination made by the Director of the U.S. Office of Personnel Management under the provisions of section 10(d) of the Federal Advisory Committee Act (Pub. L. 92–463) and 5 U.S.C. 552b(c)(9)(B). These caucuses may, depending on the issues involved, constitute a substantial portion of a meeting.
Annually, the Chair compiles a report of pay issues discussed and concluded recommendations. These reports are available to the public, upon written request to the Committee.
The public is invited to submit material in writing to the Chair on Federal Wage System pay matters felt to be deserving of the Committee's attention. Additional information on these meetings may be obtained by contacting the Committee at U.S. Office of Personnel Management, Federal Prevailing Rate Advisory Committee, Room 5H27, 1900 E Street NW., Washington, DC 20415, (202) 606–9400.
On December 16, 2011, the Chicago Stock Exchange, Inc. (“CHX” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to add Interpretation and Policy .01 to Article 13, Rule 2 (Emergency Suspension) to modify the Exchange's ability to suspend a Participant's trading privileges on the Exchange. Currently, Rule 2 authorizes the Exchange's CRO to suspend a Participant's membership with the Exchange or place other limitations on its activities if various circumstances occur, such as insolvency, failure to perform its contracts or obligations, expulsion or suspension by another self-regulatory organization, or where it reasonably appears that the Participant is violating and will continue to violate any provision of the Exchange's rules or the federal securities laws. The Exchange proposes to permit any officer of the Exchange designated by the CRO to suspend the trading privileges of a Participant on the Exchange's facilities pursuant to the provisions of Rule 2 if a Qualified Clearing Agency refuses to act to clear and settle the trades of that Participant. The CRO must approve any such suspensions within two (2) days of the action. If the CRO does not approve the action taken, the suspension shall be immediately lifted as of the time of his or her decision or after the expiration of two days, whichever is earlier. Suspensions pursuant to these provisions, including the appeal thereof, otherwise would be governed by the provisions of Rule 2.
The Exchange also proposes to correct an oversight by eliminating a reference to the Chief Executive Officer in Section (c) of Rule 2 and replacing it with a reference to the CRO regarding appeals of suspensions under Rule 2.
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.
Additionally, the Commission believes that Article 13, Rule 2(c) and Interpretation and Policy .01 to Article 13, Rule 2 provide fair suspension appeal procedures, and therefore is consistent with Section 6(b)(7) of the Act,
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”),
EDGA Exchange, Inc. (“EDGA” or the “Exchange”), proposes to amend its rules regarding registration, qualification and continuing education requirements for Authorized Traders of Members that engage solely in proprietary trading. EDGA proposes to amend Rules 2.3 and 11.4 and the Interpretations to Rule 2.5 to recognize a new category of limited representative registration for proprietary traders. The Exchange proposes to expand its registration requirements to include the Proprietary Traders Qualification Examination (“Series 56”) as one of the applicable qualification examinations as determined by the Exchange. The Exchange also proposes to permit Authorized Traders of Members who engage solely in proprietary trading to obtain the Series 56 license in order to effect transactions on the Exchange. In addition, the Exchange proposes to amend Rule 2.3 to make it substantially similar to the rules of the Financial Industry Regulatory Authority (“FINRA”) and other Self-Regulatory Organizations (“SROs”) to require Members to register two registered Principals.
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 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.
In July 2011, NASDAQ filed a proposed rule change with the Commission to recognize a new category of limited representative registration for proprietary traders.
For the purposes of this category of limited representative registration, NASDAQ Rule 1011(o) defines a proprietary trading firm as a firm that embodies the following characteristics: The Member is not required by Section 15(b)(8) of the Exchange Act (the “Act”) to become a FINRA member but is a member of another registered securities exchange not registered solely under Section 6(g) of the Act; all funds used or proposed to be used by the Member for trading are the Member's own capital, traded through the Member's own accounts; the Member does not, and will not have “customers”;
NASDAQ worked with FINRA and certain other exchanges, many of which have recently enhanced their registration requirements to require the registration of associated persons,
The Exchange believes the Series 56 will assist the Exchange in ensuring it has proper registration, qualification and continuing education requirements for associated persons of Members because the Series 56 examination was designed to test a candidate's knowledge of proprietary trading in general and the industry rules applicable to trading of equity securities and listed options contracts. The Series 56 examination covers, among other things, recordkeeping and recording requirements, types and characteristics of securities and investments, trading practices and display execution and trading systems. While the Series 56 examination is primarily dedicated to topics related to proprietary trading, the Series 56 examination also covers some general concepts relating to customers.
The qualification examination consists of 100 multiple choice questions. Candidates have 150 minutes to complete the exam. The content outline, which the Exchange attached as Exhibit 3,
In addition, NASDAQ and some other SROs have filed or will file similar proposals with the Commission to amend current rules to recognize a new category of limited representative registration for proprietary traders and to permit members engaged solely in proprietary trading to obtain the Series 56 license in order to effect trades on the applicable exchanges.
The Exchange believes that acceptance of the Series 56 qualification examination will benefit both the Exchange and the applicable proprietary traders affected by the proposal. Accordingly, pursuant to the amended rules, as proposed, the Exchange would recognize a new category of limited representative registration for proprietary traders. In addition, the Exchange would expand its registration, qualification and continuing education requirements to include the Series 56 examination as one of the applicable qualification examinations as determined by the Exchange. The Exchange would also permit Authorized Traders of Members who engage solely in proprietary trading to obtain the Series 56 license in order to effect transactions on the Exchange. The Exchange proposes to add Interpretation .06 to Rule 2.5 to incorporate the Series 56 qualification examination as a limited representative registration for proprietary traders, and proposes to identify the characteristics required to satisfy the Exchange's definition of a proprietary trading firm and a proprietary trader, which are modeled after NASDAQ's rules, as discussed above.
In addition, the Exchange proposes to amend Rule 2.3(c)(2) to make it substantially similar to the rules of FINRA and other SROs to require Members to register at least two registered Principals.
The Exchange proposes additional amendments to Rule 2.3(c)(3) and (4) to require Members to register a CCO and a Financial/Operations Principal (“FINOP”) in order to make the Exchange's rules substantially similar to the rules of FINRA and other SROs. In addition, this more accurately reflects the heightened level of accountability inherent in the duty of overseeing compliance by a Member of the Exchange, and in the oversight and preparation of financial reports and the oversight of those employed in financial and operational capacities at each Member firm. The proposed amendments state each Member shall designate a CCO on the Schedule A of Form BD, and requires the individual designated as a CCO to register with the Exchange and pass the General Securities Principal Examination (Series 24). Similarly, the proposed amendments to Rule 2.3 require each Member subject to Rule 15c3–1 of the Act to designate a FINOP, and requires the individual designated as a FINOP to successfully complete the Financial and Operations Principal Examination (Series 27), and register in that capacity with the Exchange as prescribed by the Exchange.
The Exchange proposes to make other ministerial amendments to Rule 2.3 to accommodate the placement of the proposed amendments outlined in this rule filing.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that the requirement that persons functioning in certain supervisory capacities, including CCO and a FINOP, be registered through the WebCRD® system and be subject to higher qualification standards appropriately reflects the enhanced responsibility of their roles and is consistent with the Act. The general requirement that Members must have a minimum of two Principals responsible for oversight of Member organization activity, who must be registered as such and pass a principal exam, should help the Exchange strengthen the regulation of its Member firms, and prepare those individuals for their responsibilities. The nature of the firm, however, may dictate that more than two Principals are needed to provide appropriate supervision. In addition, the requirement for each Member to have a CCO who must register and pass the Series 24 exam and a FINOP who must register and pass the Series 27 exam is appropriate based on the heightened level of accountability inherent in the duty of overseeing compliance by a Member of the Exchange, and in the oversight and preparation of financial reports and the oversight of those employed in financial and operational capacities at each Member firm.
The Exchange believes that this proposal will enhance its ability to ensure an effective supervisory structure for those conducting business on the Exchange. The requirements apply broadly and are intended to help close a regulatory gap which has resulted in varying registration, qualification, and supervision requirements across markets. The Exchange believes that the changes proposed to its rules will strengthen its regulatory structure and should enhance the ability of its Authorized Traders and Members to comply with the Exchange's rules as well as with the federal securities laws.
In addition, the Exchange believes that the proposed rule change is consistent with the principles of Section 11A(a)(1)(C)(ii) of the Act in that it seeks to assure fair competition among brokers and dealers and among exchange markets. The Exchange believes that the proposed rule will promote uniformity of regulation across markets, thus reducing opportunities for regulatory arbitrage. EDGA's proposed rule change helps ensure that all persons conducting a securities business through EDGA are appropriately supervised, as the Commission expects of all SROs.
The proposed changes are also consistent with Section 6(b)(5) 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 Exchange has designated this rule filing as non-controversial under Section 19(b)(3)(A) of the Act
The rule changes as proposed will allow the Exchange to recognize a new category of limited representative registration for proprietary traders. The Exchange believes that Authorized Traders of Members who engage solely in proprietary trading, obtain the Series 56 license, and wish to register with EDGA would be disadvantaged by having to wait for the proposed rule changes to become operative. Accordingly, because the Exchange believes that implementation of the standards proposed in this filing is
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend the 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 email 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 Exchange proposes to amend Exchange Rule 705, entitled “Members Must Carry,” to create new requirements regarding fidelity bonds and also rename the Rule “Fidelity Bonds.”
The Exchange intends for this Rule to become operative on April 2, 2012.
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 these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, which are substantially set forth below in sections A, B, and C, of the most significant aspects of such statements.
The Exchange proposes to amend Exchange Rule 705, entitled “Members Must Carry,” to create new requirements regarding fidelity bonds and also rename the Rule “Fidelity Bonds,” in substantially the same form as a rule at the Financial Industry Regulatory Authority, Inc. (“FINRA”).
Currently, Exchange Rule 705 requires each member organization that is a partnership and is doing business with the public and each member organization that is a corporation to carry fidelity bonds covering its general partners and employees or covering its officers and employees in such form and in such amounts as the Exchange may require. The Rule does not apply to member organizations that are partnerships or corporations which are members of another exchange, which has comparable rules and regulations to
The Exchange proposes to adopt language similar to a FINRA Rule which would provide members and member organizations with more specific guidelines with respect to fidelity bonds and better reflect current industry practices.
The new proposed text would require each member and member organization that is required to join the Securities Investor Protection Corporation (“SIPC”) to maintain blanket fidelity bond coverage with specified amounts of coverage based on the member or member organization's net capital requirement, with certain exceptions. Proposed Rule 705 would require members and member organizations to maintain fidelity bond coverage that provides for per loss coverage without an aggregate limit of liability. Members or member organizations may apply for this level of coverage with any product that meets these requirements, including the Securities Dealer Blanket Bond or a properly endorsed Financial Institution Form 14 Bond. Most fidelity bonds contain a definition of the term “loss” (or “single loss”), for purposes of the bond, which generally includes all covered losses resulting from any one act or a series of related acts. A payment by an insurer for covered losses attributed to a “single loss” does not reduce a member or member organization's coverage amount for losses attributed to other, separate acts. A fidelity bond with an aggregate limit of liability caps a member or member organization's coverage during the bond period at a certain amount if a loss (or losses) meets this aggregate threshold. The Exchange believes that per loss coverage without an aggregate limit of liability provides members and member organizations with the most beneficial coverage since the bond amount cannot be exhausted by one or more covered losses, so it will be available for future losses during the bond period.
Under the proposed Rule, a member or member organization's fidelity bond must provide against loss and have Insuring Agreements covering at least the following: fidelity, on premises, in transit, forgery and alteration, securities and counterfeit currency. The Rule requires that coverage for all Insuring Agreements be equal to 100 percent of the member or member organization's minimum required bond coverage. Members and member organizations may elect to carry additional, optional Insuring Agreements not required by the proposed Rule for an amount less than 100 percent of the minimum required bond coverage. The proposed Rule would require that a member or member organization's fidelity bond include a cancellation rider providing that the insurer will use its best efforts to promptly notify the Exchange in the event the bond is cancelled, terminated or “substantially modified.”
The Exchange is proposing to add supplementary material to the proposed Rule text that would require members or member organizations that do not qualify for a bond with per loss coverage without an aggregate limit of liability to secure alternative coverage. Specifically, a member or member organization that does not qualify for blanket fidelity bond coverage as required by Rule 705(a)(3) would be required to maintain substantially similar fidelity bond coverage in compliance with all other provisions of the proposed Rule, provided that the member or member organization maintains written correspondence from two insurance providers stating that the member or member organization does not qualify for the coverage required by proposed Rule 705(a)(3). The member or member organization would be required to retain such correspondence for the period specified by Rule 17a–4(b)(4) of the Act.
Proposed Rule 705 would require each member or member organization to maintain, at a minimum, fidelity bond coverage for any person associated with the member or member organization, except directors or trustees of a member or member organization who are not performing acts within the scope of the usual duties of an officer or employee. Proposed Rule 705 would require a member or member organization with a net capital requirement that is less than $250,000 to maintain minimum coverage of the greater of 120 percent of the firm's required net capital under Rule 15c3–1 of the Act or $100,000. Members or member organizations with a net capital requirement of at least $250,000 would use a table in the rule to determine their minimum fidelity bond coverage requirement. Under the proposed Rule, the entire amount of a member or member organization's minimum required coverage must be available for covered losses and may not be eroded by the costs an insurer may incur if it chooses to defend a claim. Specifically, any defense costs for covered losses must be in addition to a member or member organization's minimum coverage requirements. A member or member organization may include defense costs as part of its fidelity bond coverage, but only to the extent that it does not reduce a member or member organization's minimum required coverage under the proposed Rule.
Proposed Rule 705 would provide for an allowable deductible amount of up to 25 percent of the fidelity bond coverage purchased by a member or member organization. Any deductible amount elected by the member or member organization that is greater than 10 percent of the coverage purchased by the member or member organization
The proposed Rule would require a member or member organization (including a member or member organization that signs a multi-year insurance policy), annually as of the yearly anniversary date of the issuance of the fidelity bond, to review the adequacy of its fidelity bond coverage and make any required adjustments to its coverage, as set forth in the proposed Rule. Under proposed Rule 705(d), a member or member organization's highest net capital requirement during the preceding 12-month period, based on the applicable method of computing net capital (dollar minimum, aggregate indebtedness or alternative standard), would be used as the basis for determining the member or member organization's minimum required fidelity bond coverage for the succeeding 12-month period. The “preceding 12-month period” includes
Rule 705 would allow a member or member organization that has only been in business for one year and elected the aggregate indebtedness ratio for calculating its net capital requirement to use, solely for the purpose of determining the adequacy of its fidelity bond coverage for its second year, the 15 to 1 ratio of aggregate indebtedness to net capital in lieu of the 8 to 1 ratio (required for broker-dealers in their first year of business) to calculate its net capital requirement. Notwithstanding the above, such member or member organization would not be permitted to carry less minimum fidelity bond coverage in its second year than it carried in its first year.
A member or member organization would be required to immediately advise the Exchange in writing if its fidelity bond is cancelled, terminated or substantially
Proposed Rule 705 would exempt from the fidelity bond requirements members or member organizations in good standing with another national securities exchange or FINRA that maintain a fidelity bond subject to the requirements of such exchange that are equal to or greater than the requirements set forth in the proposed rule.
The Exchange intends for this Rule to become operative on April 2, 2012.2. Statutory Basis
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that its proposed amendment to Exchange Rule 705 provides specificity to the Rule. The proposed amendment to the Rule requires members and member organizations to continue to carry fidelity bonds, but also provides additional specificity regarding the amount of coverage. This Rule will update and clarify the requirements governing fidelity bonds consistent with industry practice.
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.
No written comments were either solicited or received.
Because the foregoing 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, it has become effective pursuant to 19(b)(3)(A) of the Act
The Exchange intends for Rule 705 to become operative on April 2, 2012. This operative delay will allow members or member organizations that are not exempt from the Rule to comply with the requirements set forth under the Rule.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend 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. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or 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 email 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–Phlx–2012–13. This file number should be included on the subject line if email 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 (
All submissions should refer to File Number SR–Phlx–2012–13 and should be submitted on or before March
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 Rebates and Fees for Adding and Removing Liquidity in Select Symbols in Section I, Part A of the Exchange's Fee Schedule.
While changes to the Fee Schedule pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on February 1, 2012.
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 these 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.
The purpose of the proposed rule change is to amend Section I of the Fee Schedule, entitled “Rebates and Fees for Adding and Removing Liquidity in Select Symbols,” at Part A, entitled “Single contra-side orders,” to amend the Customer Fee for Removing Liquidity to increase the fee in order to recoup additional costs associated with paying rebates to attract additional order flow.
Currently, Section I of the Fee Schedule, which applies to certain select symbols,
The Exchange proposes to increase the Customer Fee for Removing Liquidity for Single contra-side orders from $0.31 per contract to $0.39 per contract. The Exchange is not proposing to amend any other rebates or fees in Section I.
While changes to the Fee Schedule pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on February 1, 2012.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes that its proposal to increase the Single contra-side Customer Fee for Removing Liquidity is reasonable because the Customer would pay a lower fee as compared to all other market participants except market makers,
The Exchange believes it is equitable and not unfairly discriminatory to increase the Customer Fee for Removing Liquidity because, as mentioned, compared to other participants, except market makers,
The Exchange operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive. The Exchange believes that the fees it charges and rebates it pays for options overlying the various Select Symbols remain competitive with fees and rebates charged/paid by other venues and therefore continue to be reasonable and equitably allocated to those members that opt to direct orders to the Exchange rather than competing venues.
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.
No written comments were either solicited or 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 email 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”),
NASDAQ is proposing to modify its NASDAQ's Pre-Market Investor Program. NASDAQ proposes to implement the proposed rule change on February 1, 2011. The text of the proposed rule change is available 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 these 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.
Last year, NASDAQ introduced a Pre-Market Investor Program to encourage greater use of NASDAQ's facilities for trading before the market open at 9:30 a.m. and through the trading day.
Under the program, a member is required to designate one or more market participant identifiers (“MPIDs”) for use under the program.
(1) The MPID's “EHIP Execution Ratio”
(2) Currently, the member must provide an average daily volume of 2 million or more shares of liquidity during the month using orders that are executed prior to NASDAQ's Opening Cross. NASDAQ has observed that members that provide higher volumes of liquidity-providing orders during the pre-market hours generally do so throughout the rest of the trading day. Accordingly, the program pays a credit with respect to all liquidity-providing orders, but only in the event that comparatively large volumes of such orders execute in pre-market hours. To broaden the focus of the program to include after-hours trading, NASDAQ is proposing to modify this provision to provide an alternative criterion for participation in the program, but without removing or modifying the
(3) The ratio between shares of liquidity provided through the MPID and total shares accessed, provided, or routed through the MPID during the month is at least 0.80. This requirement reflects the program's goal of encouraging members that provide high levels of liquidity in the pre-market and/or after-hours trading sessions to also do so during the rest of the trading day.
The modified program is similar to a fee provision of the EDGX Exchange under which a favorable execution fee and rebate are offered to members that make significant use of the EDGX Exchange's facilities during pre-market and/or post-market hours.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Pre-Market Investor Program, now renamed with Extended Hours Investment Program, is designed to attract greater liquidity to NASDAQ, with a particular emphasis on encouraging a deeper and more liquid book during pre-market and post-market hours and recognizing and further encouraging the observed correlation between liquidity provision during pre-market and post-market hours and throughout the trading day. The EHIP provides an additional credit to members that satisfy criteria designed to be indicative these patterns of market participation. Thus, a participant in the program is required to designate MPIDs with a low ratio between orders entered and executions; to provide a specified volume of liquidity during pre-market hours, or pre-market and/or post-market hours; and to maintain a high ratio of liquidity provision to order execution throughout the month.
The EHIP is not unfairly discriminatory because it is intended to promote submission of liquidity-providing orders to NASDAQ, which benefits all NASDAQ members and all investors. Likewise, the EHIP is consistent with the Act's requirement for the equitable allocation of reasonable dues, fees, and other charges. Members who choose to significantly increase the volume of EHIP-eligible liquidity-providing orders that they submit to NASDAQ would be benefitting all investors, and therefore providing credits to such members, as contemplated in the proposed enhanced program, is equitable. Moreover, NASDAQ believes that the level of the credit—$0.0002 per share, in addition to credits ranging from $0.0020 to $0.00295 per share for displayed liquidity under NASDAQ regular transaction execution fee and rebate schedule—is reasonable.
NASDAQ further believes that expanding the program to incentivize greater participation in the after-hours trading session is not unfairly discriminatory, because it will promote still further the provision of liquidity, which benefits all market participants, and will broaden the availability of the offered rebate to a greater number of market participants. Similarly, NASDAQ believes that the expansion of the program is consistent with the equitable allocation of fees, because it will further incentivize members to provide liquidity. NASDAQ further believes that the expansion is reasonable, because it will reduce the fees paid by a larger number of market participants.
Finally, NASDAQ notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, NASDAQ must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. NASDAQ believes that all aspects of the proposed rule change reflect this competitive environment because the change is designed to increase the credits provided to members that enhance NASDAQ's market quality through liquidity provision.
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. Because the market for order execution is extremely competitive, members may readily opt to disfavor NASDAQ's execution services if they believe that alternatives offer them better value. The proposed changes will enhance competition by offering a higher rebate to more market participants. In addition, the change will enhance competition with the EDGX Exchange, which encourages participation in its pre-market and post-market trading sessions by means of favorable pricing offered to members that are active during pre-market and/or post-market hours.
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.
• Use the Commission's Internet comment form (
• Send an email 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.
On November 1, 2011, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
Pursuant to Exchange Act Rule 17a–5, FINRA members are required to file with FINRA reports concerning their financial and operational status using SEC Form X–17A–5, Financial and Operational Combined Uniform Single (FOCUS) Report.
Pursuant to proposed FINRA Rule 4524, FINRA is proposing a Supplemental Statement of Income (“SSOI”) to magnify the data from the Statement of Income (Loss) page of the FOCUS Reports. The proposed SSOI is intended to capture more granular detail of a firm's revenue and expense information. The lack of more specific revenue and expense categories for certain business activities on the Statement of Income (Loss) page of the FOCUS Reports has led many firms to report much of their revenue and expenses as “other” (miscellaneous), a very general categorization that provides FINRA limited visibility into revenue and expense trends. The proposed SSOI is divided into sections containing line items that seek additional detail to permit FINRA to better understand revenue sources and expense composition on an ongoing basis. This additional detail would allow FINRA to better assess risk at a firm, and as a result, better allocate examination resources. As modified by Amendment No. 2, each member would be required
The proposed SSOI contains a
The proposed SSOI includes a new Operational Page that would collect additional information from certain members with respect to participation in unregistered offerings during the reporting period. Members whose revenue from unregistered offerings exceeds 10% of total revenue for the reporting period would be required to complete the Operational Page by providing specific information about each unregistered offering. FINRA believes that such information would provide it with greater transparency and a stronger understanding regarding the types of unregistered offerings that generate significant revenue for members.
FINRA will announce the implementation dates of the proposed SSOI in a
The proposed rule change was published for comment in the
Several commenters expressed concerns that the reporting threshold was too low and should be raised.
In its response to comments, FINRA stated that Amendment No. 2 amends the SSOI and the instructions to include as a component of the
One commenter suggested that firms needed additional time to file the SSOI.
One commenter believes that FINRA should provide more precise definitions for certain product lines on the SSOI, in order to avoid duplicative or inconsistent reporting.
In its Response to Comments, FINRA stated that for certain revenue items, where specific and/or detailed instructions are not provided on the SSOI, FINRA expects firms to report the revenue in accordance with the definition and/or methodology used for preparing the FOCUS report. FINRA further stated that it believed the instructions to the SSOI contained sufficient clarity for certain definitions, such as “commodities,” “corporate debt,” “US Government and Agency Securities,” and “asset backed securities;” however, FINRA clarified the instructions with respect to the term “foreign exchange.” FINRA also added instructions regarding non-securities insurance based products. Finally, FINRA stated that the term “derivatives other than listed or unlisted options” does not appear in the proposed SSOI.
One commenter believes that FINRA should make available a less detailed SSOI to small broker-dealers.
In its Response to Comments, FINRA stated that it believed the information being required in the SSOI is important to identify regulatory risks and trends, irrespective of firm size. FINRA also explained that many of the line items will not apply to smaller firms with limited product offerings. Further,
One commenter believes that firms that “do not engage in risky business lines, and who provide financial information that is already transparent” should be exempted from completing the SSOI.
In its Response to Comments, FINRA stated that it does not agree that firms such as variable annuity principal underwriters and wholesalers should be exempt. FINRA believes the required information is important to identify revenue sources, enable FINRA to segment firms, and identify regulatory risk and trends without regard to the business model of the member or whether a particular business segment or product line has raised recent regulatory concerns.
One commenter, CAI, suggested that there was an inconsistency between the proposed Operational Page and FINRA offering rules, specifically FINRA Rule 5110.
In response to these concerns, FINRA explained its view that the commenter did not recognize the different purposes the Operational Page serves from FINRA Rule 5110. The Operational Page of the SSOI is intended to provide FINRA with greater transparency as to the source of the revenues associated with unregistered offerings when such revenues are a material percentage of a firm's overall revenues. FINRA Rule 5110 regulates the underwriting terms and arrangements of most public offerings of securities sold through FINRA members. While not subject to FINRA Rule 5110, information about the exempted offerings identified by this commenter would provide FINRA with a better understanding regarding the types of unregistered offerings that generate significant revenue for members. In this regard, FINRA notes that it has found significant problems in several recent examinations and investigations, including fraud and sales practice abuses in Regulation D offerings.
One commenter stated that FINRA should give more consideration to member practices and procedures with respect to their books and records.
In its Response to Comments, FINRA disagreed that the proposal is at odds with member practices. FINRA stated that the SSOI is similar to the FOCUS Report in that it requires members to break-out revenues based on product line and distinguishes between trading and investment gains. FINRA also stated that requesting information to be reported by product line is not inconsistent with GAAP. Further, the instructions to the SSOI require that all revenue and expense items must be reported in accordance with GAAP. With respect to breaking out trading revenue data compared to investment capital gains or losses, FINRA believes that more granular detail for trading revenue is warranted because the regulatory risks associated with trading activities differ from the regulatory risks associated with longer-term investment activities.
Two commenters suggested alternatives to the SSOI. One commenter asked if FINRA had researched and considered other alternatives to obtain the same information on the SSOI in another manner.
In response to these objections to the SSOI, FINRA reiterated its previous statement that it considered various alternatives and believes that the SSOI is the most effective and timely way to obtain the additional detail of revenues earned or expenses incurred by product or more specific categories. Further, FINRA notes that it consulted with its advisory committees in connection with the development of the proposed SSOI.
Several commenters expressed concerns about the implementation of future FINRA reports or schedules.
One commenter suggested an alternative compliance effective date of no sooner than 365 days following the Commission's approval of the proposed rule change because members not already collecting this information will require much more time than larger firms to implement the operational and system changes the SSOI necessitates.
In its Response to Comments, FINRA stated that it disagrees with the commenter and believes that the proposed implementation date, which would be no sooner than 180 days and no later than 365 days following SEC approval, strikes the proper balance of ensuring FINRA receives timely information while giving members sufficient time to file the first proposed SSOI.
Several commenters were concerned that FINRA did not conduct a cost-benefit analysis in its rule proposal. Specifically, one commenter stated that FINRA should conduct a more rigorous and detailed cost-benefit analysis that the industry can use to consider alternatives to the rule proposal.
In its Response to Comments, FINRA noted that it believed it had complied with its rulemaking obligations under the Exchange Act, by submitting a “concise general statement of the basis and purpose” of its proposed rule. FINRA believes its proposed rule will “further strengthen FINRA's ability to protect investors through a more informed understanding of the drivers of members' business that can be used for more targeted examinations and to understand trends in those drivers that may portend greater risk to the firm and the protection of customer assets.”
One commenter noted that the twenty-one day comment period did not allow firms sufficient time to properly estimate the costs associated with the operational and systems changes needed to complete the SSOI.
One commenter questioned FINRA's authority to adopt a supplement to the FOCUS report and stated that no one has addressed the role such a supplement would play with respect to a broker-dealer's annual audits.
The Commission has carefully considered the proposed rule change, the comments received, Amendment No. 2, and FINRA's Response to Comments. The Commission finds that the proposed rule change is consistent with the requirements of the Exchange Act, and the rules and regulations thereunder that are applicable to a national securities association.
Proposed FINRA Rule 4524 and the SSOI will provide FINRA with the ability to obtain more specific information about the finances of a member broker-dealer. The Commission believes that the proposed rule change works in conjunction with the existing Commission broker-dealer financial responsibility rules and will further FINRA's ability to oversee its members by, among other things, increasing the transparency of the various revenue streams and sources of income of broker-dealers. For example, FINRA noted in its Response to Comments that FINRA has found significant problems in several recent examinations and investigations, including fraud and sales practice abuses in Regulation D offerings.
With respect to commenter concerns that the proposed rule change would give FINRA the ability to circumvent filing proposed rule changes with the Commission and thus avoid the notice and comment process attendant thereto,
The Commission believes that FINRA carefully considered all comments on the proposal and has responded appropriately. FINRA's Amendment No. 2 changed the proposed rule change in response to commenter concerns to provide broker-dealers with additional time to file the SSOI and to include an additional component to the
The Commission finds goods cause, pursuant to Section 19(b)(2) of the Act
Accordingly, the Commission finds that good cause exists to approve the proposal, as modified by Amendment No. 2, on an accelerated basis.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether Amendment No. 2 to 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 email 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–2011–064. This file number should be included on the subject line if email 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.
Small Business Administration.
Notice of Reporting Requirements Submitted for OMB Review.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), agencies are required to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before March 16, 2012. If you intend to comment but cannot prepare comments promptly, please advise the OMB Reviewer and the Agency Clearance Officer before the deadline.
Address all comments concerning this notice to:
Jacqueline White, Agency Clearance Officer, (202) 205–7044.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of Alabama, dated 02/01/2012 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
Notice of open Federal advisory committee meeting.
The SBA is issuing this notice to announce the location, date, time, and agenda for the next meeting of the National Women's Business Council (NWBC). The meeting will be open to the public.
The meeting will be held on March 1, 2012 from approximately 1:15 p.m. to 4 p.m. EST.
The meeting will be held at the U. S. Patent and Trademark Office, Madison Auditorium, 600 Dulany Street, Alexandria, Virginia 22314.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), SBA announces the meeting of the National Women's Business Council. The National Women's Business Council is tasked with providing policy recommendations on issues of importance to women business owners to the President, Congress, and the SBA Administrator.
The purpose of the meeting is to introduce the NWBC's research agenda and action items for fiscal year 2012 included but not limited to procurement, access to capital, access to training and technical assistance, and affordable health care. The topics to be discussed will include 2012 projects.
The meeting is open to the public however advance notice of attendance is requested. Anyone wishing to attend or make a presentation to the NWBC must either email their interest to
Those needing special accommodation in order to attend or participate in the meeting, please contact 202–205–3850 no later than February 27, 2012.
For more information, please visit our Web site at
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Ona M. Hahs, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6473). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Ona M. Hahs, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6473). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
National Highway Traffic Safety Administration, DOT.
Receipt of Petition for Inconsequential Noncompliance.
Chrysler Group, LLC, (Chrysler),
Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule at 49 CFR part 556), Chrysler has petitioned for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety.
Chrysler's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
Chrysler estimates that approximately 729 model year 2011 Chrysler Town & Country and Dodge Grand Caravan multipurpose passenger vehicles manufactured between March 16, 2011 and March 22, 2011 and equipped with Yokohama size 225/65–R16 passenger car tires are affected.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, these provisions only apply to the 729
Paragraph S4.3(d) of FMVSS No. 110 require in pertinent part:
S4.3 Placard. Each vehicle, except for a trailer or incomplete vehicle, shall show the information specified in S4.3 (a) through (g), and may show, at the manufacturer's option, the information specified in S4.3 (h) and (i), on a placard permanently affixed to the driver's side B-pillar. In each vehicle without a driver's side B-pillar* * *
(d) Tire size designation, indicated by the headings “size” or “original tire size” or “spare,” for the tires installed at the time of the first purchase for purposes other than resale. For full size spare tires, the statement “see above” may, at the manufacturer's option replace the tire size designation. If no spare tire is provided, the word “none” must replace the tire size designation”* * *
Chrysler explains that during the production of the subject vehicle models there was a temporary shortage of Kumho size 235/60R16 passenger car tires. As a result, Yokahama size 225/65R16 tires and vehicle placard were substituted. On March 16, 2011, when the Kumho tires were scheduled to be reintroduced, the vehicle placard was updated to reflect the tire change and placed on the subject vehicles. However, 729 vehicles that received the updated vehicle placard were fitted with the Yokahama tires instead of the Kumho tires. The noncompliance is that the vehicle placards incorrectly identified the tire size as required by paragraph S4.3(d) of FMVSS No. 110.
Chrysler notes that the tire inflation pressure requirement for both tires is the same and that the recommended gross vehicle weight rating (GVWR) of the vehicles is not affected by the tire change. Chrysler also notes that the tire circumference for both tires is the same and that the functions of the vehicle odometer, the tire pressure monitoring system (TPMS) and the electronic stability program (ESP) are not affected. In addition, Chrysler stated that the subject Kumho and Yokahama tires provide equivalent performance when mounted on the subject vehicles.
Chrysler also explains that while the non-compliant vehicle placards incorrectly state the tire size, they meet or exceed all other applicable Federal Motor Vehicle Safety Standards.
Chrysler argues that this noncompliance is inconsequential to motor vehicle safety because the noncompliant vehicle placards do not create an unsafe condition and all other labeling requirements have been met.
Chrysler also added that it believes that NHTSA has previously granted similar petitions.
In summation, Chrysler believes that the described noncompliance of its tires to meet the requirements of FMVSS No. 110 is inconsequential to motor vehicle safety, and that its petition, to exempt from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
a.
b. By hand delivery to U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200
c.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that your comments were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
Documents submitted to a docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at
The petition, supporting materials, and all comments received before the close of business on the closing date indicated below will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will be published in the
(49 U.S.C. 30118, 30120: delegations of authority at CFR 1.50 and 501.8)
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
Comments must be received on or before March 1, 2012.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
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 March 16, 2012.
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)).
Surface Transportation Board, DOT.
Notice of Rail Energy Transportation Advisory Committee meeting.
Notice is hereby given of a meeting of the Rail Energy Transportation Advisory Committee (RETAC), pursuant to section 10(a)(2) of the Federal Advisory Committee Act, Public Law 92–463, as amended (5 U.S.C., App. 2).
The meeting will be held on Thursday, March 1, 2012, at 9:00 a.m., E.S.T.
The meeting will be held in the Hearing Room on the first floor of the Board's headquarters at 395 E Street SW., Washington, DC 20423.
Scott M. Zimmerman (202) 245–0386. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at: (800) 877–8339].
RETAC arose from a proceeding instituted by the Board, in
The meeting, which is open to the public, will be conducted pursuant to RETAC's charter and Board procedures. Further communications about this meeting may be announced through the Board's Web site at
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
49 U.S.C. 721, 49 U.S.C. 11101; 49 U.S.C. 11121.
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Financial Management Service, Treasury.
Notice of the consolidation of two systems of records and alterations to a third system of records.
In accordance with the Privacy Act of 1974, as amended, the Financial Management Service gives notice of its proposed consolidation of two of its Privacy Act systems of records entitled “Treasury/FMS .002—Payment Issue Records for Regular Recurring Benefit Payments” and “Treasury/FMS .016—Payment Records for Other Than Regular Recurring Benefit Payments,” and alteration of resulting Treasury/FMS .002. Financial Management Service also gives notice of its proposed alteration to the system of records entitled “Treasury/FMS .014—Debt Collection Operations System.”
Comments must be received no later than March 16, 2012. The proposed consolidation and amendments will become effective March 21, 2012, unless comments are received that would result in a contrary determination.
You should send your comments to Peter Genova, Deputy Chief Information Officer, Financial Management Service, 401 14th Street SW., Washington, DC 20227. Comments received will be available for inspection at the same address between the hours of 9 a.m. and 4 p.m. Monday through Friday. You may send your comments by electronic mail to
Peter Genova, Deputy Chief Information Officer, (202) 874–1736.
Pursuant to the provisions of the Privacy Act of 1974, as amended, 5 U.S.C. 552a, notice is given that the Financial Management Service (FMS), a bureau of the Department of the Treasury (Treasury), proposes to consolidate two of its systems of records entitled “Treasury/FMS .002—Payment Issue Records for Regular Recurring Benefit Payments” and “Treasury/FMS .016—Payment Records for Other Than Regular Recurring Benefit Payments.” The records maintained in Treasury/FMS .002 will be consolidated with the records described in the Treasury/FMS .016 and will include technical changes to harmonize the consolidation of the two systems, including alterations to two routine uses, and a proposed new routine use.
The records in both systems are records of payments from the United States Government, which are collected, maintained, and used for the same purposes. As a result, it is unnecessary to maintain two separate systems of records for the same types of records. Simultaneously with this consolidation, FMS proposes to rename and amend the system of records notice as “Treasury/
FMS also proposes to amend its system of records notice entitled “Treasury/FMS .014—Debt Collection Operations System” by adding a new routine use to the notice and amending several routine uses to make clear that FMS discloses these records to Federal and state agencies responsible for administering Federally-funded programs for the purpose of identifying, preventing, and recouping improper payments. As the agency responsible for disbursing approximately 85% of the Federal Government's payments, FMS is responsible for ensuring that it disburses payments in an accurate and timely manner. Additionally, as the agency responsible for the centralized collection of delinquent debts owed to Federal and state agencies, FMS is responsible for maximizing agencies' ability to collect debts while minimizing costs associated with these efforts. By identifying, preventing, and recouping improper payments earlier in the processes used to grant loans, benefits, and other Federally-funded awards, agencies can reduce the amount of delinquent debt owed to Government agencies.
In recent years, the Federal Government has intensified its efforts to eliminate improper payments, which can occur when funds go to the wrong recipient, the recipient receives the incorrect amount of funds, documentation is not available to support a payment, or the recipient uses funds in an improper manner. Among other things, in November 2009, Executive Order 13520 (Reducing Improper Payments) established a comprehensive approach to improving results in this area, including improved transparency through a new Web site,
Treasury is working with Federal and state agencies to reduce the government-wide number of errors without negatively impacting citizen access to needed programs. FMS's payment and debt collection records can help an agency identify when a potential recipient of a Federal payment is ineligible for it. For example, by disclosing payment records to agencies making eligibility determinations for benefits or in the process of awarding contracts, FMS can help agencies determine whether an applicant or potential contractor is receiving other payments from the Government that could impact eligibility. For example, an individual receiving a Federal salary payment may not be eligible for unemployment benefits.
FMS's payment and debt collection records can also help an agency identify when an applicant for a Federally-funded loan, benefit, contract, grant, or other award owes a delinquent debt and is therefore ineligible for the loan, benefit, contract, grant, or award. By disclosing, in advance, to agencies that an applicant owes a debt, the improper payment can be avoided. Even in situations where a benefit or other award will not be denied because of a delinquent debt, by accessing information from FMS's records, the paying agency can assist in debt collection efforts by informing the debtor, with whom the agency is in current contact, about his or her debt and the obligation to repay the government. The paying agency can also ensure that any payments to a delinquent debtor are made so that an eligible payment will be intercepted to collect the payee's delinquent obligation.
Disclosure of payment and debt collection records for the purpose of preventing, reducing, and recouping the Federal Government's improper payments, and thus, prevention of an increase in the Government's delinquent debt portfolio, is compatible with the purposes for which the payment and debt collection records are collected and maintained. There is a legitimate need for eliminating or reducing improper payments, which totaled $115 billion in fiscal year 2011, consistent with IPERA and the requirements of the Presidential Memorandum. FMS's purpose in maintaining its payment records is to ensure that payments are made accurately and timely, and its purpose in maintaining its debt collection records is to collect and resolve delinquent debt. Preventing or minimizing the occurrence of future delinquencies is compatible with and furthers the purposes for which FMS maintains its records. Thus, disclosure of these records to Federal and state agencies responsible for administering Federally funded programs without incurring improper payments is compatible with FMS's purposes because there is a requisite convergence between FMS's purposes in maintaining its records and the disclosure to prevent, identify, and recoup improper payments.
The proposed amendments to Treasury/FMS.002 and Treasury/FMS.014 are necessary to ensure the accuracy and timeliness of Federal payments; prevent, identify, and recoup improper payments; collect and resolve delinquent debt; prevent the improper award of loans, benefits, contracts, grants, or other awards to ineligible delinquent debtors; and, to avoid increasing the Government's delinquent nontax debt portfolio, which totaled $162.6 billion at the end of fiscal year 2011.
As a result of the consolidation of Treasury/FMS .002 and FMS .016, the system of records notice is being amended to reflect the change to the title of the notice to “Payment Records—Treasury/Financial Management Service” to more accurately reflect the nature of the records.
The “System location,” is being amended to remove the words “and Hyattsville, MD 20782. Records maintained at Financial Centers in five regions: Austin, TX; Birmingham, AL; Kansas City, MO; Philadelphia, PA; and San Francisco, CA” from the list of locations. Other operational sites are being added to include: “Records are also located throughout the United States at FMS operations centers, Federal Records Centers, Federal Reserve Banks acting as Treasury's fiscal agents, and financial institutions acting as Treasury's financial agents.”
Under the “Categories of individuals covered by the system” the list of beneficiaries has been removed and the following is added: “Individuals who are the intended or actual recipients of
The “Categories of records in the system” is being changed to read: “Payment records showing a payee's name; Social Security number, employer identification number, or other agency identification or account number; physical and/or electronic mailing address; telephone numbers; payment amount; date of issuance; trace number or other payment identification number, such as Treasury check number and symbol; financial institution information, including the routing number of his or her financial institution and the payee's account number at the financial institution; and vendor contract and/or purchase order number.”
Additional authorities for Maintenance of the System are being added which include “31 U.S.C. 3325, and 31 U.S.C. 3321 note.”
The “Purpose(s)” element is being added to Treasury/FMS .002 to read: “The purpose of this system is to maintain records about individuals who receive payments from the United States Government, through one or more of its departments and agencies. The information contained in the records is maintained for the purposes of: (1) Facilitating the accurate and timely disbursement of Federal monies to individuals by check or electronically, authorized under various programs of the Federal Government; (2) administering and processing claims of payment nonreceipt, payment reclamation actions, returned payments, and other post-disbursement operations; and, (3) identifying, preventing, or recouping improper payments.”
Currently, Treasury/FMS .002 and Treasury/FMS .016 list sixteen routine uses in each of the notices. Following the consolidation of the two systems of records, routine use (5) will need to be harmonized and routine use (12) will need additional language to accurately describe the use of the records.
Under “Routine uses of records maintained in the system, including categories of users and purposes of such uses” the current routine use (5) will be removed and in its place the following language will be added: “(5) Disclose information to a court, magistrate, mediator, or administrative tribunal in the course of presenting evidence; to counsel, experts, or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a subpoena, or in connection with criminal law proceedings.” Routine use (12) will have the following language added at the end of the routine use: “or pursuant to Federal law that authorizes the offset of Federal payments to collect delinquent obligations owed to the State, Commonwealth, Territory, or the District of Columbia.”
To facilitate agencies' compliance with the requirements of IPERA and other Administration directives related to identifying, preventing, and recouping improper payments, the Department is adding a new routine use to permit disclosure of records, including through a matching activity, that will read as follows: “Disclose information to (a) a Federal or state agency, its employees, agents (including contractors of its agents) or contractors; or, (b) a fiscal or financial agent designated by the Financial Management Service or other Department of the Treasury bureau or office, including employees, agents or contractors of such agent; or, (c) a contractor of the Financial Management Service, for the purpose of identifying, preventing, or recouping improper payments to an applicant for, or recipient of, Federal funds, including funds disbursed by a state in a state-administered, Federally funded program; disclosure may be made to conduct computerized comparisons for this purpose.”
Under “Retrievability,” the current entry is removed and is replaced with the following: “Records are retrieved by name, Social Security number, employer identification number, agency-supplied identifier, date of payment, or trace number or other payment identifying information, such as check number.”
Under the heading “Safeguards,” the language is revised to read: “All official access to the records is on a need-to-know basis only, as authorized by a business line manager at FMS or Treasury's fiscal or financial agent. Procedural and physical safeguards, such as personal accountability, audit logs, and specialized communications security, are utilized. Each user of computer systems containing records has individual passwords (as opposed to group passwords) or other unique, secure access authentication credentials for which he or she is responsible. Thus, a security manager can identify access to the records by user. Access to computerized records is limited, through use of access codes, encryption techniques, and/or other internal mechanisms, to those whose official duties require access. Storage facilities are secured by various means such as security guards, badge access, and locked doors with key entry.”
Finally, FMS .002 is being amended by revising the language under “Records source categories” to read as follows: “Information in this system is provided by Federal departments and agencies responsible for certifying, disbursing, and collecting Federal payments; Treasury or Treasury-designated fiscal and financial agents of the United States that process payments and collections; and commercial database vendors. Each of these record sources may include information obtained from individuals.”
The Privacy Act notice pertaining to this system of records is being revised under “System location” by removing the current entry and in its place adding the following language: “Records are also located throughout the United States at FMS operations centers, Federal Records Centers, Federal Reserve Banks acting as Treasury's fiscal agents, and financial institutions acting as Treasury's financial agents. Additional addresses may be obtained from the system managers.”
Additional authority for Maintenance of the System is being added which includes
“31 U.S.C. 3321 note.”
Under the heading “Purpose(s),” language is being added at the end of the paragraph to indicate that the purpose of maintaining the records includes “resolving delinquent debts owed by debtors who are ineligible for Federally funded programs until the delinquency is resolved, and for identifying, preventing, or recouping improper payments to individuals who owe delinquent obligations to Federal and/or state agencies.” This makes clearer that part of FMS's debt collection responsibilities includes helping Federal and state agencies prevent increases in delinquent debts and use all available mechanisms to collect existing debts.
Currently, Treasury/FMS .014 lists nine routine uses in the notice. Under “Routine uses of records maintained in the system, including categories of users and purposes of such uses,” the current routine use (2) will be removed and in its place the following language will be added: “(2) Disclose information to a court, magistrate, mediator, or administrative tribunal in the course of presenting evidence; to counsel, experts, or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a subpoena, or in connection with criminal law proceedings.” The current routine use (8) will be revised by adding to (8)a.(iii) “or locate debtors” before the semi-colon.
To facilitate agencies' compliance with the requirements of IPERA and
Description of the change: Remove current routine use (2) and in its place add the following: “(2) A court, magistrate, mediator, or administrative tribunal in the course of presenting evidence; counsel, experts, or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a subpoena, or in connection with criminal law proceedings;” and in current routine use (8), add to (8)a.(iii) “or locate debtors” before the semi-colon.
FMS is also adding a new routine use to this system of records to reflect disclosures that may be made to identify, prevent, or recoup improper payments to individuals who owe delinquent debts to Federal and state agencies and disclosures may be made by a computerized comparison. The new routine use reads as follows: “These records may be used to disclose information to: * * * (a) a Federal or state agency, its employees, agents (including contractors of its agents) or contractors; or, (b) a fiscal or financial agent designated by the Financial Management Service or other Department of the Treasury bureau or office, including employees, agents or contractors of such agent; or, (c) a contractor of the Financial Management Service, for the purpose of identifying, preventing, or recouping improper payments to an applicant for, or recipient of, Federal funds, including funds disbursed by a state in a state-administered, Federally funded program; disclosure may be made to conduct computerized comparisons for this purpose.”
Under “Record Source Categories,” the current entry is being amended to read: “Information in this system is provided by the individual on whom the record is maintained; Federal and State agencies to which the debt is owed; Federal agencies and other entities that employ the individual or have information concerning the individual's employment or financial resources; Federal and State agencies issuing payments; collection agencies; locator and asset search companies, credit bureaus, and other database vendors; Federal, State or local agencies furnishing identifying information and/or debtor address information; and/or public documents.”
FMS recognizes the sensitive nature of the information it may be disclosing to other Federal and state agencies and has many safeguards in place to protect the information from theft or inadvertent disclosure. In addition to various procedural and physical safeguards, access to computerized records is limited through the use of access codes, encryption techniques and/or other internal mechanisms. Access to records is granted only as authorized by a business line manager at FMS and is limited to those whose official duties require access solely for the purposes outlined in the proposed system.
The notice for FMS's systems of records was last published in its entirety on May 15, 2009, at 74 FR 23007 for Treasury/FMS .002 and at 74 FR 23018 for Treasury/FMS .016. The notice for Treasury/FMS .014 was last published in its entirety on June 4, 2009 at 74 FR 26924.
The altered system of records report, as required by 5 U.S.C. 552a(r), has been submitted to the Committee on Government Reform and Oversight of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate and the Office of Management and Budget, pursuant to Appendix I to OMB Circular A–130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated November 30, 2000.
For the reasons set forth in the preamble, FMS proposes to consolidate its system of records entitled “Treasury/FMS .002—Payment Issue Records for Regular Recurring Benefit Payments” and “Treasury/FMS .016—Payment Records for Other Than Regular Recurring Benefit Payments.” FMS also proposes to rename and amend its consolidated Treasury/FMS .002 system of records notice and amend its system of records notice entitled “Treasury/FMS .014—Debt Collection Operations System,” as follows:
The consolidated and amended notices entitled “Treasury/FMS .002—Payment Records” and “Treasury/FMS .014—Debt Collection Operations” are reprinted in their entirety below.
Payment Records—Treasury/Financial Management Service.
The Financial Management Service, U.S. Department of the Treasury, Washington, DC 20227. Records are also located throughout the United States at FMS operations centers, Federal Records Centers, Federal Reserve Banks acting as Treasury's fiscal agents, and financial institutions acting as Treasury's financial agents. Additional addresses may be obtained from the system managers.
Individuals who are the intended or actual recipients of payments disbursed by the United States Government.
Payment records showing a payee's name; Social Security number, employer identification number, or other agency identification or account number; physical and/or electronic mailing address; telephone numbers; payment amount; date of issuance; trace number or other payment identification number, such as Treasury check number and symbol; financial institution information, including the routing number of his or her financial institution and the payee's account number at the financial institution; and vendor contract and/or purchase order number.
5 U.S.C. 301; 31 U.S.C. 3325, and 31 U.S.C. 3321 note; Executive Order 6166, dated June 10, 1933.
The purpose of this system is to maintain records about individuals who receive payments from the United States Government, through one or more of its departments and agencies. The information contained in the records is maintained for the purposes of: (1) Facilitating the accurate and timely disbursement of Federal monies to
These records may be used to:
(1) Disclose to banking industry for payment verification;
(2) Disclose to Federal investigative agencies, Departments and agencies for whom payments are made, and payees;
(3) Disclose pertinent information to appropriate Federal, State, local or foreign agencies responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license, where the disclosing agency becomes aware of an indication of a violation or potential violation of civil or criminal law or regulation;
(4) Disclose information to a Federal, State, or local agency maintaining civil, criminal or other relevant enforcement information or other pertinent information, which has requested information relevant or necessary to the requesting agency's or the bureau's hiring or retention of an individual, or issuance of a security clearance, license, contract, grant, or other benefit;
(5) Disclose information to a court, magistrate, mediator, or administrative tribunal in the course of presenting evidence; to counsel, experts, or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a subpoena, or in connection with criminal law proceedings;
(6) Disclose information to foreign governments in accordance with formal or informal international agreements;
(7) Provide information to a congressional office in response to an inquiry made at the request of the individual to whom the record pertains;
(8) Provide information to the news media in accordance with guidelines contained in 28 CFR 50.2 which relate to an agency's functions relating to civil and criminal proceedings;
(9) Provide information to unions recognized as exclusive bargaining representatives under the Civil Service Reform Act of 1978, 5 U.S.C. 7111 and 7114;
(10) Provide information to third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation;
(11) Disclose information concerning delinquent debtors to Federal creditor agencies, their employees, or their agents for the purpose of facilitating or conducting Federal administrative offset, Federal tax refund offset, Federal salary offset, or for any other authorized debt collection purpose;
(12) Disclose information to any State, Territory or Commonwealth of the United States, or the District of Columbia to assist in the collection of State, Commonwealth, Territory or District of Columbia claims pursuant to a reciprocal agreement between FMS and the State, Commonwealth, Territory or the District of Columbia, or pursuant to Federal law that authorizes the offset of Federal payments to collect delinquent obligations owed to the State, Commonwealth, Territory, or the District of Columbia;
(13) Disclose to the Defense Manpower Data Center and the United States Postal Service and other Federal agencies through authorized computer matching programs for the purpose of identifying and locating individuals who are delinquent in their repayment of debts owed to the Department or other Federal agencies in order to collect those debts through salary offset and administrative offset, or by the use of other debt collection tools;
(14) Disclose information to a contractor of the Financial Management Service for the purpose of performing routine payment processing services, subject to the same limitations applicable to FMS officers and employees under the Privacy Act;
(15) Disclose information to a fiscal or financial agent of the Financial Management Service, its employees, agents, and contractors, or to a contractor of the Financial Management Service, for the purpose of ensuring the efficient administration of payment processing services, subject to the same or equivalent limitations applicable to FMS officers and employees under the Privacy Act;
(16) Disclose information to appropriate agencies, entities, and persons when (a) the Department suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm; and
(17) Disclose information to (a) a Federal or state agency, its employees, agents (including contractors of its agents) or contractors; or, (b) a fiscal or financial agent designated by the Financial Management Service or other Department of the Treasury bureau or office, including employees, agents or contractors of such agent; or, (c) a contractor of the Financial Management Service, for the purpose of identifying, preventing, or recouping improper payments to an applicant for, or recipient of, Federal funds, including funds disbursed by a state in a state-administered, Federally funded program; disclosure may be made to conduct computerized comparisons for this purpose.
Hardcopy/Electronic.
Records are retrieved by name, social security number, employer identification number, agency-supplied identifier, date of payment, or trace number or other payment identifying information, such as check number.
All official access to the records is on a need-to-know basis only, as authorized by a business line manager at FMS, or a fiscal or financial agent of the United States, consistent with agent authority granted by Treasury or FMS. Procedural and physical safeguards, such as personal accountability, audit logs, and specialized communications security, are utilized. Each user of computer systems containing records has individual passwords (as opposed to group passwords) or other unique, secure access authentication credentials for which he or she is responsible. Thus, a security manager can identify access to the records by user. Access to computerized records is limited, through use of access codes, encryption techniques, and/or other internal mechanisms, to those whose official duties require access. Storage facilities are secured by various means such as security guards, badge access, and locked doors with key entry.
FMS has submitted a records schedule to the National Archives and Records Administration (NARA) with a proposed retention period of seven years. Until NARA approves the proposed records schedule, disposal is not authorized.
Chief Disbursing Officer, Financial Management Service, 401 14th Street SW., Washington, DC 20227.
Inquiries under the Privacy Act of 1974 shall be addressed to the Disclosure Officer, Financial Management Service, 401 14th Street SW., Washington, DC 20227. All individuals making inquiries should provide with their request as much descriptive matter as is possible to identify the particular record desired. The system manager will advise as to whether the Financial Management Service maintains the record requested by the individual.
Individuals requesting information under the Privacy Act of 1974 concerning procedures for gaining access or contesting records should write to the Disclosure Officer at the address shown above. All individuals are urged to examine the rules of the U.S. Department of the Treasury published in 31 CFR, part 1, subpart C concerning requirements of this Department with respect to the Privacy Act of 1974.
See “Record access procedures” above.
Information in this system is provided by Federal departments and agencies responsible for certifying, disbursing, and collecting Federal payments; Treasury or FMS-designated fiscal and financial agents of the United States that process payments and collections; and commercial database vendors. Each of these record sources may include information obtained from individuals.
None.
Debt Collection Operations System—Treasury/Financial Management Service.
Records are also located throughout the United States at FMS operations centers, Federal Records Centers, Federal Reserve Banks acting as Treasury's fiscal agents, and financial institutions acting as Treasury's financial agents. Additional addresses may be obtained from the system managers.
Individuals who owe debts to: (a) The United States, through one or more of its departments and agencies; and/or (b) States, territories and commonwealths of the United States, and the District of Columbia (hereinafter collectively referred to as “States”).
Debt records containing information about the debtor(s), the type of debt, the governmental entity to which the debt is owed, and the debt collection tools utilized to collect the debt. The records may contain identifying information, such as name(s) and taxpayer identifying number (
Federal Claims Collection Act of 1966 (Pub. L. 89–508), as amended by the Debt Collection Act of 1982 (Pub. L. 97–365, as amended); Deficit Reduction Act of 1984 (Pub. L. 98–369, as amended); Debt Collection Improvement Act of 1996 (Pub. L. 104–134, sec. 31001); Taxpayer Relief Act of 1997 (Pub. L. 105–34); Internal Revenue Service Restructuring and Reform Act of 1998 (Pub. L. 105–206); 26 U.S.C. 6402; 26 U.S.C. 6331; 31 U.S.C. Chapter 37 (Claims), Subchapter I (General) and Subchapter II (Claims of the U.S. Government); 31 U.S.C. 3321 note.
The purpose of this system is to maintain records about individuals who owe debt(s) to the United States, through one or more of its departments and agencies, and/or to States, including past due support enforced by States. The information contained in the records is maintained for the purpose of taking action to facilitate the collection and resolution of the debt(s) using various collection methods, including, but not limited to, requesting repayment of the debt by telephone or in writing, offset, levy, administrative wage garnishment, referral to collection agencies or for litigation, and other collection or resolution methods authorized or required by law. The information also is maintained for the purpose of providing collection information about the debt to the agency collecting the debt, to provide statistical information on debt collection operations, and for the purpose of testing and developing enhancements to the computer systems which contain the records. The information also is maintained for the purpose of resolving delinquent debts owed by debtors who are ineligible for Federally funded programs until the delinquency is resolved, and for identifying, preventing, or recouping improper payments to individuals who owe delinquent obligations to Federal and/or state agencies.
These records may be used to disclose information to:
(1) Appropriate Federal, State, local or foreign agencies responsible for investigating or implementing, a statute, rule, regulation, order, or license;
(2) A court, magistrate, mediator, or administrative tribunal in the course of
(3) A congressional office in response to an inquiry made at the request of the individual to whom the record pertains;
(4) Any Federal agency, State or local agency, U.S. territory or commonwealth, or the District of Columbia, or their agents or contractors, including private collection agencies (consumer and commercial):
a. To facilitate the collection of debts through the use of any combination of various debt collection methods required or authorized by law, including, but not limited to;
(i) Request for repayment by telephone or in writing;
(ii) Negotiation of voluntary repayment or compromise agreements;
(iii) Offset of Federal payments, which may include the disclosure of information contained in the records for the purpose of providing the debtor with appropriate pre-offset notice and to otherwise comply with offset prerequisites, to facilitate voluntary repayment in lieu of offset, and to otherwise effectuate the offset process;
(iv) Referral of debts to private collection agencies, to Treasury-designated debt collection centers, or for litigation;
(v) Administrative and court-ordered wage garnishment;
(vi) Debt sales;
(vii) Publication of names and identities of delinquent debtors in the media or other appropriate places; and
(viii) Any other debt collection method authorized by law;
b. To conduct computerized comparisons to locate Federal payments to be made to debtors;
c. To conduct computerized comparisons to locate employers of, or obtain taxpayer identifying numbers or other information about, an individual for debt collection purposes;
d. To collect a debt owed to the United States through the offset of payments made by States, territories, commonwealths, or the District of Columbia;
e. To account or report on the status of debts for which such entity has a financial or other legitimate need for the information in the performance of official duties;
f. For the purpose of denying Federal financial assistance in the form of a loan or loan guaranty to an individual who owes delinquent debt to the United States or who owes delinquent child support that has been referred to FMS for collection by administrative offset;
g. To develop, enhance and/or test database, matching, communications, or other computerized systems which facilitate debt collection processes; or
h. For any other appropriate debt collection purpose.
(5) The Department of Defense, the U.S. Postal Service, or other Federal agency for the purpose of conducting an authorized computer matching program in compliance with the Privacy Act of 1974, as amended, to identify and locate individuals receiving Federal payments including, but not limited to, salaries, wages, and benefits, which may include the disclosure of information contained in the records for the purpose of requesting voluntary repayment or implementing Federal employee salary offset or other offset procedures;
(6) The Department of Justice or other Federal agency:
a. when requested in connection with a legal proceeding, or
b. to obtain concurrence in a decision to compromise, suspend, or terminate collection action on a debt;
(7) Any individual or other entity who receives Federal payments as a joint payee with a debtor for the purpose of providing notice of, and information about, offsets from such Federal payments; and
(8) Any individual or entity:
a. To facilitate the collection of debts through the use of any combination of various debt collection methods required or authorized by law, including, but not limited to:
(i) Administrative and court-ordered wage garnishment;
(ii) Report information to commercial credit bureaus;
(iii) Conduct asset searches or locate debtors;
(iv) Publish names and identities of delinquent debtors in the media or other appropriate places; or
(v) Debt sales;
b. For the purpose of denying Federal financial assistance in the form of a loan or loan guaranty to an individual who owes delinquent debt to the United States or who owes delinquent child support that has been referred to FMS for collection by administrative offset; or
c. For any other appropriate debt collection purpose. Disclosure to consumer reporting agencies including for the provision of routine debt collection services by an FMS contractor subject to the same limitations applicable to FMS officers and employees under the Privacy Act; and
(9) Appropriate agencies, entities, and persons when (A) the Department suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (B) the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (C) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(10) (a) a Federal or state agency, its employees, agents (including contractors of its agents) or contractors; or, (b) a fiscal or financial agent designated by the Financial Management Service or other Department of the Treasury bureau or office, including employees, agents or contractors of such agent; or, (c) a contractor of the Financial Management Service, for the purpose of identifying, preventing, or recouping improper payments to an applicant for, or recipient of, Federal funds, including funds disbursed by a state in a state-administered, Federally funded program; disclosure may be made to conduct computerized comparisons for this purpose.
Debt information concerning a government claim against a debtor is also furnished, in accordance with 5 U.S.C. 552a(b)(12) and 31 U.S.C. 3711(e), to consumer reporting agencies, as defined by the Fair Credit Reporting Act, 5 U.S.C. 1681(f), to encourage repayment of a delinquent debt.
Hardcopy/Electronic.
Records are retrieved by various combinations of name, taxpayer identifying number (i.e., social security number or employer identification number), or debt account number.
All officials access the system of records on a need-to-know basis only, as authorized by the system manager. Procedural and physical safeguards are utilized, such as accountability, receipt records, and specialized
Retention periods vary by record type, up to a maximum of seven years after the end of the fiscal year in which a debt is resolved or returned to the agency as uncollectible.
System Manager, Debt Management Services, Financial Management Service, 401 14th Street SW., Washington, DC 20227.
Inquiries under the Privacy Act of 1974, as amended, shall be addressed to the Disclosure Officer, Financial Management Service, 401 14th Street SW., Washington, DC 20227. All individuals making inquiries should provide with their request as much descriptive matter as is possible to identify the particular record desired. The system manager will advise as to whether FMS maintains the records requested by the individual.
Individuals requesting information under the Privacy Act of 1974, as amended, concerning procedures for gaining access or contesting records should write to the Disclosure Officer. All individuals are urged to examine the rules of the U.S. Department of the Treasury published in 31 CFR part 1, subpart C, and appendix G, concerning requirements of this Department with respect to the Privacy Act of 1974, as amended.
See “Record access procedures” above.
Information in this system is provided by the individual on whom the record is maintained; Federal and State agencies to which the debt is owed; Federal agencies and other entities that employ the individual or have information concerning the individual's employment or financial resources; Federal and State agencies issuing payments; collection agencies; locator and asset search companies, credit bureaus, and other database vendors; Federal, State or local agencies furnishing identifying information and/or debtor address information; and/or public documents.
None.
Departmental Offices, Treasury.
Notice of Proposed Alteration to a Privacy Act System of Records.
In accordance with the requirements of the Privacy Act of 1974, as amended, the United States Department of the Treasury gives notice of alterations to its Privacy Act systems of records entitled “Treasury/DO .196—Security Information System.”
Comments should be received no later than March 16, 2012. The changes will be effective March 21, 2012 unless the Department receives comments that would result in a contrary determination.
Comments should be sent to the Office of Security Programs, Room 3180 Treasury Annex, 1500 Pennsylvania Avenue NW., Washington, DC 20220. The Department will make such comments available for public inspection and copying at the Department of the Treasury Library, 1500 Pennsylvania Avenue NW., Washington DC 20020 on official business days between the hours of 9 a.m. and 5 p.m. Eastern Time. Persons wishing to inspect the comments submitted must request an appointment by telephoning (202) 622–0990. All comments, including attachments and other supporting materials, received are part of the public record and subject to public disclosure. You should submit only information that you wish to make available publicly.
Wade C. Straw, Director, Office of Security Programs, (202) 622–7870 or at
The Department has reviewed this system of records and determined that it should be updated to capture changes required by Executive Order 13526, as well as other alterations to:
(1) Change the name of the system to “Treasury Information Security Program”;
(2) Add as a category of individuals covered by the system individuals who have received security training;
(3) Increase the types of records in the system reflecting on the process to issue courier cards and official credentials;
(4) Implement pertinent aspects of the Executive Order on security classification;
(5) Revise routine use (1) and add three routine uses under which a disclosure from the system is permitted, and
(6) Update the description under “storage” to indicate records are also stored electronically.
The revised and new routine uses read as follows:
(1) These records may be used to disclose pertinent information to appropriate Federal agencies responsible for the protection of national security information, or reporting a security violation of, or enforcing, or implementing, a statute, rule, regulation, or order, or where the Department becomes aware of an indication of a potential violation of civil or criminal law or regulation, rule or order.
(2) These records may be used to disclose pertinent information to provide information to a congressional office in response to an inquiry made at the request of the individual to whom the record pertains.
(3) These records may be used to disclose pertinent information to another Federal agency, to a court, or a party in litigation before a court or in an administrative proceeding being conducted by a Federal agency, when the Federal Government is a party to the judicial or administrative proceeding. In those cases where the Federal Government is not a party to the proceeding, records may be disclosed if a subpoena has been signed by a court of competent jurisdiction.
(4) These records may be used to disclose pertinent information to the United States Department of Justice for the purpose of representing or providing legal advice to the Treasury Department (Department) in a proceeding before a court, adjudicative body, or other administrative body before which the Department is authorized to appear, when such proceeding involves:
(A) The Department or any component thereof;
(B) Any employee of the Department in his or her official capacity;
(C) Any employee of the Department in his or her individual capacity where the Department of Justice or the Department has agreed to represent the employee; or
(D) The United States, when the Department determines that litigation is likely to affect the Department or any of its components.
The system of records notice was last published in its entirety on April 20, 2010, at 75 FR 20690. The proposed alterations to the system of records entitled “Treasury/DO .196—Treasury Information Security Program” is published in its entirety below.
Treasury Information Security Program.
Department of the Treasury, Office of Security Programs, Room 3180 Treasury Annex, 1500 Pennsylvania Avenue NW., Washington, DC 20220.
(1) Each Department of the Treasury official, by name and position title, who has been delegated the authority to downgrade and declassify national security information and who is not otherwise authorized to originally classify.
(2) Each Department of the Treasury official, by name and position title, who has been delegated the authority for original classification of national security information, exclusive of officials specifically given this authority via Treasury Order 105–19.
(3) Department of the Treasury employees who have valid security violations as a result of the improper handling/processing, safeguarding or storage of classified information or collateral national security systems.
(4) Department of the Treasury employees (including detailees, interns and select contractors) who receive initial, specialized and/or annual refresher training on requirements for protecting classified information.
(5) Department of the Treasury employees and contractors issued a courier card authorizing them to physically transport classified information within and between Treasury, bureaus, and other U.S. Government agencies and departments.
(6) Departmental Offices officials and bureau heads issued Department of the Treasury credentials as evidence of their authority and empowerment to execute and fulfill the duties of their appointed office and those Departmental Offices officials authorized to conduct official investigations and/or inquiries on behalf of the U.S. Government.
(1) Report of Authorized Downgrading and Declassification Officials, (2) Report of Authorized Classifiers, (3) Record of Security Violation, (4) Security Orientation Acknowledgment, (5) Request and Receipt for Courier Card, and (6) Request and Receipt for Official Credential.
Executive Order 13526, dated December 29, 2009 and the Treasury Security Manual, TD P 15–71, last updated October 28, 2011.
The system is designed to (1) Oversee compliance with Executive Order 13526, Information Security Oversight Office Directives, the Treasury Security Manual, and Departmental security programs, (2) ensure proper classification of national security information, (3) record details of valid security violations, (4) assist in determining the effectiveness of information security programs affecting classified and sensitive information, and (5) safeguard classified information throughout its entire life-cycle.
These records may be used to disclose pertinent information to:
(1) Appropriate Federal agencies responsible for the protection of national security information, or reporting a security violation of, or enforcing, or implementing, a statute, rule, regulation, or order, or where the Department becomes aware of an indication of a potential violation of civil or criminal law or regulation, rule or order;
(2) Provide information to a congressional office in response to an inquiry made at the request of the individual to whom the record pertains;
(3) Another Federal agency, to a court, or a party in litigation before a court or in an administrative proceeding being conducted by a Federal agency, when the Federal Government is a party to the judicial or administrative proceeding. In those cases where the Federal Government is not a party to the proceeding, records may be disclosed if a subpoena has been signed by a court of competent jurisdiction;
(4) The United States Department of Justice for the purpose of representing or providing legal advice to the Treasury Department (Department) in a proceeding before a court, adjudicative body, or other administrative body before which the Department is authorized to appear, when such proceeding involves:
(A) The Department or any component thereof;
(B) Any employee of the Department in his or her official capacity;
(C) Any employee of the Department in his or her individual capacity where the Department of Justice or the Department has agreed to represent the employee; or
(D) The United States, when the Department determines that litigation is likely to affect the Department or any of its components, and
(5) Appropriate agencies, entities, and persons when: (a) the Department suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the Department has determined that as a result of the suspected or confirmed compromise that there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Electronic media and hard copy files.
Records may be retrieved by the name of the official or employee, contractor, detailee or intern, bureau head and/or chief deputy.
Secured in security containers and/or controlled space to which access is limited to Office of Security Programs security officials with the need to know.
Records are retained and disposed of in accordance with General Records Schedule 18, with the exception of the Record of Security Violation (retained for a period of two years) and the Security Orientation Acknowledgment, the Request and Receipt for Courier Card, and the Request and Receipt for Official Credential, the remaining
Assistant Director, (Information Security), Office of Security Programs, Room 3180 Treasury Annex, 1500 Pennsylvania Avenue NW., Washington, DC 20220.
Individuals wishing to be notified if they are named in this system of records, gain access to records maintained in this system, or seek to contest its content, must submit a written request containing the following elements: (1) Identify the record system; (2) identify the category and type of records sought; and (3) provide at least two items of secondary identification (See 31 CFR Part 1, Appendix A). Address inquiries to: Director, Disclosure Services, Department of the Treasury, 1500 Pennsylvania Ave. NW., Washington, DC 20220.
See “notification procedure” above.
See “notification procedure” above.
The sources of the information are employees of the Department of the Treasury. The information concerning any security violation is reported by Department of the Treasury security officials and by Department of State security officials as concerns Treasury or bureau personnel assigned to overseas U.S. diplomatic posts or missions.
None.
Financial Management Service, Fiscal Service, Department of the Treasury.
Notice.
This is Supplement No. 9 to the Treasury Department Circular 570, 2011 Revision, published July 1, 2011, at 76 FR 38892.
Surety Bond Branch at (202) 874–6850.
A Certificate of Authority as an acceptable surety on Federal bonds is hereby issued under 31 U.S.C. 9305 to the following company:
Federal bond-approving officers should annotate their reference copies of the Treasury Circular 570 (“Circular”), 2011 Revision, to reflect this addition.
Certificates of Authority expire on June 30th each year, unless revoked prior to that date. The Certificates are subject to subsequent annual renewal as long as the companies remain qualified (see 31 CFR part 223). A list of qualified companies is published annually as of July 1st in the Circular, which outlines details as to the underwriting limitations, areas in which companies are licensed to transact surety business, and other information.
The Circular may be viewed and downloaded through the Internet at
Questions concerning this Notice may be directed to the U.S. Department of the Treasury, Financial Management Service, Financial Accounting and Services Division, Surety Bond Branch, 3700 East-West Highway, Room 6F01, Hyattsville, MD 20782.
Financial Management Service, Fiscal Service, Department of the Treasury.
Notice.
This is Supplement No. 7 to the Treasury Department Circular 570, 2011 Revision, published July 1, 2011, at 76 FR 38892.
Surety Bond Branch at (202) 874–6850.
A Certificate of Authority as an acceptable surety on Federal bonds is hereby issued under 31 U.S.C. 9305 to the following company:
Federal bond-approving officers should annotate their reference copies of the Treasury Circular 570 (“Circular”), 2011 Revision, to reflect this addition.
Certificates of Authority expire on June 30th each year, unless revoked prior to that date. The Certificates are subject to subsequent annual renewal as long as the companies remain qualified (see 31 CFR part 223). A list of qualified companies is published annually as of July 1st in the Circular, which outlines details as to the underwriting limitations, areas in which companies are licensed to transact surety business, and other information.
The Circular may be viewed and downloaded through the Internet at
Questions concerning this Notice may be directed to the U.S. Department of the Treasury, Financial Management Service, Financial Accounting and Services Division, Surety Bond Branch, 3700 East-West Highway, Room 6F01, Hyattsville, MD 20782.
Financial Management Service, Fiscal Service, Department of the Treasury.
Notice.
This is Supplement No. 8 to the Treasury Department Circular 570, 2011 Revision, published July 1, 2011, at 76 FR 38892.
Surety Bond Branch at (202) 874–6850.
A Certificate of Authority as an acceptable surety on Federal bonds is hereby issued under 31 U.S.C. 9305 to the following company:
Federal bond-approving officers should annotate their reference copies of the Treasury Circular 570 (“Circular”), 2011 Revision, to reflect this addition.
Certificates of Authority expire on June 30th each year, unless revoked prior to that date. The Certificates are subject to subsequent annual renewal as long as the companies remain qualified (see 31 CFR part 223). A list of qualified companies is published annually as of July 1st in the Circular, which outlines details as to the underwriting limitations, areas in which companies are licensed to transact surety business, and other information.
The Circular may be viewed and downloaded through the Internet at
Questions concerning this Notice may be directed to the U.S. Department of the Treasury, Financial Management Service, Financial Accounting and Services Division, Surety Bond Branch, 3700 East-West Highway, Room 6F01, Hyattsville, MD 20782.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is taking action to implement certain of the sanctions imposed on three persons by the Secretary of State pursuant to the Iran Sanctions Act of 1996 (Pub. L. 104–172) (50 U.S.C. 1701 note) (“ISA”), as amended by the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (Pub. L. 111–195) (22 U.S.C. 8501–8551) (“CISADA”).
OFAC's action to implement the sanctions on FAL OIL COMPANY LTD, KUO OIL (S) PTE. LIMITED, and ZHUHAI ZHENRONG COMPANY was taken on January 12, 2012. The effective date for these actions is February 15, 2012 or the date of actual notice, whichever is earlier.
Assistant Director for Sanctions Compliance and Evaluation Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: (202) 622–2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
ISA, as amended by CISADA, requires the Secretary of State, pursuant to authority delegated by the President, to impose or waive sanctions on persons determined to have made certain investments in Iran's energy sector or to have engaged in certain activities relating to Iran's refined petroleum sector. Executive Order 13574 of May 23, 2011, “Authorizing the Implementation of Certain Sanctions Set Forth in the Iran Sanctions Act of 1996, as Amended,” requires the Secretary of the Treasury, pursuant to authority under the International Emergency Economic Powers Act (50 U.S.C. 1701–1706), to implement certain of the sanctions imposed by the Secretary of State under ISA, as amended by CISADA.
The five ISA sanctions that the Secretary of the Treasury is responsible for implementing are: (i) With respect to section 6(a)(3) of ISA, to prohibit any United States financial institution from making loans or providing credits to a person sanctioned under ISA consistent with section 6(a)(3) of ISA; (ii) with respect to section 6(a)(6) of ISA, to prohibit any transactions in foreign exchange that are subject to the jurisdiction of the United States and in which a person sanctioned under ISA has any interest; (iii) with respect to section 6(a)(7) of ISA, to prohibit any transfers of credit or payments between financial institutions or by, through, or to any financial institution, to the extent that such transfers or payments are subject to the jurisdiction of the United States and involve any interest of a person sanctioned under ISA; (iv) with respect to section 6(a)(8) of ISA, to block all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any United States person, including any overseas branch, of a person sanctioned under ISA, and provide that such property and interests in property may not be transferred, paid, exported, withdrawn, or otherwise dealt in; and (v) with respect to section 6(a)(9) of ISA, to restrict or prohibit imports of goods, technology, or services, directly or indirectly, into the United States from a person sanctioned under ISA.
The Secretary of State recently imposed ISA sanctions on three persons.
1. FAL OIL COMPANY LTD., Sultan Al Awal Street (Sheikh Sultan Bin Awal Road), Near Mina Sea Port, Near Mina Khalid Road, Al Khan Area, Sharjah, Sharjah, U.A.E., Telephone: 97165029999; Telephone: 97165280861; Telephone: 97165286666; Telephone: 97165283334; Telephone: 97165283323; Telephone: 97165022234; Telephone: 97165029999; Telephone: 97165029804; Telephone: 97165029914; Telephone: 97165029824; Telephone: 97165281737; Telephone: 97165029814; Telephone: 97165029825; Telephone: 97165029840; Telephone: 97165029863; Telephone: 97165029842; Telephone: 97165029819; Telephone: 97165029836; Telephone: 97168029939; Fax: 97165281437; Fax: 97165280861:
The Director of OFAC has prohibited United States financial institutions from making loans or providing credits totaling more than $10,000,000 in any 12-month period to FAL OIL COMPANY LTD. unless it is engaged in activities to relieve human suffering and the loans or credits are provided for such activities.
2. KUO OIL (S) PTE. LIMITED, 200 Cantonment Road, #15–00, Southpoint, Singapore, 089763, Singapore, Telephone: 6563184677; Fax: 6562243040:
The Director of OFAC has prohibited United States financial institutions from making loans or providing credits totaling more than $10,000,000 in any 12-month period to KUO OIL (S) PTE. LIMITED unless it is engaged in activities to relieve human suffering and the loans or credits are provided for such activities.
3. ZHUHAI ZHENRONG COMPANY, Zhenrong Building, 121 DaTunli, Chaoyang District, Beijing, 100108, China, Telephone: 861052925900; Fax: 861052025900:
The Director of OFAC has prohibited United States financial institutions from making loans or providing credits totaling more than $10,000,000 in any 12-month period to ZHUHAI ZHENRONG COMPANY unless it is engaged in activities to relieve human suffering and the loans or credits are provided for such activities.
Wage and Hour Division, Department of Labor.
Notice of proposed rulemaking.
The Department of Labor's Wage and Hour Division proposes to revise certain regulations of the Family and Medical Leave Act of 1993 (FMLA or the Act), primarily to implement recent statutory amendments to the Act. This Notice of Proposed Rulemaking (NPRM) proposes regulations to implement amendments to the military leave provisions of the FMLA made by the National Defense Authorization Act for Fiscal Year 2010, which extends the availability of FMLA leave to family members of members of the Regular Armed Forces for qualifying exigencies arising out of the servicemember's deployment; defines those deployments covered under these provisions; and extends FMLA military caregiver leave to family members of certain veterans with serious injuries or illnesses. This NPRM also proposes to amend the regulations to implement the Airline Flight Crew Technical Corrections Act, which established new FMLA leave eligibility requirements for airline flight crewmembers and flight attendants. In addition, the proposal includes changes concerning the calculation of leave; reorganization of certain sections to enhance clarity; the removal of the forms from the regulations; and technical corrections of inadvertent drafting errors in the current regulations.
Comments must be received on or before April 16, 2012.
You may submit comments, identified by Regulatory Information Number (RIN) 1235–AA03, by electronic submission through the Federal eRulemaking Portal
Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S–3510, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693–0406 (this is not a toll-free number). Copies of this rule may be obtained in alternative formats (large print, Braille, audio tape or disc), upon request, by calling (202) 693–0675 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1–877–889–5627 to obtain information or request materials in alternative formats.
Questions of interpretation and/or enforcement of the agency's regulations may be directed to the nearest WHD district office. Locate the nearest office by calling the WHD's toll-free help line at (866) 4US–WAGE ((866) 487–9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto the WHD's Web site for a nationwide listing of WHD district and area offices at
Subsequent to this rulemaking first appearing on the Department's Fall 2009 Regulatory Agenda, the FMLA was amended by the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), Public Law 111–84, and the Airline Flight Crew Technical Corrections Act (AFCTCA), Public Law 111–119. This rulemaking, therefore, proposes regulatory changes to implement these statutory amendments. The Department continues to review the impact of regulatory revisions published in the Family and Medical Leave Act of 1993, Final Rule on November 17, 2008 (2008 final rule). 73 FR 67934.
The Family and Medical Leave Act of 1993, 29 U.S.C. 2601
The FMLA was amended in January 2008 by enactment of the National
The FMLA was again amended in 2009 with the enactment of the FY 2010 NDAA on October 28, 2009, and the AFCTCA on December 21, 2009. Section 565(a) of the FY 2010 NDAA amended the military family leave provisions of the FMLA by extending qualifying exigency leave to eligible family members of the Regular Armed Forces, and military caregiver leave to include care provided to certain veterans. The AFCTCA amended the FMLA to include special eligibility requirements for airline flight crewmembers and flight attendants (referred to collectively as “airline flight crew employees”). A new definition of hours of service as it applies to airline flight crew employees was included in the eligibility provisions. Each of these provisions is discussed in detail in the section-by-section analysis that follows.
FMLA leave may be taken in a block, or under certain circumstances, intermittently or on a reduced leave schedule. In addition to providing job protected family and medical leave, employers must also maintain any preexisting group health plan coverage for an employee on FMLA protected leave under the same conditions that would apply if the employee had not taken leave. 29 U.S.C. 2614. Once the leave period is concluded, the employer is required to restore the employee to the same or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
Title I of the FMLA is administered by the U.S. Department of Labor and applies to private sector employers of 50 or more employees, public agencies, and certain Federal employers and entities, such as the U.S. Postal Service and Postal Rate Commission. Title II is administered by the U.S. Office of Personnel Management and applies to civil service employees covered by the annual and sick leave system established under 5 U.S.C. Chapter 63 and certain employees covered by other Federal leave systems. Title III established a temporary Commission on Leave to conduct a study and report on existing and proposed policies on leave and the costs, benefits, and impact on productivity of such policies. Title IV contains provisions governing the effect of the FMLA on more generous leave policies, other laws, and existing employment benefits. Finally, Title V originally extended the leave provisions to certain employees of the U.S. Senate and House of Representatives; however, such coverage was repealed and replaced by the Congressional Accountability Act of 1995. 2 U.S.C. 1301.
The FMLA generally covers employers with 50 or more employees. To be eligible to take FMLA leave, an employee must meet specified criteria, including employment with a covered employer for at least 12 months, performance of a specified number of hours of service in the 12 months prior to the start of leave, and work at a location where there are at least 50 employees within 75 miles.
The FMLA required the Department to issue initial regulations to implement Title I and Title IV of the FMLA within 120 days (by June 5, 1993) with an effective date of August 5, 1993. The Department published an NPRM in the
After publication, the Department invited further public comment on the interim regulations. 58 FR 45433. During this comment period, the Department received a significant number of substantive and editorial comments on the interim regulations from a wide variety of stakeholders. Based on this second round of public comments, the Department published final regulations to implement the FMLA on January 6, 1995. 60 FR 2180. The regulations were amended February 3, 1995 (60 FR 6658) and March 30, 1995 (60 FR 16382) to make minor technical corrections. The final regulations went into effect on April 6, 1995.
On December 1, 2006, the Department published a Request for Information (RFI) in the
The Department published an NPRM in the
Section 565(a) of the FY 2010 NDAA, enacted on October 28, 2009, amends the military family leave provisions of the FMLA. Public Law 111–84. The FY 2010 NDAA expands the availability of qualifying exigency leave and military caregiver leave. Qualifying exigency leave, which was made available to family members of the National Guard and Reserve components under the FY 2008 NDAA, is expanded to include family members of the Regular Armed
The FY 2010 NDAA amendments expand the definition of a serious injury or illness for military caregiver leave for current members of the Armed Forces to include an injury or illness that existed prior to service and was aggravated in the line of duty on active duty. 29 U.S.C. 2611(18)(A). These amendments also expand the military caregiver leave provisions of the FMLA to allow family members to take military caregiver leave to care for certain veterans. The definition of a covered servicemember, which is the term the Act uses to indicate the group of military members for whom military caregiver leave may be taken, is broadened to include a veteran with a serious injury or illness who is receiving medical treatment, recuperation, or therapy, if the veteran was a member of the Armed Forces at any time during the period of five years preceding the date of the medical treatment, recuperation, or therapy. 29 U.S.C. 2611(15)(B). The amendments define a serious injury or illness for a veteran as a “qualifying (as defined by the Secretary of Labor) injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.” 29 U.S.C. 2611(18)(B).
As was the case with the FY 2008 NDAA, the FY 2010 NDAA is silent as to the effective date of the FMLA amendments. Because the FY 2008 NDAA required the Secretary of Labor to define the term “qualifying exigency”, the Department took the position that employers were not obligated to provide qualifying exigency leave to employees until the Department defined the term through regulation. 73 FR 7925. In contrast, the Department viewed the military caregiver leave provisions of the FY 2008 NDAA as being effective as of January 28, 2008, the signing date of the amendment.
On December 21, 2009, the AFCTCA was enacted, establishing a special minimum hours of service eligibility requirement for airline flight crew employees. The AFCTCA provides that an airline flight crew employee will meet the hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent) and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months. Airline flight crew employees continue to be subject to the FMLA's other eligibility requirements.
The AFCTCA is silent as to its effective date. Because the AFCTCA is explicit about how to calculate the hours of service requirement for airline flight crew employees, it is the Department's position that the amendment became effective on the date of enactment. While the AFCTCA authorizes the Department to promulgate regulations on how to calculate the FMLA leave entitlement for airline flight crew employees, the authorization is permissive and does not require the Department to engage in rulemaking (unlike the FY 2010 NDAA provision requiring the Department to define serious injury or illness of a veteran).
Because the Department is not statutorily required to issue regulations to effectuate the AFCTCA, and employers can provide leave to airline flight crew employees under the current FMLA regulations, it is the Department's position that employees became entitled to take leave under the AFCTCA as of December 21, 2009. Until the Department issues a final rule specifically addressing calculating FMLA leave usage for flight crew employees, the Department will exercise its discretion in assessing employer compliance, in light of the individual facts and circumstances, with current § 825.205.
In complying with Executive Order 13563, “Improving Regulation and Regulatory Review,” the Department sought public comment in March 2011 to inform its design of a framework to review its significant rules. The review would determine whether these rules are obsolete, unnecessary, unjustified, excessively burdensome, counterproductive, or duplicative of other Federal regulations. Specifically, the Department sought comment on which regulations should be considered for review, expansion, or modification. The Department utilized an interactive Web site (
The Department received three comments concerning the FMLA. The first commenter requested clarification on § 825.218, regarding substantial and grievous economic injury. Upon review of the comment, the Department determined that there was no need to clarify this section through regulatory change.
The second comment the Department received concerned § 825.204, “Transfer of an Employee to an Alternative Position During Intermittent Leave or Reduced Schedule Leave.” The commenter suggested extending the employer's ability to transfer an employee to an alternative positive for
The last comment that the Department received suggested excluding from the Act's protections medical conditions that the commenter believes are subjectively determined. The regulations provide an objective definition of “serious health condition” as well as a process for employers to request a certification of a serious health condition from the employee's (or family member's) health care practitioner. Additionally, where the employer has reason to doubt the validity of the initial certification, the employer may require a second and, if necessary, third opinion from a health care practitioner. Given the procedures available for ensuring certification of a serious health condition by a health care practitioner, the Department does not believe that issuing further regulatory changes at this time is warranted.
The following is a section-by-section analysis of the proposed revisions to the FMLA regulations. The primary sections of the regulations with proposed revisions to implement the FY 2010 NDAA amendments are: § 825.126 (Leave because of a qualifying exigency); § 825.127 (Leave to care for a covered servicemember with a serious injury or illness); § 825.309 (Certification for leave taken because of a qualifying exigency); and § 825.310 (Certification for leave taken to care for a covered servicemember (military caregiver leave)). Less substantive changes are proposed to § 825.122 (Definitions of spouse, parent, son or daughter, next of kin of a covered servicemember, adoption, foster care, son or daughter on active duty or call to active duty status, son or daughter of a covered servicemember, and parent of a covered servicemember) and § 825.800 (Definitions) to reflect new definitions related to military family leave. The primary sections of the regulations with proposed revisions to implement the AFCTCA are: § 825.110 (Eligible employee); § 825.205 (Increments of FMLA leave for intermittent or reduced schedule leave); § 825.500 (Record-keeping requirements); and § 825.800 (Definitions) to include definitions specific to airline flight crew employees.
The Department further proposes to move the definitions section of the regulations from § 825.800 to § 825.102, which is currently reserved. The Department believes that placing the definitions section at the beginning of the regulations is more helpful to the reader, and consistent with other regulations implementing statutes administered by the WHD. Unless specifically discussed, no further substantive changes are proposed to this section.
The Department intends to make corresponding minor changes to the FMLA poster (WHD publication 1420), the Notice of Eligibility and Rights and Responsibilities (Form WHD–381), the Certification for Qualifying Exigency Leave for Military Family Leave (Form WHD–384), and the Certification for Serious Injury or Illness of a Covered Servicemember for Military Family Leave (Form WHD–385) to reflect the FY 2010 NDAA amendments and the AFCTCA. The Department also intends to develop a new form for the certification for the serious injury or illness of a covered veteran. The Department also proposes to remove the optional-use forms and notices from the regulations' Appendices. The removed forms and notices are medical certification forms WH–380–E (Certification of Health Care Provider—Employee), WH–380–F (Certification of Health Care Provider—Family Member), WH–384 (Certification of Qualifying Exigency for Military Family Leave), and WH–385 (Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave); notification forms WH–381 (Notice of Eligibility and Rights & Responsibilities) and WH–382 (Designation Notice to Employee of FMLA Leave); and the Notice to Employees of Rights under FMLA (WH Publication 1420).
The Department's prototype forms are intended to facilitate the information collection requirements of the FMLA. These information collections are subject to the requirements of the Paperwork Reduction Act of 1995 (PRA). The Department, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information every three years in accordance with the requirements of the PRA. Substantive changes to the forms as they appear in the Appendices require additional and separate rulemaking activities.
The PRA clearance process has sometimes resulted in updates to the forms that differed from the version of the forms that appeared in the Appendices to the regulations. The Department believes that multiple versions of the forms have created needless confusion for the public, and in an effort to lessen this confusion the Department proposes to remove the forms from the regulations. The forms will continue to be available on the WHD Web site. The Department believes that removing the forms from the regulations, and thereby streamlining the clearance process, will permit the forms to be more expeditiously amended in response to statutory and other changes, as well as suggestions from the public. This will ensure that the most accurate and up-to-date forms are available to the public. Although the Department is proposing to remove the forms from the regulations, this proposed change does not alter the Department's belief that the forms facilitate employer and employee compliance with their respective obligations under the FMLA. Employers are permitted to use forms other than those issued by the Department so long as they do not require information beyond that specified in the regulations.
Minor changes to more accurately reflect the new military family leave and airline flightcrew employee eligibility provisions or to delete references to Appendices for prototype forms or notices, are proposed at: §§ 825.100, 825.101, 825.107, 825.112, 825.200, 825.213, 825.300, 825.302, 825.303 and 825.306. The Department also proposes to correct inadvertent drafting errors that were made in the 2008 final rule, including correcting the cross-references in current § 825.200(g) and (f), and inserting the word “spouse” in the first lines of § 825.202(b) and (b)(1). The Department also proposes to include the word “the” in the statutory phrase “in line of duty” where used in the regulations. The URL for the WHD Web site has also been updated to link
The Department proposes to add a definition of “covered servicemember” as new paragraph (a) of this section to reflect the addition of covered veterans as covered servicemembers under the FY 2010 NDAA. As a result, the Department proposes to renumber the paragraphs that follow. The Department also proposes to change the term “active duty” to “covered active duty” in each place it appears in both the title of this section and in paragraph (g), and to update the reference in this paragraph to proposed § 825.126(a)(5).
Section 585 of the FY 2008 NDAA provided that eligible employees of covered employers may take FMLA leave for any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation. Public Law 110–181; § 585(a). The FY 2008 NDAA defined “active duty” as a call or order to active duty under a provision of law referred to in 10 U.S.C. 101(a)(13)(B).
The FY 2010 NDAA further amends the FMLA to permit an eligible employee to take FMLA leave for any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is on covered active duty, or has been notified of an impending call or order to covered active duty in the Armed Forces. Public Law 111–84, § 565(a)(1)(B);
Section 825.126 is currently organized into two parts: (a) The specific circumstances under which qualifying exigency leave may be taken; and (b) an employee's entitlement to qualifying exigency leave. The Department proposes to keep these two provisions, but reverse the order in which they appear. The Department has learned from employers and employees that there is confusion about the military family provisions. The Department believes that it is more logical to outline an employee's entitlement to qualifying exigency leave first, and then to specify the circumstances under which the employee may take qualifying exigency leave. The Department expects that this reordering will be less confusing to the public. Thus, proposed § 825.126(a) covers an employee's entitlement to qualifying exigency leave (currently addressed in § 825.126(b)) and proposed § 825.126(b) identifies the specific circumstances under which qualifying exigency leave may be taken (currently addressed in § 825.126(a)). As discussed below, the Department further proposes to revise § 825.126 to incorporate the FY 2010 NDAA amendments.
The Department proposes to substitute in this section (as well as throughout the regulations wherever the term appears) “covered active duty” for “active duty” to incorporate the FY 2010 NDAA statutory language. The Department also proposes to delete references in this section (as well as throughout the regulations wherever the term appears) to “covered military member” and instead use the generic term “military member” or “member” to refer to members of the Armed Forces on covered active duty as defined by the statute. As discussed above, the FY 2008 NDAA restricted entitlement to qualifying exigency leave to an employee whose parent, spouse, son, or daughter is a member of the National Guard and Reserves under an impending call or order to active duty in support of a contingency operation. In the 2008 final rule, the Department introduced the term “covered military member” to reflect that the military member must be the parent, spouse, son or daughter of the employee. This term has also come to reflect the restrictive nature of qualifying exigency leave under the FY 2008 NDAA,
Current § 825.126(a) states the statutory entitlement that eligible employees may take FMLA leave while the employee's spouse, son, daughter, or parent is on active duty or call to active duty status (this paragraph continues by listing the specific qualifying exigencies for which leave may be taken). Similarly, proposed § 825.126(a) sets out the statutory entitlement that an eligible employee may take leave for any qualifying exigency arising out of the covered active duty or call to covered active duty status of the employee's
Proposed § 825.126(a)(1) defines “covered active duty or call to covered active duty” status for a member of the Regular Armed Forces as “duty under a call or order to active duty (or notification of an impending call or order to covered active duty) during the deployment of the member with the Armed Forces to a foreign country,” and states that the active duty orders will generally specify if the member's deployment is to a foreign country. In accordance with the FY 2010 NDAA, the Department deleted the statement in current § 825.126(b)(2)(i) that family members of members of the Regular Armed Forces are not entitled to qualifying exigency leave.
Proposed § 825.126(a)(2) defines “covered active duty or call to covered active duty” status for a member of the Reserve components as duty under a call or order to active duty (or notification of an impending call or order to active duty) during the deployment of the member to a foreign country under a Federal call or order to active duty in support of a contingency operation pursuant to the provisions of law referred to in 10 U.S.C. 101(a)(13)(B). The provisions referred to in 10 U.S.C. 101(a)(13)(B) are 10 U.S.C. 688, 12301(a), 12302, 12304, 12305, 12406; 10 U.S.C. chapter 15; and any other provision of law during a war or during a national emergency declared by the President or Congress. While FY 2010 NDAA struck the definition of “contingency operation” from the FMLA and deleted the reference to “contingency operation” in 29 U.S.C. 2612(a)(1)(E), the Department believes that the reference to 10 U.S.C. 101(a)(13)(B) in the definition of covered active duty for members of the Reserve components continues to require that members of the Reserve components be called to duty in support of a contingency operation in order for their family members to be entitled to qualifying exigency leave. Therefore, proposed § 825.126(a)(2) maintains the language in current § 825.126(b)(2) regarding duty in support of a contingency operation. The Department also proposes to use the word “Federal” in proposed paragraph § 825.126(a)(2) in describing the covered calls or orders to active duty in order to make clear that only Federal calls to duty will meet the definition of covered active duty.
Proposed paragraph § 825.126(a)(2)(i) lists the specific Reserve components currently found in § 825.126(b)(2)(i). Proposed paragraph § 825.126(a)(2)(ii) follows current § 825.126(b)(3) in that it provides that the active duty orders of a member of the Reserve components will generally specify if the covered active duty military member is serving in support of a contingency operation by citing the relevant section of Title 10 of the United States Code and/or by reference to the specific name of the contingency operation as is stated in current § 825.126(b)(3). Proposed § 825.126(a)(2)(ii) also states that the active duty orders will specify that the deployment is to a foreign country.
The Department proposes in paragraph § 825.126(a)(3) to define deployment of the member with the Armed Forces to a foreign country as deployment to areas outside of the United States, the District of Columbia, or any Territory or possession of the United States, including deployment in international waters. This definition is consistent with the Department's understanding of the term “deployment” based on consultations with the Department of Defense (DOD). The Department understands that servicemembers are assigned to a home station
In addition, the definition of “deployment” in proposed paragraph § 825.126(a)(3) includes deployment of the military member to active duty in international waters. The Department understands Congress to have intended to extend the entitlement of qualifying exigency leave to family members of all branches of the military equally. The Department seeks to ensure that family members of the Navy, Coast Guard, and other military members deployed to duty in international waters have access to qualifying exigency leave. The Department seeks comment on the types of duty assignments for members of the Navy and Coast Guard that will satisfy the definition of deployment.
The Department proposes in § 825.126(a)(4) to specify, as current § 825.126(b)(2)(ii) does, that covered deployments are limited to Federal calls to active duty. Finally, the Department proposes to move the definition of “son or daughter on active duty or call to active duty status” currently located at § 825.126(b)(1) to paragraph § 825.126(a)(5).
Current § 825.126(a) lists the reasons, divided into eight categories, for which an eligible employee may take qualifying exigency leave. The qualifying exigency leave categories are: (1)
Current § 825.126(a)(1) sets forth the requirements for
Current § 825.126(a)(3),
Current § 825.126(a)(6),
The Department is also proposing to add language to § 825.126(7),
The Department proposes no additional qualifying exigencies for which FMLA leave may be taken, but invites comment on whether additional qualifying exigencies should be added in light of the extension of this leave entitlement to family members of members of the Regular Armed Forces. The Department notes that the categories of leave in the current and proposed regulations include activities that may take place in advance of deployment (pre-deployment activities), during deployment, and limited activities that occur after deployment has ended (post-deployment activities). While the FY 2010 NDAA defines “covered active duty” as “duty during the deployment of the member,” the Department continues to believe that it is appropriate to include certain pre-deployment activities to reflect Congressional intent to include exigencies arising from notification of “an
No other changes are proposed to § 825.126.
Section 585(a) of the FY 2008 NDAA amended the FMLA to allow an eligible employee who is a covered servicemember's spouse, son, daughter, parent, or next of kin to take up to 26 workweeks of leave during a “single 12-month period” to care for a servicemember receiving treatment for a serious injury or illness (“military caregiver leave”). Such leave can be taken to provide care to a current member of the Armed Forces, including the National Guard and Reserves. These provisions were incorporated in current § 825.127, which explains an employee's entitlement to military caregiver leave and the specific circumstances under which military caregiver leave may be taken.
Section 565(a) of the FY 2010 NDAA further amends the FMLA to revise the definition of “covered servicemember” to include certain veterans and to expand coverage for military caregiver leave to eligible employees caring for such veterans with a qualifying (as defined by the Secretary of Labor) injury or illness. 29 U.S.C. 2611(15)(B). It also amends the FMLA to revise the definition of serious injury or illness for current members of the Armed Forces to include conditions that existed before the covered servicemembers' active duty but were aggravated by service in the line of duty on active duty. 29 U.S.C. 2611(18)(A). A serious injury or illness for a veteran similarly includes conditions that existed before the veteran's active duty but were aggravated by service in the line of duty on active duty and that manifested before or after the servicemember became a veteran. 29 U.S.C. 2611(18)(B).
The Department proposes to reorganize § 825.127 to reflect the substantive changes to the military caregiver leave provisions pursuant to the FY 2010 NDAA amendments. In addition, the proposal adds the term “military caregiver leave” to the title of this section for clarity. Current paragraph § 825.127(b), which defines the family members qualified to take caregiver leave, is moved to proposed paragraph § 825.127(d). Current paragraph § 825.127(d), which addresses circumstances when a husband and wife who are both eligible for FMLA leave work for the same employer, is moved to proposed § 825.127(f). Because no substantive changes are proposed to these sections they are not discussed further.
Current § 825.127(a) provides that an eligible employee may take FMLA leave to care for a current member of the Armed Forces, including National Guard and Reserves members, with a serious injury or illness incurred in the line of duty on active duty for which the servicemember is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list. This section of the current regulations incorporates the statutory definition of a covered servicemember pursuant to the FY 2008 NDAA, and states that the definition of a covered servicemember does not include former members of the Regular Armed Forces, former members of the National Guard and Reserves, and members on the permanent disability retired list. Consistent with the FY 2010 NDAA
Proposed § 825.127(b) provides the definition of covered servicemember for current members of the Armed Forces and for covered veterans. Proposed § 825.127(b)(1) defines covered servicemember as it applies to current members of the Armed Forces, including members of the National Guard or Reserves. This definition mirrors the statutory definition. 29 U.S.C. 2611(15)(A). This paragraph also incorporates the definition of “outpatient status” from current § 825.127(a)(2), which is applicable only to current members of the Armed Forces.
Proposed § 825.127(b)(2) defines covered servicemember, as it applies to veterans, to mean a covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. It further defines a covered veteran as an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. This definition combines the FY 2010 NDAA statutory definition of a “veteran” (which incorporates the definition of veteran in 38 U.S.C. 101) and the statutory limitations on the inclusion of veterans as covered servicemembers. 29 U.S.C. 2611(15)(B) (a veteran will be a covered servicemember if he or she is “undergoing medical treatment, recuperation, or therapy for a serious injury or illness [and the veteran] was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.”); 29 U.S.C. 2611(19) (adopting 38 U.S.C. 101 definition of veteran, which defines the term as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable”). The Department proposes to measure the five-year period from the date the employee first takes leave to care for the veteran, and to permit an employee to continue leave begun within the five-year period until the end of the applicable “single 12-month period”. A veteran will be considered a covered veteran if he or she was a member of the Armed Forces within the five-year period immediately preceding the date the requested leave is to begin. If the leave commences within the five-year period, the employee may continue leave for the applicable “single 12-month period”, even if it extends beyond the five-year period. The Department believes this interpretation is consistent with the intent of Congress in limiting FMLA leave to care for certain veterans to a specified time period. This interpretation may exclude veterans of previous conflicts (
Proposed § 825.127(c) provides the definition of serious injury or illness for current members of the Armed Forces and for covered veterans. Proposed § 825.127(c)(1) incorporates the definition of serious injury or illness of a current servicemember from current § 825.127(a)(1), and expands it to include an injury or illness that existed prior to the beginning of the member's active duty but was aggravated by service in the line of duty on active duty in the Armed Forces, consistent with the statutory definition of this term as amended by the FY 2010 NDAA. 29 U.S.C. 2611(18)(A).
For both current members of the Armed Forces and covered veterans, a serious injury or illness that existed before the beginning of the servicemember's active duty and was aggravated by service in the line of duty on active duty includes both conditions that were noted at the time of entrance into active service and conditions that the military was unaware of at the time of entrance into active service but that are later determined to have existed at that time. A preexisting injury or illness will generally be considered to have been aggravated by service in the line of duty on active duty where there is an increase in the severity of such injury or illness during service, unless there is a specific finding that the increase in severity is due to the natural progression of the injury or illness. It is the Department's understanding that individuals will not be accepted for military service in the Regular or Reserve components unless they are: (1) Free of contagious diseases that probably will endanger the health of other personnel; (2) free of medical conditions or physical defects that may require excessive time lost from duty for necessary treatment or hospitalization, or probably will result in separation for medical unfitness; (3) medically capable of satisfactorily completing required training; (4) medically adaptable to the military environment without the necessity of geographical area limitations; and (5) medically capable of performing duties without aggravation of existing physical defects or medical conditions. DOD Instruction Number 6130.03 on Medical Standards for Appointment, Enlistment or Induction in the Military Service. In light of these standards, the Department seeks comments, particularly from military members and their families, concerning types of injuries or illnesses that may exist prior to service and be aggravated in the line of duty on active duty to such an extent as to render the servicemember unable to perform the duties of the member's office, grade, rank, or rating.
The FY 2010 NDAA requires the Department to define a qualifying serious injury or illness for a veteran. Proposed § 825.127(c)(2) defines serious injury or illness for a covered veteran with three alternative definitions set out in paragraphs (c)(2)(i), (c)(2)(ii), and (c)(2)(iii). Proposed § 825.127(c)(2)(i) defines a serious injury or illness of a covered veteran as a serious injury or illness of a current servicemember, as defined in § 825.127(c)(1), that continues after the servicemember becomes a veteran. Thus, if a veteran suffered a serious injury or illness when he or she was a current member of the Armed Forces and that same injury or illness continues after the member leaves the Armed Forces and becomes a veteran, the injury or illness will continue to qualify as a serious injury or illness warranting military caregiver leave. The Department believes that allowing qualifying family members to take leave to care for covered veterans who continue to suffer from these serious injuries or illnesses is consistent with Congressional intent, as evidenced by the extension of military caregiver leave provisions for veterans for a defined five-year period. As explained below, the Department believes that an eligible employee may take military caregiver leave for the same family member based on the same serious injury or illness when the family member is a current member of the Armed Forces and when the family member becomes a covered veteran.
Proposed § 825.127(c)(2)(ii) defines a serious injury or illness for a covered veteran as a physical or mental condition for which the covered veteran has received a Department of Veterans Affairs (VA) Service Related Disability Rating (VASRD) of 50 percent or higher and such VASRD rating is based, in whole or part, on the condition precipitating the need for caregiver leave. The Department's review indicates that a VASRD disability rating of 50 percent or greater encompasses disabilities or conditions such as amputations, severe burns, post traumatic stress syndrome, and severe traumatic brain injuries. The Department believes that there should be parity between a serious injury or illness of a covered veteran and a serious injury or illness for a current member of the Armed Forces, but also recognizes that veterans are in different circumstances than active duty military members. The standard for a serious injury or illness for current members of the Armed Forces cannot be directly applied to veterans because a veteran no longer has a military office, grade, rank, or rating against which to measure a condition that does not manifest until after the servicemember becomes a veteran. Further, veterans, unlike current military members, may participate in the civilian workforce.
The Department believes that a serious injury or illness that substantially impairs a veteran's ability to secure or follow a substantially gainful occupation by reason of service-connected disability should be a qualifying injury or illness for a covered veteran. The Department considered proposing the VASRD rating equal to the level at which, under VA regulations, the veteran is considered to be totally disabled,
The Department also considered proposing the VASRD disability rating at a percentage below 50 percent. However, the Department determined that a lower threshold may capture injuries and illnesses that Congress did not intend to qualify as serious injuries or illnesses for which employees would be entitled to 26 workweeks of FMLA leave. For example, after a review of the VASRD rating schedules, the Department understands that a 30 percent VASRD rating may encompass conditions such as the loss of one ear (
The Department is also concerned that establishment of a two-tier test, as used by the VA to reflect single and multiple disabilities, may be unnecessarily complicated for the purpose of defining a qualifying serious injury or illness for military caregiver leave. Therefore, after a careful review of VA regulations, the Department proposes a single threshold of an overall VASRD rating of 50 percent or higher (whether based on a single or multiple disabilities) as a qualifying serious injury or illness.
The Department seeks comments on several aspects of this proposed definition. First, the Department invites comment on whether the VASRD rating of 50 percent is the appropriate level of injury or illness to support a request for military caregiver leave. The Department specifically seeks comment on whether the VASRD rating of 50 percent is the proper percentage of disability to capture all injuries and illnesses that would warrant an employee taking military caregiver leave to care for a covered veteran. Second, while the standard reflects the VA's determination of a disability with respect to benefits, the Department seeks comment on whether a VASRD rating appropriately correlates to the veteran's need for care and ability to work, attend school or perform other daily activities. The Department also seeks comment on whether this standard should expressly reference limitations in a veteran's ability to attend school or perform other regular daily activities. The Department invites comment on whether there are circumstances in which a veteran would be able to work but would nonetheless need care because of an inability to perform other daily activities.
Proposed § 825.127(c)(2)(iii) is the third alternative definition of a serious injury or illness for a covered veteran; it covers injuries and illnesses that are not technically within the definition proposed in (c)(2)(i) or (ii), but are of similar severity. The Department recognizes that covered veterans may have injuries or illnesses that are similar in severity to the injuries or illnesses qualifying under proposed (c)(2)(i) but for which the veterans did not obtain certification as a serious injury or illness when they were current members of the military. Similarly, the Department recognizes that covered veterans may have injuries or illnesses that are similar in severity to the injuries or illnesses qualifying under proposed (c)(2)(ii) but for which the veterans have not received a VASRD rating. The Department also recognizes that covered veterans may need a family member to provide care for injuries or illnesses that, absent treatment, would be similar in severity to those qualifying under (c)(2)(i) and (ii). This third alternative definition of serious injury or illness for a covered veteran is intended to capture these types of injuries and illnesses.
The Department proposes to define a serious injury or illness for a covered veteran in the third alternative as a physical or mental condition that substantially impairs the veteran's ability to secure or follow a substantially gainful occupation by reason of a service-connected disability, or would do so absent treatment. This proposed definition is intended to replicate the VASRD 50 percent disability rating standard under (c)(2)(ii) for situations in which the veteran does not have a service-related disability rating from the VA. The Department
As noted above, the standard in (c)(2)(ii) is based on VA regulations and disability determinations. For example, a covered veteran with post traumatic stress disorder who is usually able to work may need care from an employee-family member when an event triggers a reoccurrence of the associated depression and anxiety to a level that the veteran would be unable to work absent treatment. Although paragraph (c)(2)(iii) is intended to have the same degree of incapacity as that set forth in paragraph (c)(2)(ii), a certification of serious injury or illness under this section serves only to establish that the veteran has a condition that entitles his or her family member to military caregiver leave under the FMLA. Such a determination provides no basis for a determination of status, rights, or benefits for the VA or other agencies. The VA is the sole agency qualified to make any rating determination for purposes of VA-related rights or benefits.
The Department seeks comments from employees, employers, health care providers, and veterans as well as current military members on this proposed alternative definition. Specifically, the Department seeks comments on whether this proposal will be effective at capturing the serious injuries and illnesses that covered veterans suffer for which caregiving is needed by qualifying employee-family members and which will not be covered under proposed paragraphs (c)(2)(i) and (ii). In addition, the Department seeks comments on the ability of health care providers to certify a serious injury or illness for a covered veteran and the ability of employers to administer leave associated with a serious injury or illness for a covered veteran under this proposed definition. The Department is particularly concerned that this provision comprehensively encompasses traumatic brain injuries, post traumatic stress disorder, and other such conditions that may not manifest until some time after the member has become a veteran. Therefore, the Department also seeks comment on the types of injuries and illnesses that typically manifest after the member becomes a veteran, whether a family member is needed to care for the veteran for such injuries or illness and, if so, whether this proposed definition would cover such situations.
The Department notes another means through which the severity of an injured veteran's disability may be assessed. VA's Program of Comprehensive Assistance for Family Caregivers (
In an effort to minimize the burden placed on military families, the Department has worked with VA to understand the requirements that must be met to enroll in VA's Program of Comprehensive Assistance for Family Caregivers and utilize FMLA leave. Based on the eligibility requirements for VA's Program of Comprehensive Assistance for Family Caregivers, the Department believes that most veterans who qualify for the program meet the requirement of having a serious injury or illness as defined in this proposal for the purpose of FMLA caregiver leave. Accordingly, the Department is considering adding a fourth alternative to the definition of serious injury or illness of a veteran, enrollment in VA's Program of Comprehensive Assistance for Family Caregivers, and invites comment on whether this would appropriately help reduce the burden placed on military and veterans' families in being able to take FMLA leave.
As with the three definitions proposed in paragraphs (c)(2)(i)–(iii), enrollment in VA's Program of Comprehensive Assistance for Family Caregivers would establish only that the veteran has a serious injury or illness, and would not mean that the caregiver is automatically entitled to take FMLA leave. The person seeking to take FMLA military caregiver leave must qualify as a family member under the FMLA and meet the other eligibility criteria, and the veteran must meet the definition of a “covered veteran” in proposed § 825.127(b)(2).
The Department seeks comment, especially from caregivers and veterans who are currently enrolled in VA's Program of Comprehensive Assistance for Family Caregivers, on whether including enrollment in this program as another possible definition for establishing a qualifying serious injury or illness required to take FMLA leave would be helpful to veterans and caregivers in seeking FMLA leave for a covered veteran. Finally, the Department welcomes comments proposing other definitions not included above that would achieve the goals that the proposed definitions seek to achieve—namely, coverage of injuries or illnesses that covered veterans experience that approximate the severity of a serious injury or illness for current members of the military as defined in the statute and regulations.
Current § 825.127(c) explains how the “single 12-month period” in which eligible employees are entitled to take up to 26 workweeks of military caregiver leave is applied. This provision is moved to proposed paragraph § 825.127(e) (the numbering of the subparagraphs within this provision remain the same). Proposed paragraph § 825.127(e)(2) (current § 825.127(c)(2)) provides that the 26-workweek entitlement is to be applied as a per-covered servicemember, per-injury entitlement. Because the FY 2010 NDAA establishes two distinct categories of covered servicemembers (
The Department notes that under this provision, an eligible employee may take up to 26 workweeks of leave to care for the same covered servicemember with a subsequent serious injury or illness. As the Department explained in the 2008 final rule, a subsequent serious injury or illness of the same covered servicemember could arise either from an injury or illness incurred by a current member in a subsequent deployment, or from the subsequent manifestation of a second serious injury or illness to either a current member or a covered veteran that relates back to the initial incident. 73 FR 67969. For example, if a servicemember is injured in the line of duty on active duty and suffers severe burns, an eligible employee is entitled to 26-workweeks of caregiver leave. If the servicemember later manifests a traumatic brain injury that was incurred in the same incident as the burns, the eligible employee would be entitled to an additional 26-workweeks of leave to care for the same servicemember. The Department requests comment on whether the current regulatory language is sufficiently clear as to the situations in which an employee would be permitted to take a second period of military caregiver leave due to the subsequent serious injury or illness of the same covered servicemember.
Lastly, the Department proposes to make minor edits to internal references throughout this paragraph to reflect the reorganized structure of this section, to delete references to “as described in paragraph (c) of this section” as unnecessary, and to make two minor changes to paragraph (e)(3) (current § 825.127(c)(3)): adding internal numbering to facilitate readability, and changing “week” to “workweek” consistently throughout the paragraph.
The FY 2010 NDAA amends 29 U.S.C. 2613(f), which addresses certification for qualifying exigency leave. Accordingly, as it did in § 825.126, the Department proposes to substitute “covered active duty” for “active duty” wherever it appears in this section. Consistent with the proposed change in § 825.126, the Department also proposes to substitute “military member” or “member” for “covered military member” wherever it appears.
Proposed § 825.309(a) follows current § 825.309(a) and states that the first time an employee requests leave because of a qualifying exigency, an employer may require the employee to provide a copy of the military member's covered active duty orders or other documentation issued by the military which indicates that the military member is on covered active duty or call to covered active duty status, and the dates of the military member's covered active duty service. This information need only be provided once to the employer, unless a need for qualifying exigency leave arises out of a different call to covered active duty status of the same military member or the call to covered active duty status of a different military member. The Department proposes to delete the phrase “in support of a contingency operation” from current § 825.309(a) to reflect the expansion of qualifying exigency leave to family of the Regular Armed Forces. As discussed in § 825.126, the contingency operation requirement does not apply to members of the Regular Armed Forces.
As previously discussed, the FY 2010 NDAA amended the qualifying exigency provisions to require that both members of the Reserve components and members of the Regular Armed Forces be deployed to a foreign country in order for their service to be considered covered active duty entitling their family members to qualifying exigency leave. It is the Department's understanding that the military member's active duty orders will specify the location of the deployment and will provide sufficient information to establish that the duty is, in fact, covered active duty. Both current and proposed § 825.309(a) permit an employee to use either a copy of the military member's active duty orders or “other documentation issued by the military” to establish that the military member is on covered active duty or call to covered active duty status. The Department has received information from employees and employers indicating that family members have experienced difficulty obtaining copies of active duty orders or that the available documentation is insufficient to comply with current certification requirements. The Department specifically seeks feedback from the public on whether active duty orders of members of the Regular and Reserve components of the Armed Forces contain sufficient information to determine that the call to covered active duty involves deployment to a foreign country (and, in the case of the Reserve components that the member is being called up in support of a contingency operation), and, if not, what other documentation would meet the certification requirements. The Department also seeks comment on whether employees have experienced difficulty in obtaining copies of active duty orders or other military documents establishing their family member's covered service, and whether employers have experienced difficulty in confirming covered service.
As with other FMLA certifications, the certification process for qualifying exigency leave is optional for the employer. Accordingly, the proposal revises the regulatory language at § 825.309(a) to make it clear that new active duty orders or documentation do not automatically need to be provided; rather new active duty orders or documentation need only be provided upon request by the employer. The proposed change is consistent with the general certification process, which provides that an employer may require certification upon an employee request for qualifying exigency leave.
Current § 825.309(b) addresses information that may be required to support a request for qualifying exigency leave. Consistent with the proposed expansion of Rest and Recuperation qualifying exigency leave to be equivalent to the period of time the military member has for such leave, up to 15 days, the Department believes that it is appropriate for the employee to provide a copy of the military member's Rest and Recuperation orders in order to determine the specific leave period available. The Department therefore proposes a new § 825.309(b)(6) to require that certification of qualifying exigency leave for Rest and Recuperation include a copy of the members Rest and Recuperation leave orders, or other documentation issued by the military, and the dates of the leave. No other change is proposed to § 825.309(b).
Current § 825.126(c) identifies an optional-use Form WH–384 which may be used in requesting qualifying exigency leave and states that another form containing the same basic information may be used by an employer as long as no information beyond that specified in this section is required. As discussed above, the Department proposes to delete the optional-use forms from the Appendices to part 825. Accordingly, the Department proposes to delete the reference in current § 825.309(c) to Appendix H and proposes to add language explaining that Form WH–384 may be obtained from local Wage and
Current § 825.309(d) indicates that where a complete and sufficient certification is submitted in support of a request for leave, an employer may not request additional information from an employee. Where the qualifying exigency involves a third party, employers may contact the individual or entity for purposes of verifying the meeting or appointment and the nature of the meeting. The employee's permission is not required to conduct such verification, but the employer may not request additional information. Employers may also contact the appropriate unit of the DOD to verify that the military member is on active duty or call to active duty status; no additional information may be requested and the employee's permission is not required for such verification. The Department solicits information on how this provision has been working for employers and employees. The Department would like to know whether any privacy issues have arisen for employees, or whether any employees have been denied qualifying exigency leave because their employers have been unable to verify their leave requests. The Department also seeks information on whether employers have encountered any difficulties in making third party verifications, and if so, why and whether they have denied an employee leave as a result.
Section 825.310 sets forth the certification process and the elements of a complete certification for military caregiver leave. Current § 825.310(a) permits an employer to require that a request for leave to care for a covered servicemember with a serious injury or illness be supported by a certification issued by an authorized health care provider, defined as: (1) A DOD health care provider; (2) a VA health care provider; (3) a DOD TRICARE network authorized private health care provider; or (4) a DOD non-network TRICARE authorized private health care provider. Thus, current paragraph (a) limits the type of health care providers who may complete a medical certification for military caregiver leave for current members of the military.
Proposed paragraph § 825.310(a)(5) adds health care providers, as defined by regulation in § 825.125, as a fifth component to the definition of an authorized health care provider from whom medical certification can be obtained for a serious injury or illness. The Department understands that in some circumstances, for example when seeking treatment for a mental health condition, some current servicemembers may wish to seek care from a health care provider unaffiliated with DOD. The Department believes that a family member of a current servicemember who is seeking treatment outside of the military's network for an injury or illness that was incurred or aggravated in the line duty on active duty should be eligible for FMLA leave under this provision. As such, the Department no longer believes that it is appropriate to limit a current servicemember's selection of health care provider more than it is limited for an individual seeking FMLA leave for a serious health condition. The expansion of authorized health care providers will apply equally to covered servicemembers who are covered veterans. The Department understands that veterans may use private health care providers rather than DOD, VA, TRICARE network health care providers, and some veterans may no longer be entitled to seek care through DOD or VA affiliated health care providers. Veterans may also be covered by the private health care plans of a spouse or parent and may utilize the services of private health care providers through these plans. Whether it is because there is no VA center in the area or due to other circumstances, the Department believes that families of veterans should be able to rely upon the determination of the veteran's own private health care provider, who otherwise meets the definition of an FMLA health care provider at § 825.125, in determining if the treated condition is a qualifying serious injury or illness. The Department also believes that expanding the pool of health care providers will avoid increasing the administrative burdens on the VA and DOD. The Department invites comment on the proposal to allow any FMLA health care provider as defined in § 825.125 to certify a serious injury or illness for military caregiver leave.
While the Department believes that it is appropriate to include as authorized health care providers under this section health care providers as defined in § 825.125, the Department is nonetheless concerned that private health care providers will not have the specialized information available to DOD, VA, and TRICARE network health care providers that is necessary to make several of the military-related determinations, and may need to obtain that information from DOD or VA in order to make a determination of whether the condition is related to the covered servicemember's service and/or whether the condition meets the definition of serious injury or illness. The Department seeks comments related to the available processes for a private health care provider to obtain information related to whether an injury or illness was incurred in the line of duty while on active duty or whether the covered servicemember's injury or illness existed before beginning service and was aggravated by service in the line of duty while on active duty. The Department also seeks comments on whether a covered servicemember will have a copy of medical records from his or her military service, or would the covered servicemember, or family member, be able to access medical records or other documentation that would support the determination that an injury or illness was incurred in the line of duty while on active duty, and the types of documentation that may be available to the covered servicemember or family member. Specific to veterans, the Department seeks comment on whether a veteran or family member has access to documentation of a VASRD disability rating.
Current § 825.310(b) sets forth the information an employer may request from the health care provider in order to support the employee's request for leave. The Department proposes to modify paragraphs (b)(1)–(4), as discussed below. The Department proposes no other changes to § 825.310(b). Current § 825.310(b) permits an authorized health care provider who is unable to make certain military determinations to rely on determinations from an authorized DOD representative. In light of the extension of military caregiver leave to covered veterans, proposed § 825.310(b) indicates that an authorized health care provider may rely on military-related determinations from an authorized DOD representative or an authorized VA representative. Current § 825.310(b)(1) allows an employer to request certain information from the health care provider. Consistent with the Department's proposal to allow covered servicemembers to utilize any health care provider as defined in § 825.125, the Department proposes to add a new provision (b)(1)(v) clarifying that the medical certification may be provided by a health care provider as defined by § 825.125.
Current paragraph (b)(2) allows an employer to request information that specifies whether the covered servicemember's injury or illness was
Current § 825.310(b)(3) allows an employer to request the approximate date on which the serious injury or illness commenced and its probable duration. In light of the statutory amendments to the definition of serious injury or illness, proposed § 825.310(b)(3) allows an employer to request the approximate date on which the serious injury or illness commenced or was aggravated and its probable duration.
Current § 825.310(b)(4) allows an employer to request a statement of appropriate medical facts regarding the covered servicemember's health condition for which leave is requested and specifies what medical facts must be included in a certification in order to support the need for leave. The Department proposes to move the description of what medical facts must be included in the certification for a serious injury or illness of a current member of the military from current § 825.310(b)(4) to proposed § 825.310(b)(4)(i). Proposed § 825.310(b)(4)(i) retains the same requirements as in current paragraph (b)(4) that a sufficient certification for a serious injury or illness of a current member of the military must include information on whether the injury or illness may render the current servicemember unfit to perform the duties of the servicemember's office, grade, rank, or rating and whether the servicemember is receiving medical treatment, recuperation, or therapy. The Department further proposes to describe in § 825.310(b)(4)(ii) what medical facts must be included in the certification for an injury or illness of a covered veteran. Proposed § 825.310(b)(4)(ii) states that a sufficient certification for a serious injury or illness of a covered veteran must include information on whether the veteran is receiving medical treatment, recuperation, or therapy for an injury or illness that is a continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces; involves a physical or mental condition for which the veteran has received a VASRD rating of 50 percent or higher, and that such VASRD rating is based, in whole or in part, on the condition precipitating the need for caregiver leave; or, a physical or mental condition that substantially impairs the veteran's ability to secure or follow a substantially gainful occupation by reason of a service-connected disability or disabilities, or would do so absent treatment.
As noted earlier, the Department is considering adding enrollment into VA's Program of Comprehensive Assistance for Family Caregivers as another possible definition for establishing a qualifying serious injury or illness for a covered veteran. The Department seeks comments on whether the medical documentation required for enrollment in the VA's Program for Comprehensive Assistance for Family Caregivers provides sufficient medical facts to support the need for FMLA leave. The Department notes that under the current proposed definition of serious injury or illness of a veteran, medical documentation prepared in connection with the VA's Program of Comprehensive Assistance for Family Caregivers may be submitted as part of the FMLA certification process under proposed § 825.127(c)(2)(ii) and (c)(2)(iii). To the extent that additional information is necessary to establish a complete and sufficient FMLA certification (
Current § 825.310(c) outlines the information that employers may require from employees as part of the certification. No change is proposed to current § 825.310(c)(1)–(5). The Department proposes to add a new paragraph (c)(6) and renumber current paragraph (c)(6) as (c)(7). Proposed paragraph (c)(6) permits an employer to require that the employee or covered servicemember indicate whether the member is a veteran, the date of separation, and whether the separation was other than dishonorable. It also permits the employer to request documentation confirming this information, and permits the employee to provide a copy of the veteran's DD Form 214 or other proof of veteran status to satisfy such documentation requirement.
Current § 825.310(d) identifies an optional-use form that may be used to provide certification for military caregiver leave. As discussed above, the Department proposes to delete the forms from the Appendices and therefore proposes in paragraph (d) to delete the reference to Appendix H and instead to insert language stating that the applicable form may be obtained either from a local WHD office or the WHD Web site. The Department intends to amend current form WH–385 to reflect that a health care provider as defined in § 825.125 may certify a serious injury or illness for a current servicemember. The Department is also considering the development of a new form to capture the above identified information for military caregiver leave for a covered veteran. The Department seeks comments on whether it will be less confusing to develop two forms to use for military caregiver certification or whether adapting the current WH–385 would be preferable.
Current § 825.310(d) also provides that an employer may seek authentication and/or clarification of the certification for military caregiver leave; however, second and third opinions are not permitted. In the 2008 final rule, the Department reasoned that the statutory standard for determining whether a military member has a serious injury or illness is dependent on several determinations which can only be made by the military. Therefore, it would be inappropriate to permit second and third opinions regarding those determinations. 73 FR 68029. With the proposed change to allow families of covered servicemembers to rely upon the determination of health care providers unaffiliated with DOD, VA, or TRICARE, the certification process, when done by a private health care provider that is not one of the types identified in § 825.310(a)(1)–(4), is more akin to the certification process for the serious health condition of civilian family members. Therefore, the Department believes that in such situations there is no basis to prohibit employers from obtaining second and third opinions. Consequently, the
No changes are proposed for § 825.310(e), which addresses the use of “invitational travel orders” (ITO) or “invitational travel authorizations” (ITA) issued for medical purposes, in lieu of a certification form, other than to update internal references. However, the Department seeks comment on the effectiveness of the substitution of ITOs and ITAs in support of a need for military caregiver leave.
Current § 825.310(f) states that it is the employee's responsibility to provide the employer with a complete and sufficient certification and describes the consequences of failing to do so. The Department proposes to add text that clarifies this requirement, providing that “an employee may not be held liable for administrative delays in the issuance of military documents, despite the employee's diligent, good-faith efforts to obtain such documents.” While current § 825.305(b) already provides that employees who are unable to provide requested FMLA certification (including certification for military caregiver leave) within 15 days despite their diligent, good faith efforts must be provided with additional time, the Department believes that it is important to reiterate this principle in § 825.310(f). As discussed in the preamble to the 2008 final rule, the Department acknowledges concerns regarding timely receipt of military documentation and hopes to clarify that employees may not be held responsible for administrative delays in the issuance of military documents where a good faith attempt is made by the employee to obtain such documents. 73 FR 68011.
Current § 825.110 sets forth the eligibility standards an employee must meet in order to take FMLA leave. To be eligible, an employee must have been employed by the employer for at least 12 months, must have been employed for at least 1,250 hours of service in the 12-month period immediately preceding the commencement of the leave, and must be employed at a worksite where 50 or more employees are employed by the employer within 75 miles. Whether an employee has worked the required 1,250 hours of service is based on FLSA hours-worked principles contained in 29 CFR 785. The Department proposes revisions to § 825.110(a), (c), and (d) to reflect the AFCTCA's expanded definition of the “hours of service” requirement for airline flight crew employees. No changes are proposed to § 825.110(b) and (e).
Section 825.110(a) sets forth the general employee eligibility requirements. In § 825.110(a)(2) the Department proposes to add a reference to proposed paragraph § 825.110(c)(2), which sets forth the hours of service requirement for airline flight crew employees. No other changes are proposed in § 825.110(a).
Current § 825.110(b)(2)(i) concerns determining an employee's eligibility when there is a break in service occasioned by the fulfillment of the employee's National Guard or Reserve military service. The Department proposes to modify the language in the first sentence to reference the Uniformed Services Employment and Reemployment Rights Act (USERRA) and to clarify that the protections afforded by USERRA extend to all military members (active duty and reserve) returning from USERRA-qualifying military service. Current § 825.110(c)(2) provides rules pursuant to USERRA for crediting an employee returning from a National Guard or Reserve obligation with the hours of service that would have been performed but for the military service when evaluating whether the “hours of service” eligibility requirement has been met. The Department proposes to renumber current paragraph (c)(2) as paragraph (c)(3) and to spell out the title of USERRA, which is currently referred to in this section by the acronym only. In addition, the Department proposes to modify the language in the first sentence of this paragraph in recognition that USERRA rights may extend to certain employees returning to civilian employment from service in the Regular Armed Forces. The Department also proposes to modify this paragraph to refer more generally to the hours of service requirement.
The AFCTCA requires employers to calculate hours of service for eligibility in a different manner for airline flight crew employees. The Department proposes to separately define the hours of service eligibility requirement for these employees in proposed § 825.110(c)(2) and (c)(3). The Department notes that the hours of service requirement will continue to be determined based on “hours worked” as defined under the FLSA for all employees other than airline flight crew employees. Proposed paragraph § 825.110(c)(2) states the AFCTCA requirement that the hours of service criteria will be met if during the previous 12-month period the airline flight crew employee has worked or been paid for not less than 60 percent of the applicable monthly guarantee and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation leave or sick or medical leave).
Proposed paragraph § 825.110(c)(2)(i) states the statutory definition of applicable monthly guarantee for airline flight crew employees on reserve and non-reserve status. The Department proposes to refer to airline flight crew employees who are not on reserve status as “line holders”, which the Department understands to reflect industry terminology. The applicable monthly guarantee is determined by the employer's policies or collective bargaining agreement and differs depending on whether the airline flight crew employee is a line holder or on reserve status and on the employee's job classification (
In § 825.110(c)(2)(ii) the Department proposes to base the number of hours that an airline flight crew employee has worked on the employee's duty hours during the previous 12-month period. While duty hours may not always reflect all hours that would be considered
The Department proposes to renumber current paragraph § 825.110(c)(3), which explains an employer's burden when it does not maintain accurate records of hours worked for an employee, as new § 825.110(c)(4), and to add language clarifying the application of this rule to airline flight crew employees.
Finally, the Department proposes to replace the phrase “worked for the employer for at least 1,250 hours” in the first sentence of current § 825.110(d) with the more general “met the hours of service requirement”, to provide uniformity with the rest of the section in reflecting the AFCTCA requirements. The Department also proposes to replace the general reference to “eligibility requirements” in the second sentence of this paragraph with a specific reference to the “12-month eligibility requirement” to clarify the application of this principle.
The Department seeks comments on all aspects of the application of the AFCTCA eligibility provisions, particularly on the proposal to interpret the requirement of 504 hours worked to be 504 hours of duty time, as well as the Department's understanding that scheduled hours for line holders encompasses duty hours. The Department recognizes that the airline industry has unique timekeeping practices and it is the Department's intent to utilize existing industry records to make FMLA eligibility determinations.
Section 825.205 of the current regulations explains how to count increments of leave in cases of intermittent or reduced schedule leave. The Department proposes several changes to this section. The changes implement the AFCTCA provisions and address how FMLA leave usage is counted for all employees.
Current § 825.205(a) defines the minimum increment of FMLA leave to be used when taken intermittently or on a reduced schedule as an increment no greater than the shortest period of time that the employer uses to account for other forms of leave, provided that it is not greater than one hour. The Department proposes to add language to paragraph (a)(1) stating that an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave. This concept was included in § 825.203(d) of the 1995 final rule. The Department believes it is appropriate to reinsert it into the regulations to emphasize the statutory requirement that an employee's FMLA leave entitlement not be reduced beyond the amount of leave actually taken in accounting for leave taken on an intermittent or reduced schedule basis. 29 U.S.C. 2612(b)(1). The proposed regulatory text makes clear that this principle is subject to the increment of leave rule set forth in this paragraph as well as to the physical impossibility rule in paragraph (a)(2) and the special rules for intermittent leave for school employees in §§ 825.601 and 825.602. As explained in the 2008 final rule, the other situation in which an employee may use more FMLA leave than necessary to address the circumstances requiring leave is when the employee elects to substitute paid leave and must use a larger amount of leave in order to satisfy the employer's paid leave policy. In such instances, the entire period of leave taken is FMLA-protected and counts against the FMLA entitlement. 73 FR 67981. While an employer can require an employee to utilize a larger amount of FMLA leave than necessitated by the FMLA condition if the employee wishes to substitute paid leave, the employee always has the option to take unpaid FMLA leave in the smallest increment of leave used by the employer.
The Department also proposes to add to paragraph (a)(1) language from the preamble to the 2008 final rule that further clarifies two important aspects of the calculation of FMLA leave. First, the Department proposes to add an example to illustrate the principal that where an employer uses different increments to account for different types of leave (
Current § 825.205(a)(1) also permits employers to utilize different increments of FMLA leave at different times of the day or shift under certain circumstances. Under this provision, for example, if an employer utilizes a larger increment of leave at the beginning or the end of a shift an employee needing FMLA leave during those periods may be required to take the leave in the size of the smallest increment of leave permitted at that particular time. The Department's enforcement experience indicates some confusion regarding this provision including some employers who have interpreted this language to permit the use of a larger increment of FMLA leave at certain points in a shift than the increment used for other forms of leave in the same time period. Consequently, the Department proposes to remove the language allowing for varying increments at different times of the day or shift in favor of the more general principle of using the employer's shortest increment of any type of leave at any time. The Department requests comment on the proposal to remove this language from the regulations.
Current § 825.205(a)(2) sets forth the physical impossibility provision which provides that where it is physically impossible for an employee to commence or end work mid-way through a shift, the entire period that the employee is forced to be absent is counted against the employee's FMLA leave entitlement. The Department has reviewed this position in connection with the AFCTCA because of the impact of the physical impossibility provision on the airline industry. As discussed in the preamble to the 2008 final rule, the physical impossibility provision is intended to apply only in very narrow circumstances. 73 FR 67977. The Department is concerned, however, that the provision may be being applied more broadly than intended. Accordingly, the Department proposes adding language at paragraph (a)(2) emphasizing that it is an employer's responsibility to restore an employee to his or her same or equivalent position at the end of any FMLA leave as soon as possible. The proposed language further emphasizes the Department's intent that the physical impossibility provision be applied in only the most limited circumstances and only where it is, in fact, physically impossible to allow the employee to leave his or her shift early or to restore the employee to his or her same position or to an equivalent position at the time the employee no longer needs FMLA leave. Thus, for example, if after three hours of FMLA leave use it was physically possible to restore a flight crew employee to another flight, the employer would be required to do so. If, however, no other flight is available to which the employee could be assigned, or no other equivalent work is available, restoration could be delayed and the employee's FMLA entitlement reduced for the entire period the employee is forced to be absent. The Department reiterates that employers have an obligation not to discriminate between employees taking FMLA leave and employees taking other forms of leave in restoring employees or offering alternative work. 73 FR 679678. Alternatively, the Department is considering deleting the physical impossibility provision in its entirety. The 2008 final rule explained that the Department intended the provision to protect employees from discipline when a short FMLA-protected absence resulted in a much longer absence because of the unique nature of the worksite. 73 FR 67977. However, the Department is concerned that this exception may be misused, delaying restoration in instances where restoration to an equivalent position is possible or where restoration to the same position may be possible but inconvenient to the employer. The Department seeks comments on whether the physical impossibility provision has indeed protected employees from inappropriate discipline, or if it has been misused to unduly extend employees' FMLA leave and diminish their FMLA entitlement, and whether it should be retained in the regulations.
Current § 825.205(b) addresses the rules concerning the calculation of leave usage when leave is taken on an intermittent or reduced leave schedule (calculation of leave for airline flight crew employees is separately addressed in § 825.205(d)). The Department proposes only clarifying changes to this paragraph. The Department proposes to include in the regulatory text language from the 2008 final rule preamble to reinforce the requirement that the employee's total available entitlement is 12 workweeks (or 26 workweeks in the case of military caregiver leave), that FMLA leave does not accrue at any particular hourly rate, and that the specific number of hours contained in the workweek is dependent upon the hours the employee would have worked but for the taking of the FMLA leave. 73 FR 67978. The Department also proposes minor edits making uniform the references to fractions contained in this paragraph.
Current § 825.205(c) addresses when overtime hours that are not worked may be counted as FMLA leave. The Department proposes to change the term “serious health condition” in the last sentence in paragraph (c) to “FMLA qualifying reason.” This editorial change is consistent with the language used in the first sentence of the paragraph and more accurately reflects that overtime hours missed by an employee may be due to any FMLA-qualifying reason and are not limited to a serious health condition.
Proposed § 825.205 (d)(1) provides the method for calculating leave usage for airline flight crew employees who are line holders and is based on principles established for the calculation of leave for all employees found in paragraph (b)(1) of this section. For line holders, the number of duty hours scheduled will be used in determining the employee's workweek for purposes of calculating FMLA leave usage. Duty hours scheduled means the hours that the individual employee is scheduled to work in the workweek in which FMLA leave is needed. It is the Department's understanding that the line or block awarded to the employee would readily yield the duty hours scheduled for any given week. Further, it is the Department's understanding that duty hours include the flight or block hours as determined by the FAA, as well as the additional time before and after the flight encompassing pre- and post-flight duties, as determined by employer policy or applicable collective bargaining agreement. The Department believes the employee's duty time best represents the time spent on the job and provides an accurate characterization of the time needing job protection in the event FMLA leave is needed by the employee.
Proposed paragraph (d)(2) of this section provides the method for calculating leave usage for airline flight crew employees on reserve status. The Department proposes to base the leave entitlement and calculation of the employee's workweek on an average of the greater of the applicable monthly guarantee or actual duty hours worked over the prior 12 months. Under this proposal, the employee's average workweek would be calculated by adding the greater of the applicable monthly guarantee (the number of hours for which an employer has agreed to pay the employee for any given month) or actual duty hours worked in each of the previous 12 months and dividing by 52 weeks per year. This average workweek would be the basis for FMLA leave usage for the 12-month FMLA leave year. For example, if a reserve flight attendant has worked or been paid an average of 20 hours per week over the prior 12 months, the employee would be entitled to 12 workweeks of 20-hours for FMLA leave (or 26 workweeks in the case of leave to care for a covered servicemember). If the flight attendant needs four hours of FMLA leave in one workweek, the employee would use one-fifth (
In developing a proposed method to calculate FMLA-leave usage for airline flight crew employees on reserve status, the Department considered a methodology based on FLSA principles of “hours worked,” as is used for
Rather, the Department believes the method of averaging in proposed paragraph (d)(2) is better suited to the variable scheduling of reserve airline flight crew members. Additionally, the method proposed is consistent with current § 825.205(b)(3), which provides that, where an employee's schedule varies from week to week to such an extent the employer is unable to determine the hours the employee would have worked but for the taking of FMLA leave, the employer has the option to establish a leave entitlement by using the weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period. The Department believes proposed paragraph (d)(2) is consistent with current FMLA calculation methods, best reflects Congressional intent, and will provide access to FMLA leave for the largest number of flight crew employees without requiring dramatic changes to existing industry systems.
The Department also understands that some line holders may also request additional work in reserve status. Where an employee is both a line holder and on reserve status, the Department proposes that the leave calculation should be made using the method set forth for reserve airline flight crew employees, as this method is flexible enough to encompass both the applicable monthly guarantee and duty hours. The Department requests comment on industry practice in this area and application of the FMLA regulations to such a scenario. The Department also seeks comment on the proposed calculation of leave methods for both line holders and airline flight crew employees on reserve status and welcomes suggestions for alternative methods that equitably reflect the employee's total normally scheduled hours and actual FMLA leave taken.
Current § 825.500 details the recordkeeping requirements under the FMLA. The Department proposes to add a new sentence at the end of paragraph (g) setting forth the employer's obligation to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA). To the extent that records and documents created for FMLA purposes contain “family medical history” or “genetic information” as defined in the GINA, employers must maintain such records in accordance with the confidentiality requirements of Title II of GINA. GINA permits genetic information, including family medical history, obtained by the employer in FMLA records and documents to be disclosed consistent with the requirements of the FMLA.
The Department proposes to define in a new paragraph (h) the statutory requirement that employers of airline flight crew employees maintain on file with the Secretary certain records. Consistent with other recordkeeping requirements, proposed paragraph (h) makes clear that records are to be maintained by the employer by making, keeping, and preserving records in accordance with the requirements already delineated in § 825.500, with no actual submission to the Secretary unless requested.
Additionally, proposed paragraph (h)(1) outlines additional records that are required to be kept specific to employers of airline flight crew employees. These additional records include any records or documents that specify the applicable monthly guarantee for each type of employee to whom the guarantee applies, including any relevant collective bargaining agreements or employer policy documents that establish the applicable monthly guarantee; as well as records of hours scheduled, in order to be able to apply the leave calculation principles contained in proposed § 825.205(d).
As previously discussed, the Department is proposing to delete the Appendices to part 825 and to provide copies of the optional use forms and the poster through local Wage and Hour Offices and the Wage and Hour Web site. References to the Appendices have been deleted from the following sections: § 825.300 (Employer notice requirements), § 825.306 (Content of medical certification for leave taken because of an employee's own serious health condition or the serious health condition of a family member), § 825.309 (Certification for leave taken because of a qualifying exigency), § 825.310 (Certification for leave taken to care for a covered servicemember (military caregiver leave)), and § 825.800 (Definitions). The Department also proposes minor edits to § 825.300 to reflect provisions of the FY 2010 NDAA and AFCTCA.
The current § 825.800 contains the definitions of significant terms, phrases, and acronyms used in the regulations. The Department proposes to move this section of the regulations to § 825.102. This reorganization is intended to enhance the utility of the regulations by defining terms before they are used and in advance of the substantive provisions. Moving the definitions section to the beginning of the regulations is consistent with other regulations implementing statutes administered by the WHD.
The Department proposes to make changes to definitions and regulatory references in this section to maintain consistency with the Department's proposed changes to the regulatory text. Specifically, the terms modified are
The Department also proposes to add terms previously not listed in this section but used in the current regulations and unchanged by this NPRM as an aid and service to the reader. These terms are
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its attendant regulations, 5 CFR part 1320, the Department seeks to minimize the paperwork burden for individuals, small businesses, educational and non-profit institutions, Federal contractors, State, local, and tribal governments, and other persons resulting from the collection of information by or for the agency. The PRA typically requires an agency to provide notice and seek public comments on any proposed collection of information contained in a proposed rule.
This paperwork burden analysis estimates the burdens for the proposed regulations as drafted. The proposed regulations, as they relate to the PRA, implement amendments to the military leave provisions made by the FY 2010 NDAA, which extends the availability of FMLA leave for qualifying exigencies to employee-family members of members of the Regular Armed Forces and defines the deployments covered by such leave, and extends FMLA military caregiver leave to employee-family members of certain veterans with a serious injury or illness and expands the provision of such leave to cover serious injuries or illnesses that existed prior to a covered servicemember's active duty and were aggravated in the line of duty while on active duty. The proposed regulations also implement the AFCTCA, which establishes new eligibility requirements for airline flight crew members and flight attendants.
As will be more fully explained later, many of the estimates in the analysis of the paperwork requirements derive from data developed for the Preliminary Regulatory Impact Analysis (PRIA) under Executive Orders 13563 and 12866. However, the specific needs that the PRA analysis and PRIA are intended to meet often require that the data undergo a different analysis to estimate burdens imposed by the paperwork requirements from the analysis used in estimating the effect the regulations will have on the economy. In addition for certain sections, a range of values is provided in the PRIA; the PRA uses the midpoint of those ranges. Consequently, the differing treatment that must be undertaken in the PRA analysis and the PRIA of the proposed regulatory changes may result in different results. For example, the PRA analysis measures the additional burden of the information collection on those who are providing information due to the proposed regulatory changes; however, the PRIA measures the incremental changes expected to result in the broader economy due to the proposed regulatory changes. Thus, this PRA analysis will calculate the additional paperwork burden in relation to the existing FMLA information collection burden arising from this rule. Conversely, the regulatory definition for collection of information for PRA purposes specifically excludes the public disclosure of information originally supplied by the Federal government to the recipient for the purpose of disclosure to the public. 5 CFR 1320.3(c)(2). The PRIA, however, may need to consider the impact of any regulatory changes in such notifications provided by the government. Finally, the PRA definition of “burden” can exclude the time, effort, and financial resources necessary to comply with a collection of information that would be incurred by persons in the normal course of their activities (
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H.
As soon as an employer makes a good faith determination—based on the facts available—that substantial and grievous economic injury to its operations will result if a key employee who has given notice of the need for FMLA leave or is
An employee may still request reinstatement at the end of the leave period, even if the employee did not return to work in response to the employer's notice. The employer must then determine whether there will be substantial and grievous economic injury from reinstatement, based on the facts at the time. If the employer determines that substantial and grievous economic injury will result from reinstating the employee, the employer must notify the employee in writing (in person or by certified mail) of the denial of restoration.
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L.
Current section 825.500(c) requires employers to maintain basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid; dates FMLA leave is taken by FMLA eligible employees (available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave; leave so designated may not include leave required under State law or an employer plan which is not also covered by FMLA; if FMLA leave is taken by eligible employees in increments or less than one full day, the hours of leave; copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all written notices given to employees as required under FMLA and these regulations; any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leave; premium payments of employee benefits; records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement. Under the AFCTCA amendment, employers in the airline industry must also maintain records that specify the applicable monthly guarantee for each type of employee to whom the guarantee applies and must make these records available to the Secretary of Labor upon request.
Current section 825.500(d) requires covered employers with no eligible employees to maintain certain basic payroll and identifying employee data. Current section 825.500(e) requires covered employers that jointly employ workers with other employers to keep all the records required by the regulations with respect to any primary employees, and to keep certain basic payroll and identifying employee data with respect to any secondary employees.
Current section 825.500(f) provides that if FMLA-eligible employees are not subject to FLSA recordkeeping regulations for purposes of minimum wage or overtime compliance (
Current section 825.500(g) requires employers to maintain records and documents relating to any medical certification, recertification, or medical history of an employee or employee's family member, created for FMLA purposes as confidential medical records in separate files/records from the usual personnel files. Employers must also maintain such records in conformance with any applicable Americans with Disability Act (ADA) confidentiality requirements; except that: Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations; first aid and safety personnel may be informed, when appropriate, if the employee's physical or medical condition might require emergency treatment; and government officials investigating compliance with the FMLA, or other pertinent law, shall be provided relevant information upon request. To the extent that records and documents created for FMLA purposes contain “family medical history” or “genetic information” as defined in the Genetic Information Nondiscrimination Act of 2008 (GINA), employers must maintain such records in accordance with the confidentiality requirements of Title II of GINA. GINA permits genetic information, including family medical history, obtained by the employer in FMLA records and documents to be disclosed consistent with the requirements of the FMLA.
The FLSA record keeping requirements, contained in 29 CFR part 516, are currently approved under Office of Management and Budget (OMB) control number 1235–0018; consequently this information does not duplicate their burden, despite the fact that for the administrative ease of the regulated community this information collection restates them.
While use of the Department's forms is optional, the regulations require employers and employees to make the third-party disclosures that the forms cover. The FMLA third-party disclosures ensure that both employers and employees are aware of and can exercise their respective rights and meet their respective obligations under the FMLA. The recordkeeping requirements are necessary in order for the Department to carry out its statutory obligation under FMLA § 106, 29 U.S.C. 2616, to investigate and ensure employer compliance. The WHD uses these records to determine employer compliance.
Aside from the basic requirement that third-party notifications be in writing, with the possible exception for the employee's FMLA request (which depends on the requirements of the employer's leave policies), there are no restrictions on the method of transmission. Employers and employees may meet many of their notification obligations by using DOL-prepared forms and publications available on the WHD Web site,
An agency may not conduct an information collection unless it has a currently valid OMB approval, and the Department has submitted the identified information collection contained in the proposed rule to OMB for review under the PRA under Control Number 1235–0003.
In addition to having an opportunity to file comments with the Department, comments about the FMLA information collection requirements may be addressed to the OMB. OMB encourages commenters to submit comments by emailing them to
A.
The Department estimates that there are 193,000 employees who are newly eligible to take leave for a qualifying exigency under the FY 2010 NDAA. Based on leave usage patterns, 30,900 of these employees will take leave for a qualifying exigency (16 percent of 193,000 employees). Based on the leave patterns estimated by the Department discussed in the PRIA, the Department estimates that there will be 679,800 employee requests for qualifying exigency leave.
The Department also estimates that there are 59,700 employees who are newly eligible to take leave to care for a covered veteran under the FY 2010 NDAA. Based on leave usage patterns, 15,500 of these employees will take leave to care for a covered veteran (26 percent of 117,790 employees). Based on the leave patterns estimated by the Department in the PRIA analysis, the Department estimates that there will be 790,500 employee requests for leave to care for a covered veteran.
The Department also estimates that there are 129,760 flight crew members eligible to take FMLA leave. However, some of these employees may already be entitled to leave similar to FMLA leave under collective bargaining agreements. Consequently, the Department anticipates that there are 90,560 airline flight crew employees who may be newly entitled to FMLA leave pursuant to AFCTCA. The Department estimates that 5,951 of these employees will take FMLA leave (5 percent of eligible pilots and 7.9 percent of eligible flight attendants). The PRIA analysis provides an explanation for how these numbers were determined. The Department also anticipates that each of these employees will provide his or her employer with 1.5 notices of need for FMLA leave, totaling 8,930 employee requests for FMLA leave.
Existing employee notification requirements unaffected by this NPRM already impose an estimated burden of 13,419,050 responses and 447,302 hours.
Total burden for this requirement is estimated to be 14,898,280 responses and 496,610 hours.
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However, for the eligible employees who are airline flight crew members, the Department is assuming that each of the employees' 1.5 employer notices of the need for leave are for different FMLA-qualifying reasons, and therefore employers will need to provide a notice of eligibility and a notice of rights and responsibilities for each request for leave. 5,951 leave takers will issue 8,930 employer notices for leave (5,951 × 1.5 leaves = 8,930 notices). Employers will issue 8,930 notices of eligibility and notices or rights and responsibilities.
Existing employee eligibility and rights and responses notification requirements unaffected by this NPRM already impose an estimated burden of 21,764,900 responses and 9,491,476 hours.
Total burden for this requirement is estimated to be 21,820,230 responses and 9,500,698 hours.
5,951 airline flight crew employees taking leave × 90% rate for a serious health condition × 90% of employees asked to provide initial medical documentation = 4,820 employees providing initial medical certification.
5,543 × 20 minutes/60 minutes per hour = 1,848 hours.
The Department does not associate a paperwork burden with the portion of this information collection that employers complete since—even absent the FMLA—similar information would customarily appear in their internal instructions requesting a medical certification or recertification. The Department accounts for health care provider burdens to complete these certifications as a “maintenance and operation” cost burden, which is discussed later.
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All new certification and recertification requirements as a result of this NPRM impose a burden of 77,078 responses and 24,087 hours.
All existing certification and recertification requirements unaffected by this NPRM already impose an estimated burden of 12,080,153 responses and 4,009,851 hours.
Total burden for this requirement is estimated to be 12,157,231 responses and 4,033,938 hours.
D.
Existing designation notification requirements unaffected by this NPRM already impose an estimated burden of 17,383,325 responses and 4,693,574 hours.
Total burden for this requirement is estimated to be 147,438,655 responses and 4,702,796 hours.
E.
90,560 newly added employees in the airline industry × 10% for employers who change the period = 9,056 responses.
9,056 responses × 1.79336117 = 5 hours.
Existing similar notification requirements unaffected by this NPRM already impose a burden of 9,580,000 responses and 4,772 hours.
Total burden for this requirement is estimated to be 9,589,056 responses and 4,777 hours.
F.
Existing notification requirements unaffected by this NPRM already impose a burden of 42,787 responses and 3,566 hours.
Total burden for this requirement is estimated to be 42,787 responses and 3,566 hours.
G.
1,309 employee responses × 2 responses = 2,618 total responses.
2,618 responses × 2 minutes/60 minutes = 87 hours.
Existing status report notification requirements unaffected by this NPRM already impose an estimated burden of 369,704 responses and 12,323 hours.
Total burden for this requirement is estimated to be 372,322 responses and 12,410 hours.
H.
As it did in the 2008 analysis, the Department estimates that employers may require additional documentation to support a family relationship in five percent of these cases, and the additional documentation will require 5 minutes.
2,469 employees × 5 minutes/60 minutes per hour = 206 hours.
Existing family documentation requirements unaffected by this NPRM already impose an estimated burden of 183,987 responses and 15,332 hours.
Total burden for this requirement is estimated to be 186,456 responses and 15,538 hours.
M.
Existing notification requirements unaffected by this NPRM already impose a burden of 142,619 responses and 11,885 hours.
N.
The existing estimated burden for these elements is 13,419,050 responses and 279,564 hours.
Total burden for this requirement is estimated to be 13,419,050 responses and 279,564 hours.
The Department estimates that it will take approximately 20 minutes to complete a certification for a serious health condition, and 10 minutes to complete a fitness for duty certification. The time would equal the employee's time in obtaining the certification. The Department used the median hourly wage for a physician's assistant of $41.54 plus 40 percent in fringe benefits to compute cost of $19.39 for the certification of a serious health condition ($58.17 × 20 minutes/60 minutes per hour), and $9.69 for the fitness-for-duty certification.
The Department estimates that it will take approximately 20 minutes to complete the certification for a covered veteran. Thus, the time would equal the employee's time in obtaining the certification. The Department used the median hourly wage for a physician's assistant of $41.54 plus 40 percent in fringe benefits to compute cost of $19.39 for the certification to care for covered veteran ($58.17 × 20 minutes/60 minutes per hour).
The maintenance and operations cost estimate for the existing FMLA information collections is $162,821,810.
Grand total of maintenance and operations cost burden for respondents = $163,122,355.
The burden imposed by this information collection, as proposed to be revised, is summarized as follows:
Executive Orders 12866 and 13563 direct 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. However, in keeping with the spirit of Executive Order 12866, the Department had the rule reviewed by OMB. The Family and Medical Leave Act (FMLA or Act) is administered by the U.S. Department of Labor, Wage and Hour Division (WHD). The FMLA provides a means for employees to balance their work and family responsibilities by taking unpaid leave for certain reasons. The Act is intended to promote the stability and economic security of families as well as the nation's interest in preserving the integrity of families.
The FMLA applies to any employer in the private sector engaged in commerce or in an industry or activity affecting commerce who employed 50 or more employees each working day during at least 20 weeks in the current or preceding calendar year; all public agencies and local education agencies; and most Federal employees.
To be eligible for leave, an individual must:
Be employed by a covered employer at a worksite that employs at least 50 employees within 75 miles;
Have worked at least 12 months for the employer (not necessarily consecutively); and
Have at least 1,250 hours of service during 12 months preceding the beginning of the FMLA leave (as discussed herein, special hours of service rules apply to airline flight crew employees).
The FMLA provides for job-protected, unpaid leave, which may be continuous or intermittent, and allows for the substitution of paid leave. Employees are entitled to:
Employees are also entitled to 26 workweeks of leave in a single 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember.
The proposed changes to the FMLA regulations are primarily to implement statutory amendments to the FMLA's military family leave provisions and separate statutory changes affecting the eligibility requirements for airline flight crewmembers and flight attendants (collectively referred to as airline flight crew employees). Additionally, the military statutory amendments are designed to make it easier for workers with family in military service to balance their work and family lives during particularly demanding times without the fear of losing their jobs. 73 FR 68070. The amendments relating to the airline flight crew employees established a special hours of service eligibility requirement in order to address this industry's unique scheduling practices and expand access to FMLA-protected leave for flight crew employees.
On October 28, 2009, the President signed into law the 2010 National Defense Authorization Act (FY 2010 NDAA), Public Law 111–84. Section 565(a) of the FY 2010 NDAA amends the FMLA. These amendments expand the military family leave provisions added to the FMLA in 2008, which provide qualifying exigency and military caregiver leave for employees with family members who are covered military members.
The FY 2010 NDAA amendments to the FMLA provide that an eligible employee may take FMLA leave for any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is on (or has been notified of an impending call to) “covered active duty” in the Armed Forces. “Covered Active Duty” for members of a regular component of the Armed Forces means duty during deployment of the member with the Armed Forces to a foreign country. For members of the U.S. National Guard and Reserves it means duty during deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in a contingency operation as defined in section 101(a)(13)(B) of title 10, United States Code. Prior to the FY 2010 NDAA amendments, (1) qualifying exigency leave did not apply to employees with family members serving in a regular component of the Armed Forces and (2) qualifying exigency leave for family members of members of the National Guard and Reserves was not limited to deployment to a foreign country in support a contingency operation.
The FY 2010 NDAA also expands the military caregiver leave provisions of the FMLA. Military caregiver leave entitles an eligible employee who is the spouse, son, daughter, parent, or next of kin of a “covered servicemember” to take up to 26 workweeks of FMLA leave in a “single 12- month period” to care
In addition, the FY 2010 NDAA amends the FMLA's definition of a “serious injury or illness” for a current member of the U.S. Armed Forces, including National Guard or Reserves, to include not only a serious injury or illness that was incurred by the member in the line of duty on active duty but also one that “existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces” that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating. For covered veterans, the term is defined as “a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.”
On December 21, 2009, the President signed into law the Airline Flight Crew Technical Corrections Act, Public Law 111–119. This amendment to the FMLA establishes a special hours of service eligibility requirement for airline flight crew employees. This amendment also permits the Secretary of Labor to provide by regulation a method of calculating FMLA leave for airline flight crew employees. Airline flight crew employees continue to be subject to the FMLA's other eligibility requirements.
The amendment provides that an airline flight attendant or flight crew member meets the hours of service requirement if, during the previous 12-month period, he or she has worked or been paid for:
▪ Not less than 60 percent of the applicable total monthly guarantee (or its equivalent), and
▪ Not less than 504 hours, not including personal commute time, or time spent on vacation, medical, or sick leave.
The Department projects that the average annualized cost of the rule will be somewhat more than $61 million per year over 10 years. The rule is expected to cost $72.3 million in the first year, and $59.8 million per year in subsequent years. The amendment to extend FMLA provisions to flight crew employees accounts for 0.5 percent of first year costs and 0.7 percent in subsequent years, while military exigency and caregiver leave account for 81.4 percent of first year costs and 99.4 percent of costs in subsequent years. Regulatory familiarization costs account for 17.4 percent of first year costs. By provision, the costs related to the provision of health benefits account for the largest share of costs, about 44.5 percent of costs in the first year of the rule, and 53.9 percent of costs each in each of the following years.
The first step in the analysis is to estimate the number of firms, establishments and employees in the public and private sectors that will be impacted by the proposed changes. The Department estimates that there are a total of 7.9 million firms and government agencies with 10.6 million establishments in the U.S.
After identifying and excluding from the analysis those businesses that are not covered by the FMLA, the Department estimates that there are 381,000 covered firms and government agencies with 1.2 million establishments. These firms employ 91.1 million workers that will potentially be impacted by the proposed rule changes. These employers have an annual payroll of $5.0 trillion, estimated annual revenues of $23.7 trillion, and estimated net income of $1.03 trillion.
Table 2–1 presents the estimated number of establishments, firms, employment, annual wages, revenue, and net income for all employers. The following subsection describes in detail the methods and data sources used to develop the industry profile.
In order to determine the impact of this proposed rule, it is important to understand the analysis underlying the 2008 final rule. Therefore, this section describes the data sources and methods used to calculate the 2008 industry profile and identify employers that will be impacted by the proposed rule. The foundation for the profile is a special tabulation of data produced by the Bureau of Labor Statistics (BLS) Quarterly Census of Employment and Wages (QCEW) Program. The tabulation describes the distribution of establishments and employment by major industry division (2-digit NAICS level) across nine employment size categories. As explained more fully below, the analysis is based on establishment-level data because employer coverage and employee eligibility for the proposed rule is determined, in part, by establishment size.
The number of establishments and employment for each 2-digit industry, as defined by the North American Industry Classification System (NAICS), by employment size class, were obtained directly from BLS Quarterly Census of Employment and Wages Business Employment Dynamics (QCEW).
The number of firms was determined by distributing the BLS QCEW total number of firms at the 2-digit industry level to each size class using the proportion of firms in each size class calculated from the Statistics of U.S. Businesses 2006. The Department used a similar approach to determine the annual payroll within each industry. The total annual payroll at the 2-digit industry level was distributed to each of the employment size classes using the proportion of payroll in each size class calculated from the Statistics of U.S. Businesses 2006.
In order to determine estimated 2008 revenues for each industry and employment size class, the Department calculated the receipts per employee in each size class from the 2007 Statistics of U.S. Business by aggregating the 2007 size classes to match BLS size classes, then dividing total receipts by the number of employees in each size class. Then, the Department estimated the BLS worker output index and producer price index for each two-digit sector as a weighted average of industries composing that sector. For sectors where no indices were available, the Department used the median value from those sectors with indices. Finally, to obtain an estimate of 2008 revenues, the Department multiplied receipts per employee in each size class by the 2008 number of employees in each size class, the worker output index and the producer price index. Government revenues were directly obtained from the 2007 Census of Government Finance.
To determine estimated 2008 net income for each industry and employment class size, the Department calculated the average revenues per firm in each size class and calculated the ratio of net income to total receipts using the 2007 IRS Statistics of Income.
The FMLA applies to any employer in the private sector engaged in commerce or in an industry affecting commerce who employed 50 or more employees each working day during at least 20 weeks in the current or preceding calendar year; all public agencies and local education agencies; and most Federal employees.
First, the Department dropped from the profile all establishments in employment size classes of less than 50 employees (
Additionally, the Department used Statistics of U.S. Business, 2006 at the 6-digit NAICS level to identify the proportion of employers in NAICS 61 “Education Services” who are
Next, the Department calculated an appropriate adjustment factor to account for establishments with fewer than 50 employees at a worksite owned by a firm with more than 50 employees within 75 miles. It is necessary to add an estimated number of these employees back in to the industry profile to avoid underestimating the number of covered employers and eligible employees affected by the proposed rule.
The Department calculated this adjustment following the approach described in the 2007 “Preliminary Analysis of the Impacts of Prospective Revision to the Regulation Implementing the FMLA of 1993 at 29 CFR 825” (hereafter, “the 2007 PRIA”).
The lower bound is estimated at the 2-digit industry level as the employment in establishments with more than 50 employees according to the U.S. County Business Patterns of 2007.
This section describes how, in light of the recent amendments, the Department estimated the number of covered, eligible workers who may be in a position to take qualifying exigency or military caregiver leave and the number of leaves they may take, and the number of covered eligible flight crew members and flight attendants who may take FMLA leave and the number of leaves they may take.
The proposed changes to the military family leave provisions of FMLA impact a variety of employees and employers across the economy. While these proposed changes do not alter the conditions for employer coverage or employee eligibility under the FMLA, they do change the circumstances under which eligible employees who are family members of covered servicemembers qualify for FMLA leave and, as a result, will affect the number and frequency of FMLA leaves taken for those reasons.
In order to estimate the number of individuals who may take leave under the qualifying exigency or military caregiver provisions as a result of the proposed changes, the Department estimated the number of servicemembers or veterans covered by the amendments, completed an age profile of those individuals and estimated the number of eligible family members or potential caregivers likely to be associated with each age range. This method is described in full detail in Appendix A.
The FY 2010 NDAA amendments to the FMLA provide that an eligible employee may take FMLA leave for any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is on (or has been notified of an impending call to) covered active duty in the Armed Forces. For members of a regular component of the Armed Forces, this means duty during deployment to a foreign country. For members of the U.S. National Guard and Reserves, it means duty during deployment to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
To determine the number of eligible employees who may take FMLA leave as a result of this amendment, the Department first estimated the number of servicemembers on covered active duty and the number of family members who may be eligible and employed at a covered employer and then subtracted those servicemembers and family members already entitled to take qualifying exigency leave prior to the FY 2010 NDAA amendments. Clear, consistent data on the number of military personnel deployed in any given year are difficult to find; many sources, for example, do not adequately distinguish military personnel deployed overseas from those stationed overseas. In addition, estimates might vary significantly depending on sources utilized.
Table 3–1 provides a summary of deployments of the U.S. Armed Forces from 1960 through 2007. Although composed of the best data found to date, some estimates of personnel deployed appear to use more restrictive definitions than would be covered by the Department's definition of covered active duty. For example, the table shows deployment of 1,200 personnel for operations in Lebanon from 1982 through 1984. However, this appears to include only those Marine Corps troops that were on the ground in Lebanon, but excludes sailors on the Navy support ships that were also deployed in this operation.
Supplementing the deployment data with annual active military personnel counts, the Department estimated the annual number and percent of military personnel deployed on average over the 1960 to 2007 period. Over the entire 48-year period, each year the U.S. deployed on average about 99,200 of its 2.1 million personnel active military force
▪ 16 years, essentially no personnel were deployed (with the exception of 50 servicemembers in Vietnam in 1973);
▪ 18 years, 900 to 37,100 personnel were deployed, an average of 15,400 per year (0.8 percent of active servicemembers);
▪ 14 years (Vietnam and the two Iraq conflicts), deployments ranged from 83,400 to 560,000 personnel, an average of 320,400 per year (13.9 percent of active servicemembers).
Based on the information provided in Table 3–1, and acknowledging the limitations of those data, the Department judged that the simple average of 99,200 deployed personnel does not adequately represent the typical number of service personnel on covered active duty in any given year for projecting the costs associated with this rule. The Department also calculated that, on average, 144,000 personnel per year were deployed in the 33 years in which a deployment occurred. Using this figure instead to represent average annual deployments on covered active duty provides a 45 percent cushion to account for data inconsistencies and omissions. Therefore, for the purposes of this PRIA, we assume an average of 144,000 military personnel are deployed per year on covered active duty.
Two additional adjustments to this estimate must be made:
▪ Qualifying exigency leave for eligible family members of National Guard and Reserve personnel was promulgated in 2008.
▪ Military personnel may deploy more than once in any given year; if their eligible family members use less than the entire allotment of leave on the first deployment (12 weeks), they may use some or all of the remaining leave on subsequent deployments that year.
“Contingency Tracking System deployment file for Operation Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.” Accessed at:
The Department used a Department of Defense news release on typical deployment lengths in the Iraq conflict by service (Army, 1 year; Navy and Marines, six months; Air Force, 3 months)
In the 2008 final rule, the Department estimated the joint probability that a servicemember will have one or more family members (parent, spouse, or adult child), that those family members will be employed at an FMLA-covered establishment, and that they would be eligible to take FMLA leave under the qualifying exigency provision (see 2007 PRIA and Appendix A). Applying these joint probabilities to the 197,000 annual deployments, the Department estimates approximately 193,000 family members will be eligible to take FMLA leave to address qualifying exigencies. Military deployments represent a nonroutine departure from normal family life to potentially long-term exposure to a high stress, high risk environment, often at relatively short notice. Therefore, the Department assumes the rate at which eligible employees take FMLA leave for this purpose will be twice the rate (about 16 percent) of those taking regular FMLA leave (7.9 percent). The Department does not assert that only 16 percent of family members will take leave for reasons related to the servicemember's deployment, but that 16 percent will use leave designated as FMLA leave for qualifying exigencies. Based on these assumptions, the Department estimates 30,900 family members will take FMLA leave annually to address qualifying exigencies.
In the 2008 final rule, the Department developed a profile of the “typical” usage of qualifying exigency leave over the course of a 12-month period for an eligible employee. Under this leave profile, the typical employee will take a one week block of leave upon notification of the deployment of the servicemember, ten days of unforeseeable leave during deployment, one week of foreseeable leave to join the servicemember while on Rest and Recuperation, and one week of foreseeable leave post deployment to address qualifying exigencies. 73 FR 68051. The proposed revisions to the rule increase foreseeable leave to join a servicemember while the servicemember is on Rest and Recuperation leave. Table 3–2 summarizes the revised leave pattern.
For the purpose of this analysis, the Department is assuming that the average employee will take 10 days of leave to be with their servicemember during rest and recuperation leave. While the Department proposes increasing the number of days of qualifying exigency leave an employee may take for the servicemember's Rest and Recuperation leave to coincide with the number of days provided the servicemember, up to 15 days, the Department does not have a basis at this time to estimate the percentage of servicemembers who would be granted 15 days of Rest and Recuperation or the probability that their family member(s) would join them for Rest and Recuperation leave. Therefore, the Department assumes for the purpose of this analysis that a covered and eligible employee will take 10 days of qualifying exigency leave for the servicemember's Rest and Recuperation leave. The Department invites comment on the amount of Rest and Recuperation leave provided to service personnel and the extent to which employees would take an equal number of days of FMLA-qualifying exigency leave to be with their servicemember-family member.
Based on this profile, the Department estimates that 30,900 eligible employees will take 927,000 days (7.4 million hours) of FMLA leave annually to address qualifying exigencies under the FY 2010 NDAA amendments. These estimates may vary from 772,000 days (6.2 million hours) if eligible employees average five days of leave to 1.1 million days (8.7 million hours) if they average 15 days of leave when a servicemember is on Rest and Recuperation leave.
The Department acknowledges that estimated qualifying exigency leave also represents an average of periods with high levels of deployment and active conflict and periods with low or minimal deployments. Therefore, the Department supplements its analysis by considering a “heavy conflict” scenario and a “low conflict” scenario to capture the range of leave usage that may be expected in any given year in the future.
Drawing on the data in Table 3–1, for the purposes of these cost estimates, the Department defines the low conflict scenario as a year containing no deployment exceeding 40,000 servicemembers, while the heavy conflict scenario is one in which deployments exceed 40,000 servicemembers. Applying this standard to the data in Table 3–1, the average size of a deployment during the low conflict scenario is 15,400 troops, compared to 320,400 during a period of heavy conflict.
The Department applied the same probabilities of having eligible family members and patterns of leave usage as were used for the average analysis. Using this method, the Department estimates that 2,400 employees will take 72,060 days (576,500 hours) of leave for qualifying exigencies under the low conflict scenario, while 50,244 employees will take 1.5 million days (12 million hours) of leave during periods of heavy conflict.
Military caregiver leave entitles an eligible employee who is the spouse, son, daughter, parent, or next of kin of a “covered servicemember” to take up to 26 workweeks of FMLA leave in a “single 12-month period” to care for a covered servicemember with a serious injury or illness. Under the FY 2010 NDAA amendments, the definition of “covered servicemember” is expanded to include a veteran “who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness” if the veteran was a member of the Armed Forces “at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.” The FY 2010 NDAA amendments define a serious injury or illness for a covered veteran as “a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.”
The amendments also expand the definition of “serious illness or injury” to include an injury or illness of a current member of the military that “existed before the beginning of the member's active duty and was aggravated by service in line of duty” and that may cause the servicemember to be unable to perform the duties of his or her office, grade, rank, or rating. The Department does not attempt in this analysis to estimate the number of additional current servicemembers who may be covered under this expansion of the definition due to the lack of data to support reasonable assumptions on the potential size of this group. However, for the reasons discussed earlier in this preamble, the Department believes it is reasonable to conclude that the number of servicemembers entering the military with an injury or illness with the potential to be aggravated by service to the point of rendering the servicemember unable to perform the duties of his or her office, grade, rank, or rating is quite small due to the selection process used by the U.S. Armed Forces.
To determine the number of eligible employees that may take FMLA leave as a result of the expansion of caregiver leave to family members of covered veterans, the Department first estimated the number of veterans likely to undergo medical treatment for a serious injury or illness, and the number of family members who are employed by a covered employer and who may be eligible to take FMLA leave to care for them. The Department reviewed several summaries of injuries and illnesses among military servicemembers to estimate the rate at which injuries that are sufficiently severe as to require medical care after separation from the military might occur.
Dole, R. and D. Shalala. Serve, Support, and Simplify. Report of the President's Commission on Care for America's Returning Wounded Warriors. July, 2007.
Fischer, H. United States Military Casualty Statistics: Operation Iraqi Freedom and Operation Enduring Freedom. CRS Report for Congress. Congressional Research Service, March 25, 2009.
Tanielian, T. and L.H. Jaycox (eds.). Invisible Wounds: Mental Health and Cognitive Care Needs of America's Returning Veterans. Research Highlights. RAND Center for Military Health Policy Research. 2008.
U.S. Department of Defense. DoD Military Injury Metrics Working Group White Paper. December 2002.
▪ The Department of Defense generally publishes data on the number of servicemembers killed or wounded in action, but little about non-combat injuries and illnesses.
▪ Except for the most severe injuries (
After completing its review, described below, the Department estimates that an average of about 46,900 servicemembers will incur injuries or illnesses that may require treatment after separation from the military, for which family members will be eligible for military caregiver leave.
The Department first estimated the percent of servicemembers that might receive an injury or illness requiring care while in the service or after separation. In 2001, the Department of Veterans Affairs undertook a survey that showed 24 percent of veterans that served during the Gulf War era reported having a service-related disability rating.
The Department then examined deployment rates across different time periods. Table 3–1 indicates that servicemembers deployed during the Gulf War of 1991 account for about 28 percent of the total active military at that time. The same tables show that servicemembers deployed in Operations Enduring Freedom and Iraqi Freedom (Iraq (2)) comprise a smaller percentage of the active military (roughly 20 percent). However, the Department believes this is an underestimate; because the second Iraq conflict lasted several years, it is likely that many in the active military not deployed at the time of the snapshot were deployed sometime during its duration; conversely, the first Iraq war was relatively brief, and personnel had a smaller likelihood of rotating into the war zone during its duration. Therefore, the Department believes that the percent of active military personnel that were deployed to Afghanistan or Iraq is higher than the calculations in Table 3–1 show, and that the true percent is similar to the first Iraq conflict: approximately 30 percent of active military personnel were deployed. The Department also concludes that the percent of veterans that received a service-connected disability rating from the first Gulf War era is a reasonable proxy for veterans of the period 2003 through 2007, about 25 percent (rounded up from 24 percent). Thus, the Department expects that at least 25 percent of active military personnel in the post-9/11 era will separate from the military with a disability rating.
Data provided by the Department of Veterans' Affairs indicates that among the population of current veterans with a disability rating, 39.3 percent have a rating of 50 percent or greater (Table 3–3). Assuming the distribution of disability ratings among servicemembers who will separate from the military in years to come is the same as the distribution of disability ratings of current veterans, the Department estimates that 10 percent (rounding up, 25 percent × 40 percent = 10 percent) of separating servicemembers will have a disability rating of 50 percent or greater.
However, it is possible that a servicemember may not manifest the symptoms of a serious injury or illness at the time of his or her separation, and therefore, not go through the VA disability rating process prior to leaving the service. In 2008, the RAND organization published a report entitled
▪ 11.2 percent met the criteria for post-traumatic stress disorder (PTSD) or depression,
▪ 12.2 percent had likely experienced a traumatic brain injury (TBI),
▪ 7.3 percent had experienced both a TBI and either PTSD or a TBI and depression, and
▪ Roughly 50 percent of these servicemembers sought treatment for their symptoms within one year of returning from overseas.
DeKosky, S.T., M.D. Ikonomovic, and S. Gandy. 2010. Traumatic Brain Injury—Football, Warfare, and Long-Term Effects. The New England Journal of Medicine. 363:14. September 30.
U.S. Department of Veterans Affairs. 38 CFR Part 3. Post Traumatic Stress Syndrome. Interim Final Rule. Federal Register, Vol. 73, No. 210, p. 64208.
Consequently, the Department must also account for veterans who may
In summary, for the purposes of this PRIA, the Department assumes that 20 percent of servicemembers may separate from the military with an injury or illness requiring treatment. This may be an overestimate. We assume that of the additional 10 percent of servicemembers that experience a serious injury or illness that might not manifest until well after the event occurs (
This estimate suffers from a number of qualifications and limitations:
This injury rate was based on data for military personnel that had a high likelihood of experiencing active combat while in the military; to the extent that future cohorts experience less combat, the injury rate may well be significantly smaller.
It is not clear that all injuries included in this figure will be severe enough to require treatment.
Even if the injury is severe, it is unclear that the servicemember will seek treatment; it has long been known that the treatment rate for mental health conditions such as depression amongst the general population is less than 100 percent.
This estimate does not account for other injuries that might require treatment; however, the Department could find little data on which to base an estimate of such injuries.
This estimate abstracts from the requirement that treatment must occur within five years of separation for the injury to be eligible for FMLA caregiver leave. Thus, we implicitly assume 100 percent will seek treatment within five years.
The Department used projections of military personnel separations for fiscal years 2010 through 2036 from the Department of Veterans Affairs as the basis for the average number of personnel who might newly seek medical care in a given year,
The Department proposes to define a serious injury or illness of a veteran as an injury or illness incurred in the line of duty on active duty (or a pre-existing injury or illness exacerbated by service) that manifests itself before or after the member became a veteran and is either: a continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember's office, grade, rank, or rating; a physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50 percent or higher and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or is a condition which significantly impairs the veteran's ability to secure or follow a substantially gainful occupation. Assuming an annual cohort of 203,000 personnel separate from the military each year, and that 20 percent of those personnel incurred an injury or illness in service that manifests before or after the servicemember became a veteran, the Department estimates that approximately 40,600 military personnel (20 percent of 203,000) per year might have family members who may take FMLA caregiver leave, if the regulatory requirements are met. This estimate may be over-inclusive due to data limitations on the severity of service-related injuries and illnesses.
For the 2008 final rule, the Department estimated 1,500 to 14,000 servicemembers will suffer serious injuries or illnesses that require treatment while in the military, and for which family members will take military caregiver leave. 73 FR 68043. Because military caregiver leave may be used for the same injury when the servicemember is in active duty and again when the servicemember becomes a veteran, the family members of these servicemembers in most instances will be eligible for additional caregiver leave after separation from the military by the servicemember. The economic impact attributable to the first instance of leave was accounted for in the 2008 revisions to FMLA, and this economic analysis will need to account for the possibility that these family members may take additional military caregiver leave when their servicemember becomes a veteran.
To determine the number of servicemembers whose family members may take military caregiver leave when the servicemember is on active duty and again when the servicemember becomes a veteran the Department assumes that 100 percent of the servicemembers will receive treatment while in the military and that about 50 percent will seek treatment as a veteran (
In the 2008 final rule, the Department developed a profile of the “typical” usage of military caregiver leave over the course of a 12-month period for an eligible employee. Under this profile of leave, the typical employee will take a block of four weeks of unforeseeable leave upon notification of the serious injury or illness, a second block of two weeks of unforeseeable leave following
This profile is based on a typical leave pattern of an eligible employee caring for an injured or ill servicemember on active duty; for the purpose of this analysis, the profile was adjusted to capture a likely leave pattern for employees taking leave to care for a covered veteran. In this case, the nature of the serious injury or illness is expected to be different from those encountered during active duty. We assume an injury to an active duty servicemember that results in FMLA caregiver leave is likely to be a sudden, severe injury, which necessitates a large block of leave for the employee to travel to be at the bedside of the injured servicemember. Conversely, ongoing treatment for an existing injury or diagnosis and then treatment of an emerging injury or illness (
Based on this profile, the Department estimates that 15,500 eligible employees will take 854,000 days (6.8 million hours) of FMLA leave annually to act as a caregiver for a veteran who is undergoing treatment for a serious illness or injury.
The proposed changes to the FMLA eligibility requirements for airline flight crew employees do not alter the number of covered employers in the airline industry but increase the number of pilots, co-pilots, flight attendants and flight engineers who are eligible to take FMLA leave, and as a result, will likely increase the total number of FMLA leaves taken by these employees in the airline industry.
The Department estimated the profile of covered employers in the “Air Transportation” industry, the number of flight crew employees who would be eligible for FMLA leave, and the number of leaves they may take. The profile of covered employers, see Table 3–6 below, was developed by estimating the proportion of NAICS code 48 classified as “Air Transportation” (NAICS 481) in each size class from the 2006 Statistics of U.S. Businesses at the 6-digit NAICS level. This proportion was multiplied by the total number of establishments, firms, employment and payroll in NAICS 48 according to the 2008 BLS special tabulations. Next, employers with fewer than 50 employees were dropped from the profile; as described below, the Department did not attempt to make an adjustment for establishments with fewer than 50 employees that are owned by firms with more than 50 employees in a 75 mile area for this sub-industry.
Based on conversations with experts in the airline industry, the Department assumes that all potentially eligible airline flight crew employees are employed at a covered worksite. In general, flight crew members are scheduled for flights from a home base, or “domicile.” A domicile would not only include the airline flight crew employees, but the non-flight crew employees as well; therefore, the interviewees observed that for most carriers it was very unlikely that airline flight crew employees would be employed at a domicile with fewer than 50 total employees.
The next step was to determine the proportion of those flight crew members who will be eligible for FMLA leave. Crew members who are paid for 50 to 60 hours per month will, over the course of a 12-month period, be paid for 600 to 720 hours and they will easily meet the hours of service required for eligibility under the AFCTCA. According to sample data provided by the industry, about 80 percent of American Airlines flight attendants are paid for 50 or more hours per month, and this is considered reasonably representative of industry patterns.
Many airlines have already incorporated FMLA-type provisions in collective bargaining agreements with pilots and flight attendants. In terms of the costs associated with the number of leaves resulting from the proposed changes, it is important to consider the proportion of airline flight crew employees already taking FMLA-type leave under collective bargaining agreements. Based on a review of the current FMLA-type leave policies in the labor contracts for 19 air carriers, the Department finds that about 20 percent of pilots, and 35 to 40 percent of flight attendants are covered and eligible for FMLA-type leave policies.
Because there is little information available on the FMLA-type leave usage patterns of flight crew employees, the Department assumes that flight attendants will use FMLA leave at a similar rate to the rest of the population. Based on interviews with experts in the airline industry, pilots (also co-pilots and flight engineers) tend to use less FMLA-type leave due to different demographic needs and the availability of other types of paid leave.
In developing a proposed method to calculate FMLA-leave usage for airline flight crew employees on reserve status, the Department considered a methodology based solely on the FLSA principles of hours worked, as is typically used for employees other than airline flight crew employees. However, since the airline industry is already tracking and recording airline flight crew employees' hours pursuant to FAA regulations, such as the flight, duty, and rest rules, the Department rejected this option.
This section describes the costs associated with the proposed changes to FMLA, including: regulatory familiarization, employer and employee notices, certifications, and other costs.
In response to the proposed changes to the FMLA, each employer will need to review the changes and determine what revisions are necessary to their policies, obtain copies of the revised FMLA poster and templates for required notices and certifications, and update their handbooks or other leave-related materials to incorporate the changes (
Under the FMLA, as described in § 825.300, employers are required to provide certain types of notices to employees regarding FMLA eligibility, employee rights and responsibilities, and employee usage of leave. The estimated time to complete each notice is based on the PRA contained in the final rule. 73 FR 68040.
Under the FMLA, as described in § 825.305, employers are allowed to request certification to support an employee's need for FMLA leave due to their own or a family member's serious health condition, the serious injury or illness of a covered servicemember, a qualifying exigency, or to verify an employee's fitness for duty after an absence due to their own health condition.
The FMLA includes employer recordkeeping requirements but those costs are not addressed here because the proposed changes do not affect the type of records the employer is required to keep nor the amount of time they must keep them. Employers must continue to keep and maintain records under the proposed changes as they are required to do so under the current regulations. Additionally, while the proposed rule does newly cover airline flight crew employees, the Department expects that employers in the airline industry have already been tracking non-flight crew employees' hours to comply with the FMLA. Covered airlines must currently comply with FMLA with respect to employees, such as ticketing agents, baggage handlers, and administrative personnel. As such, the Department does not expect the proposed rule to create any additional recordkeeping burdens on airline employers.
a.
b.
In the initial FMLA rulemaking, the Department drew upon available research to suggest that the cost per employer to adjust for workers who are on FMLA leave is fairly small. 58 FR 31810. As in previous rulemakings, the Department is requesting information from businesses on the impact of different strategies for compensating for workers on leave, particularly the extent to which work is redistributed among other workers, and the costs of recruiting and training temporary workers.
For the purpose of this analysis, we will continue to assume that these costs are fairly small; furthermore, most employers subject to this rule change have been implementing FMLA for some time and have already developed internal systems for work redistribution and recruitment and training of temporary workers. The air transportation industry, however, is an exception to this reasoning and employers in this industry may face additional challenges with respect to scheduling.
Due to the nature of the industry, airlines have varied and complex approaches to scheduling airline flight crew employees for flights.
Overall, the scheduling is fairly flexible in order to manage schedule changes; for example, “block holders” can be rescheduled to cover additional flights, flight attendants can engage in “trip trading” or volunteer for open flying time, and airlines can use “dead heading” to fly in a crew from another airport.
There are several key limitations to the flexibility of the system; the primary one being regulatory limits on flying time and equipment. This limitation is the most stringent for pilots who have more restrictive limitations on flying time than other flight crew members and who may only fly specific types of aircraft. Additionally, schedule changes due to events such as severe weather can impact scheduling; reserve flight crew members are utilized to make up for cancelled and rescheduled flights.
At this point, it is not clear if the AFCTCA will impose a significant cost on air transportation employers, nor the potential magnitude of the cost. The Department believes that the rule will increase the number of flight crew leaves classified as FMLA, but may not necessarily increase the absolute number of leaves taken by these workers.
This section draws on the estimates of potentially affected employees, and the unit costs discussed above to determine the anticipated impact of the proposed regulations in terms of total cost across all industries as well as estimated cost per firm and per employee.
The total estimated impact of the proposed changes is $72.4 million in the first year with $59.8 million in recurring costs in subsequent years. Table 5–1 summarizes the total estimated costs of the proposed changes to FMLA by cost
All covered employers will incur costs of $12.6 million during the first year for regulatory familiarization associated with any new FMLA revision. Other than the initial regulatory familiarization costs that occur in the first year, all other costs are annual costs; they occur in the first year, and in each subsequent year. Covered employers in the air transportation industry who are not already providing family and medical leave to flight crew employees will incur costs of about $372 thousand per year to implement the changes. Covered employers of workers eligible for military family leave will incur costs of about $59.4 million per year as a result of the proposed changes. Looking at the key requirements of FMLA, most of the costs of the proposed changes will stem from generation of employer notices and maintenance of health benefits in recurring years.
To facilitate the public's understanding of the impact of this proposed rule, the Department provides some alternative assumptions on the utilization of leave and corresponding costs. However, due to the lack of reliable data on which to base alternative assumptions, we do not include these ranges in the summary analysis.
The Department estimates the cost of the NDAA as $59.4 million, with qualifying exigency leave costing $25.8 million and military caregiver leave costing $33.6 million. However, under different scenarios, the cost of the NDAA may increase or decrease. The cost of qualifying exigency leave will vary between $2.6 million and $54.6 million in times of low conflict and high conflict.
Similarly, if the definition of serious injury or illness was set only to include disability ratings of 60% or greater (
Table 5–2 provides the total, net present value and average annualized projected compliance costs over 10 years. Average annualized costs take the entire stream of costs over 10 years, including both first-year costs that are only incurred once, and recurring costs that are incurred every year, and converts them into a stream of equal annual payments with a net present value equal to the original stream of time-varying costs at the specified real discount rate. Calculating annualized costs allows the examination of an appropriate measure of average costs (by accounting for the time-value of money) over time without overestimating impacts by focusing on initial costs, or underestimating impacts by focusing solely on recurring costs. The OMB directs that the streams of costs and benefits should be discounted using a 7 percent real discount rate; we also include the three percent real discount rate for reference.
The results presented in the table show that the proposed changes are projected to cost an average of $61.4 million per year over 10 years using a 7 percent real discount rate.
With respect to the proposed amendments to the rule, the military family leave provisions (FY 2010 NDAA) account for about 96.7 percent of the total annualized cost. In terms of requirements of the rule, employer notices and maintenance of health benefits each account for about 44 and 52 percent of the total cost, respectively.
In this section we review the impact of projected regulatory costs on business income. To avoid misrepresenting impacts, they are presented in four different ways: First year costs are the largest, thus the ratio of first-year costs to income (business and worker) represent the most severe impacts that might be incurred in any one year; the ratio of recurring costs to income are more typical impacts—those that can be expected in any year except the first year; finally, average annualized costs, as described above reflect the overall average over 10 years.
Table 5–3 presents the impact of the projected costs on firm income and payroll with respect to first year and recurring costs; the impacts are disaggregated by proposed amendment and regulatory requirement. The projected first year costs of the proposed rule are about $190 per firm, which is less than one-hundredth of a percent of average annual revenues and payroll. For most firms, the military family leave provisions account for the largest part of this impact, at $156 per firm. With the exception of regulatory familiarization, first year costs for employer notices, certifications, and the maintenance of health benefits are identical to the amounts incurred in each subsequent year. The cost of the flight crew technical amendments may be a small portion of overall first year costs, but the impact will be concentrated on the air transportation industry. As a result, the cost per firm is $1,016, which is less than one-hundredth of a percent of average annual revenues and payroll.
The impact of the recurring costs will be about $157 per firm; the military family leave provisions continue to be the driver of the size of the impact due to the cost of employer notices and maintenance of employee health benefits associated with the requirement.
Table 5–3 also presents the impact of projected costs on firm and worker income for average annualized costs with a 7 percent real discount rate. The results demonstrate that the overall average annualized cost of the rule is $61.5 million, or about $161 per firm ($1,016 per firm in the air transportation industry).
Finally, the impacts presented in Tables 5–3 also show the costs per firm as a percent of firm resources. The Department estimated impacts as the national costs of the rule divided by the number of affected firms (including government entities). The total cost per firm of $161 based on the total annualized cost at a 7 percent discount rate composes approximately 3 ten-thousandths of 1 percent of average annual firm revenue. However, it is likely that some of these costs will be borne by the firm and some by the workers; the exact incidence of these impacts will depend on the relative bargaining strength of firms and workers which will vary by industry.
The Department anticipates significant benefits resulting from the proposed revisions. Employers that have adopted flexible workplace practices cite many economic benefits such as reduced worker absenteeism and turnover, improvements in their ability to attract and retain workers, and other positive changes that translate into increased worker productivity. “Work-Life Balance and the Economics of Workplace Flexibility” at 16, Executive Office of the President, Council of Economic Advisors (March 2010). However, quantifying the benefits is challenging.
The benefits stemming from improving access to military leave for military family members were described in the 2008 final rule as follows:
[T]he families of servicemembers will no longer have to worry about losing their jobs or health insurance due to absences to care for a covered seriously injured or ill servicemember or due to a qualifying exigency resulting from active duty or call to active duty in support of a contingency operation.
Providing job-protected leave for caregivers of covered veterans under the military caregiver provision is expected to have several benefits, including increased family involvement in recovery, improved self-reliance and access to resources for caregivers, and a reduction in negative outcomes for covered veterans and their families.
Recent research suggests that as many as 30 percent of returning servicemembers may suffer from symptoms of PTSD, major depression, and/or traumatic brain injury. These individuals often suffer from:
▪ Co-morbitities such as anxiety and mood disorders, and substance abuse,
▪ Increased risk of suicidal ideation and attempts;
▪ Higher rates of unhealthy behaviors such as smoking, poor diet, and unsafe sex;
▪ Higher rates of other health problems and mortality; and
▪ Decreased work productivity in the form of missed work days and decreased performance at work.
While this study focused on active servicemembers, these disorders involve long timeframes for recovery and management of the symptoms so it is reasonable to conclude that these same issues would impact the servicemember following separation from service. Furthermore, the impact of these disorders, and other serious injuries or illnesses incurred by covered servicemembers and veterans, extends to family members as well. Common issues include marital discord and increased likelihood of divorce, intimate partner violence, poor parenting skills and poor child outcomes, and caregiver burden. In “Economic Impact on Caregivers of the Seriously Wounded, Ill, and Injured,” the authors describe the impact on caregivers as follows:
Family support is critical to patients' successful rehabilitation. Especially in a prolonged recovery, it is family members who make therapy appointments and ensure they are kept, drive the servicemember to these appointments, pick up medications and make sure they are taken, provide a wide range of personal care, become the impassioned advocates, take care of the kids, pay the bills and negotiate with the benefits offices, find suitable housing for a family that includes a person with a disability, provide emotional support, and, in short, find they have a full-time job—or more—for which they never prepared. When family members give up jobs to become caregivers, income can drop precipitously.
The support provided by caregivers plays a pivotal role in the course of the servicemember's recovery, as noted in “Invisible Wounds of War”:
The likelihood that the condition will trigger a negative cascade of consequences over time is greater if the initial symptoms of the condition are more severe and the afflicted individual has other sources of vulnerability * * * Early interventions are likely to pay long-term dividends in improved outcomes for years to come; so, it is critical to help servicemembers and veterans seek and receive treatment.
Providing caregivers with job-protected FMLA leave to care for their family member who is a covered veteran creates a window of opportunity to interrupt the negative cascade of consequences experienced by sufferers of PTSD, TBI and depression. Furthermore, maintaining the flow of resources and self-sufficiency provided by a secure employment situation ensures that the caregivers are able to maintain their own mental and physical health during the veteran's recovery process.
At this point, there is not sufficient data to accurately estimate the number of servicemembers suffering from these disorders or the range of severity of symptoms; as a result, we are unable to quantify the benefits of reduced rates of negative outcomes for affected veterans and their families. However, in “Invisible Wounds of War,” RAND developed estimates of costs associated with PTSD, major depression, and TBI stemming from the conflicts in Afghanistan and Iraq. For example:
▪ Servicemembers diagnosed with PTSD incur costs of $5,000–10,000 per servicemember during the first two years after returning home.
▪ Servicemembers diagnosed with major depression incur costs of $15,000—25,000 per servicemember during the first two years after returning home.
▪ Servicemembers diagnosed with TBI incur costs of $27,000 to 32,000 for a mild case up to $268,000 to 408,000 for severe cases.
The proposed regulatory change will likely reduce these costs, and the costs associated with other negative outcomes associated with these diagnoses; but, at this point in time we do not have sufficient data to estimate the reduction in costs.
As a result of the proposed changes airline flight crew employees will enjoy all the benefits of FMLA coverage that have been afforded to employees in other industries. Additionally, as discussed in the 2008 final rule, employers may see reduced “presenteeism”—the loss of productivity due to employees working while injured or ill—and a resultant increase in overall productivity, workplace safety, and wellness among employees. 73 FR 68071.
This section describes the analysis of impacts on small entities of the proposed rule. The Regulatory Flexibility Act of 1980 (RFA) requires agencies to prepare regulatory flexibility analyses and make them available for public comment when proposing regulations that will have a significant economic impact on a substantial number of small entities.
The Department has determined that an Initial Regulatory Flexibility Analysis under the RFA is not required for this rulemaking. The FMLA covers private employers of 50 or more employees; employers with fewer than 50 employees are exempt. Moreover, Congress defined, for the purpose of the FMLA, a small business to be one with fewer than 50 employees. Therefore, changes to the FMLA regulations by definition will not impact small businesses.
The Small Business Administration size standard is 500 employees, therefore employers with 50 to 500 employees will be affected by this regulation. Coverage under the FMLA is limited to an estimated 314,752 small employers with 50 to 500 employees. This rule is estimated to cost an average of $190 per firm in the first year, and an average of $157 per firm each year thereafter.
The RFA defines a “small entity” as a: (1) Small not-for-profit organization, (2) small governmental jurisdiction, or (3) small business. The Department relied upon standards defined by the Small Business Administration (SBA) to identify firms and governments classified as small. For the purposes of this rulemaking effort, we did not attempt to analyze not-for-profit organizations other than as they appear in the BLS QCEW data used as the basis for the analysis (
This analysis focuses solely on the costs and impacts of the proposed regulations on small entities and draws on the industry profile described in the E.O. 12866 analysis of this preamble. The Department assumed all firms with fewer than 500 employees are small.
A small governmental jurisdiction is defined as the government of a city, county, town, township, village, school district, or special district with a population of less than 50,000. The Department used the field specifying the population of the governmental jurisdiction in the Census of Governments to determine the number of government entities considered small for RFA purposes. All State governments were assumed to be large for RFA purposes.
Applying these size assumptions to the universe of potentially affected firms (Tables 6–1A) we estimate that 83 percent of entities, about 315,000 impacted by the proposed rule meet SBA's criteria for a small entity. Of those, 251,000 are private sector businesses employing about 57 percent of all workers and earning about 57 percent of estimated revenues. The remaining 63,600 are small government entities employing about 11 percent of workers and accruing about 5 percent of all estimated revenues. About 17
Table 6–1B presents the number of affected entities for the air transportation industry. While 63 percent of firms are small by SBA standards, the 37 percent of firms that are not small account for 75 percent of establishments, 95 percent of employees and payroll, 96 percent of revenues and 99 percent of net income.
Table 6–2A summarizes estimated first-year, recurring, and annualized compliance costs attributable to the proposed rule for both small and non-small businesses. Among all entities (both business and government) potentially affected by the proposed rule 83 percent are small for the purposes of the RFA.
Small entities constitute the substantial majority of affected entities and are projected to incur the majority of compliance costs; however, they do not bear a disproportionate share of projected costs, nor will those costs result in a significant economic impact on those small entities. First-year costs of the rule are the largest costs incurred by all entities, but these average less than $200 for small firms in the private sector and for small government entities.
In summary, although the potential impacts of the proposed rule are larger for small firms when measured as the absolute cost per firm or employee, or as a percent of firm revenues or employee wages, small firms do not bear a disproportionate burden under this rule. Therefore, the Department believes that the proposed rule will not have a significant economic impact on a substantial number of small entities. Furthermore, as noted above, Congress defined “small business” for the purpose of the FMLA as one employing fewer than 50 employees and the proposed regulation therefore, by definition, does not impact small entities. However, using SBA's size standard of 500 employees to define “small business”, an estimated 314,752 employers with 50 to 500 employees are covered by the FMLA, this rule is only estimated to cost an average of $161 per small firm in the first year, and an average of $129 per small firm each year thereafter. This regulation will not have a significant economic impact on any of these small entities. Therefore, the Department has determined and certified that this rule will not have a significant economic impact on a substantial number of small entities.
In order to estimate the number of individuals who may take leave under the qualifying exigency or military caregiver provisions as a result of the proposed changes, the Department estimated (1) the number of active duty servicemembers whose family members are entitled to qualifying exigency leave and the number of veterans whose family members will be entitled to caregiver leave, (2) the age profile of those servicemembers and veterans, and (3) the number of eligible family members or caregivers associated with that age profile. The first estimate is described earlier in this preamble. This appendix provides an explanation of the method used to develop the age profiles and eligible family members.
The Department attempted to replicate the method used in the CONSAD 2007 report to ensure consistency with previous estimates.
The first step is to apply the age profile of servicemembers to the estimated number of servicemembers to distribute the number of servicemembers to the age groups. Table A–1 presents the estimated proportion of servicemembers by age range estimated by CONSAD. The Department aggregated the age groups for this calculation. For example, if the proposed rule was expected to affect 100 servicemembers then this age profile would estimate that 47 of them would be between the ages of 22 and 30 years old.
The next step is to estimate the number of servicemembers in each age group with 0, 1, 2, 3, 4, or 5 eligible family members. Table A–2 presents the estimated number of eligible family members by age range of the servicemember.
Finally, the number of estimated eligible family members for each age group of servicemembers is summed up by multiplying the number of servicemembers in each column by the number of eligible family members. For example, for each age group the calculation is (# × 0) + (# × 1) + (# × 2) + (# × 3) + (# × 4) + (# × 5). Next, the total number of eligible family members is summed across the age groups to estimate the total number of eligible family members.
The following sections illustrate this method for the calculation of the number of eligible family members who may take qualifying exigency leave, and the number of eligible family members who may take leave to act as a military caregiver for a covered veteran.
Table A–3 presents the calculation of the projected number of servicemembers in each age category based on the estimated average number of covered military members and age profile of military members.
Table A–4 presents the calculation of the number of eligible family members of servicemembers in each age group; this combines the projected number of servicemembers from Table A–3 with the distribution of family members presented in Table A–2.
Table A–5 presents the calculation of the projected number of servicemembers in each age category based on the estimated average number and age profile of servicemembers and covered veterans.
Table A–6 presents the calculation of the number of eligible caregivers of servicemembers in each age group; this combines the projected number of servicemembers from Table A–5 with the distribution of family members presented in Table A–2 with one difference. Under military caregiver leave we assume that each covered servicemember has at least one caregiver; so, the servicemembers in the category “0” caregivers are assumed to have at least 1 caregiver.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments as well as on the private sector. Under Section 202(a) of UMRA, the Department must generally prepare a written statement, including a cost-benefit analysis, for proposed and final regulations that “includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate or by the private sector” in excess of $100 million in any one year (equivalent to $143 million in 2010 dollars after adjusting for inflation).
State, local, and tribal government entities are within the scope of the regulated community for this proposed regulation. The Department has determined that this rule contains a Federal mandate that is unlikely to result in expenditures of $143 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Total costs to government entities do not exceed $25 million in any single year of the rule (
The proposed rule does not have federalism implications as outlined in E.O. 13132 regarding federalism. Although States are covered employers under the FMLA, the proposed rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
This proposed rule was reviewed under the terms of E.O. 13175 and determined not to have “tribal implications.” The proposed rule does not have “substantial direct effects 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.” As a result, no tribal summary impact statement has been prepared.
The undersigned hereby certifies that this proposed rule will not adversely affect the well-being of families, as discussed under section 654 of the Treasury and General Government Appropriations Act, 1999.
E.O. 13045 applies to any rule that (1) is determined to be “economically significant” as defined in E.O. 12866, and (2) concerns an environmental health or safety risk that the promulgating agency has reason to believe may have a disproportionate effect on children. This proposal is not subject to E.O. 13045 because although the rule addresses family and medical leave provisions of the FMLA including the rights of employees to take leave for the birth or adoption of a child and to care for a healthy newborn or adopted
A review of this proposal in accordance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
This proposed rule is not subject to E.O. 13211. It will not have a significant adverse effect on the supply, distribution or use of energy.
This proposal is not subject to E.O. 12630, because it does not involve implementation of a policy “that has takings implications” or that could impose limitations on private property use.
This proposed rule was drafted and reviewed in accordance with E.O. 12988 and will not unduly burden the Federal court system. The proposed rule was: (1) Reviewed to eliminate drafting errors and ambiguities; (2) written to minimize litigation; and (3) written to provide a clear legal standard for affected conduct and to promote burden reduction.
Employee benefit plans, Health, Health insurance, Labor management relations, Maternal and child health, Teachers.
For the reasons set out in the preamble, the Department of Labor proposes to amend Title 29 part 825 of the Code of Federal Regulations as follows:
1. The authority citation for part 825 continues to read as follows:
29 U.S.C. 2654
2. Amend § 825.100 by revising the first and second sentences of paragraph (a) to read as follows:
(a) The Family and Medical Leave Act of 1993, as amended, (FMLA or Act) allows “eligible” employees of a covered employer to take job-protected, unpaid leave, or to substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 12 workweeks in any 12 months (
3. Amend § 825.101 by revising the first sentence of paragraph (a) to read as follows:
(a) FMLA is intended to allow employees to balance their work and family life by taking reasonable unpaid leave for medical reasons, for the birth or adoption of a child, for the care of a child, spouse, or parent who has a serious health condition, for the care of a covered servicemember with a serious injury or illness, or because of a qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status. * * *
4. Amend § 825.107 by revising the last sentence of paragraph (c) to read as follows:
(c) * * * A successor which meets FMLA's coverage criteria must count periods of employment and hours of service with the predecessor for purposes of determining employee eligibility for FMLA leave.
5. Amend § 825.110 by:
a. revising paragraph (a)(2);
b. revising the first and third sentences of paragraph (b)(2)(i);
c. revising the first sentence of paragraph (c)(1);
d. adding new paragraph (c)(2);
e. re-designating current paragraph (c)(2) as (c)(3);
f. revising the first sentence of newly designated paragraph (c)(3);
g. re-designating current paragraph (c)(3) as (c)(4);
h. revising newly designated (c)(4); and
i. revising paragraph (d)
(a) * * *
(2) Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave (
(b) * * *
(2) * * *
(i) The employee's break in service is occasioned by the fulfillment of his or her Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301,
(c)(1) Except as provided in paragraph (c)(2) and (3) of this section, whether an employee has worked the minimum 1,250 hours of service is determined according to the principles established under the Fair Labor Standards Act (FLSA) for determining compensable hours of work. * * *
(2) Whether an airline flight crew employee meets the hours of service requirement is determined by assessing the number of hours the employee has worked or been paid over the previous 12 months. An airline flight crew employee will meet the hours of service requirement during the previous 12-month period if he or she has worked or been paid for not less than 60 percent of the employee's applicable monthly guarantee and has worked or been paid for not less than 504 hours.
(i) The applicable monthly guarantee for an airline flight crew employee who is not on reserve status is the minimum number of hours for which an employer has agreed to schedule such employee for any given month. The applicable monthly guarantee for an airline flight crew employee who is on reserve status is the number of hours for which an employer has agreed to pay the employee for any given month
(ii) The hours an airline flight crew employee has worked for purposes of the hours of service requirement is the employee's duty hours during the previous 12-month period. The hours an airline flight crew employee has been paid is the number of hours for which an employee received wages during the previous 12-month period. The 504 hours do not include personal commute time or time spent on vacation, medical, or sick leave.
(3) An employee returning from his or her USERRA qualifying military service shall be credited with the hours of service that would have been performed
(4) In the event an employer does not maintain an accurate record of hours worked by an employee (or hours paid, in the case of an airline flight crew employee), including for employees who are exempt from FLSA's requirement that a record be kept of their hours worked (
(d) The determination of whether an employee meets the hours of service requirement and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on “non-FMLA leave” at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be “FMLA leave.” (
6. Amend § 825.112 by revising paragraph (a)(5) and (a)(6) to read as follows:
(a) * * *
(5) Because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status (
(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember (
7. Amend § 825.122 by:
a. revising the section heading;
b. replacing “active duty” with “covered active duty” in each instance that it appears in the heading and this section;
c. re-designating current paragraphs (a) through (j) as (b) through (k)
d. adding new paragraph (a); and
e. revising the last sentence in paragraph (h)
The additions and revisions read as follows:
(a) Covered servicemember.
(1) A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
(2) A covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. “Covered veteran” means an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date of the employee's military caregiver leave.
(h) * * *
7. Revise § 825.126 to read as follows:
(a) Eligible employees may take FMLA leave for a qualifying exigency while the employee's spouse, son, daughter, or parent (the “military member” or “member”) is on covered active duty or call to covered active duty status.
(1) “Covered active duty or call to covered active duty status” in the case of a member of the Regular Armed Forces means duty under a call or order to active duty (or notification of an impending call or order to covered active duty) during the deployment of the member with the Armed Forces to a foreign country. The active duty orders of a member of the Regular components of the Armed Forces will generally specify if the member is deployed to a foreign country.
(2) “Covered active duty or call to covered active duty status” in the case of a member of the Reserve components of the Armed Forces means duty under a call or order to active duty (or notification of an impending call or order to active duty) during the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty in support of a contingency operation pursuant to: Section 688 of Title 10 of the United States Code, which authorizes ordering to active duty retired members of the Regular Armed Forces and members of the retired Reserve who retired after completing at least 20 years of active service; Section 12301(a) of Title 10 of the United States Code, which authorizes ordering all reserve component members to active duty in the case of war or national emergency; Section 12302 of Title 10 of the United States Code, which authorizes ordering any unit or unassigned member of the Ready Reserve to active duty; Section 12304 of Title 10 of the United States Code, which authorizes ordering any unit or unassigned member of the Selected Reserve and certain members of the Individual Ready Reserve to active duty; Section 12305 of Title 10 of the United States Code, which authorizes the suspension of promotion, retirement or separation rules for certain Reserve
(i) For purposes of covered active duty or call to covered active duty status, the Reserve components of the Armed Forces include the Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve and Coast Guard Reserve, and retired members of the Regular Armed Forces or Reserves who are called up in support of a contingency operation pursuant to one of the provisions of law identified in paragraph (a)(2).
(ii) The active duty orders of a member of the Reserve components will generally specify if the military member is serving in support of a contingency operation by citation to the relevant section of Title 10 of the United States Code and/or by reference to the specific name of the contingency operation and will specify that the deployment is to a foreign country.
(3) “Deployment of the member with the Armed Forces to a foreign country” means deployment to areas outside of the United States, the District of Columbia, or any Territory or possession of the United States, including international waters.
(4) A call to covered active duty for purposes of leave taken because of a qualifying exigency refers to a Federal call to active duty. State calls to active duty are not covered unless under order of the President of the United States pursuant to one of the provisions of law identified in paragraph (a)(2) of this section.
(5) A “son or daughter on covered active duty or call to covered active duty status” means the employee's biological, adopted, or foster child, stepchild, legal ward, or child for whom the employee stood in loco parentis, who is on covered active duty or call to covered active duty status, and who is of any age.
(b) An eligible employee may take FMLA leave for one or more of the following qualifying exigencies:
(1)
(i) To address any issue that arises from the fact that the military member is notified of an impending call or order to covered active duty seven or less calendar days prior to the date of deployment;
(ii) Leave taken for this purpose can be used for a period of seven calendar days beginning on the date the military member is notified of an impending call or order to covered active duty;
(2)
(i) To attend any official ceremony, program, or event sponsored by the military that is related to the covered active duty or call to covered active duty status of the military member; and
(ii) To attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the covered active duty or call to covered active duty status of the military member;
(3)
(i) To arrange for alternative childcare for a child of the military member when the covered active duty or call to covered active duty status of the military member necessitates a change in the existing childcare arrangement;
(ii) To provide childcare for a child of the military member on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the need to provide such care arises from the covered active duty or call to covered active duty status of the military member;
(iii) To enroll in or transfer to a new school or day care facility a child of the military member when enrollment or transfer is necessitated by the covered active duty or call to covered active duty status of the military member; and
(iv) To attend meetings with staff at a school or a daycare facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, or meetings with school counselors, for a child of the military member, when such meetings are necessary due to circumstances arising from the covered active duty or call to covered active duty status of the military member;
(4)
(i) To make or update financial or legal arrangements to address the military member's absence while on covered active duty or call to covered active duty status, such as preparing and executing financial and healthcare powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military identification cards, or preparing or updating a will or living trust; and
(ii) To act as the military member's representative before a Federal, State, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the military member is on covered active duty or call to covered active duty status, and for a period of 90 days following the termination of the military member's covered active duty status;
(5)
(6)
(i) To spend time with the military member who is on short-term, temporary Rest and Recuperation leave during the period of deployment;
(ii) Eligible employees may take leave for the duration of the Rest and Recuperation leave provided to the military member, up to a maximum of 15 days for each instance of Rest and Recuperation leave;
(7)
(i) To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the military member's covered active duty status; and
(ii) To address issues that arise from the death of the military member while on covered active duty status, such as
(8)
9. Amend § 825.127 by:
a. revising the section heading;
b. re-designating current paragraphs (b) through (d) as (d) through (f) respectively;
c. adding new paragraph (b)
d. adding new paragraph (c);
e. revising the last sentence of newly designated paragraph (d)(3);
f. removing “weeks” and adding in its place “workweeks” every time it appears in paragraph (e)(3);
g. revising newly designated paragraph (f)
h. removing the phrase “paragraph (c)” everywhere it appears in newly designated paragraph (e) and adding in its place “paragraph (e)” to read as follows:
(a) Eligible employees are entitled to FMLA leave to care for a covered servicemember with a serious illness or injury.
(b) “Covered servicemember” means:
(1) A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. “Outpatient status” means the status of a member of the Armed Forces assigned to either a military medical treatment facility as an outpatient or a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.
(2) A covered veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness. “Covered veteran” means an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. An eligible employee must commence leave to care for a covered veteran within five years of the veteran's active duty service but the “single 12-month period” described in paragraph (e)(1) of this section may extend beyond the five-year period.
(c) A “serious injury or illness”:
(1) In the case of a current member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness that was incurred by the covered servicemember in the line of duty on active duty in the Armed Forces or that existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the Armed Forces, and that may render the member medically unfit to perform the duties of the member's office, grade, rank or rating; and,
(2) In the case of a covered veteran, an injury or illness will be a qualifying serious injury or illness if it was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and manifested itself before or after the member became a veteran, and is:
(i) A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember's office, grade, rank, or rating; or
(ii) A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50% or higher, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or
(iii) A physical or mental condition that substantially impairs the covered veteran's ability to secure or follow a substantially gainful occupation by reason of a service-connected disability or disabilities, or would do so absent treatment.
(d) * * *
(3) * * * An employer is permitted to require an employee to provide confirmation of covered family relationship to the covered servicemember pursuant to § 825.122(k). * * *
(f) A husband and wife who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 26 workweeks of leave during the “single 12-month period” described in paragraph (e) of this section if the leave is taken for birth of the employee's son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement, to care for the employee's parent with a serious health condition, or to care for a covered servicemember with a serious injury or illness.
10. Amend § 825.200 as follows:
a. revising paragraph (a)(5);
b. revising the citation following the last sentence in paragraph (f); and
c. revising the citation following the last sentence in paragraph (g), to read as follows:
(a) * * *
(5) Because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.
(f) * * *
(g) * * *
11. Amend § 825.202 by revising the second sentence in paragraph (b) and revising the first sentence in paragraph (b)(1), to read as follows:
(b) * * * For intermittent leave or leave on a reduced leave schedule taken because of one's own serious health condition, to care for a spouse, parent, son, or daughter with a serious health condition, or to care for a covered servicemember with a serious injury or illness, there must be a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule. * * *
(1) Intermittent leave may be taken for a serious health condition of a spouse, parent, son, or daughter, for the employee's own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. * * *
12. Amend § 825.205 by:
a. revising paragraph (a);
b. revising paragraph (b)(1);
c. revising paragraph (c), and
d. adding paragraph (d), to read as follows:
(a)
(2) Where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to commence or end work mid-way through a shift, such as where a flight attendant or a railroad conductor is scheduled to work aboard an airplane or train, or a laboratory employee is unable to enter or leave a sealed “clean room” during a certain period of time and no equivalent position is available, the entire period that the employee is forced to be absent is designated as FMLA leave and counts against the employee's FMLA entitlement. The period of the physical impossibility is limited to the period during which the employer is unable to permit the employee to work at the same or an equivalent position prior to a period of FMLA leave or return the employee to the same or equivalent position due to the physical impossibility after a period of FMLA leave.
(b)
(c)
(d)
(2) For an airline flight crew employee on reserve status, an average of the greater of the applicable monthly guarantee or actual duty hours worked in each of the prior 12 months would be used for calculating the employee's average workweek. The workweek determination must be completed at the employee's first instance of leave and is valid for the remainder of the FMLA leave year. The amount of FMLA leave is determined on a pro rata or proportional basis according to principles established in paragraph (b) of this section. For example, if it was determined that a reserve status employee had a workweek of 20 hours after averaging the greater of the employee's monthly guarantee or actual duty hours over the past 12 months, the employee would be entitled to 12 20-hour workweeks for FMLA leave. If the employee needed four hours of FMLA leave in one workweek, the employee would have used one-fifth (
13. Amend § 825.213(a) by revising the fifth sentence in paragraph (a)(3) to read as follows:
(a) * * *
(3) * * * For purposes of medical certification, the employee may use the optional DOL forms developed for these
14. Amend § 825.300 by:
a. Removing “
b. revising the first sentence of paragraph (a)(4);
c. revising paragraph (b)(2);
d. revising paragraph (c)(1)(ii);
e. revising the first sentence of paragraph (c)(6); and
f. revising the second sentence of paragraph (d)(4) to read as follows:
(a) * * *
(4) To meet the requirements of paragraph (a)(3) of this section, employers may duplicate the text of the Department's prototype notice (WHD Publication 1420) or may use another format so long as the information provided includes, at a minimum, all of the information contained in that notice. * * *
(b) * * *
(2) The eligibility notice must state whether the employee is eligible for FMLA leave as defined in § 825.110. If the employee is not eligible for FMLA leave, the notice must state at least one reason why the employee is not eligible, including as applicable the number of months the employee has been employed by the employer, the number of hours of service with the employer during the 12-month period, and whether the employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. Notification of eligibility may be oral or in writing; employers may use optional Form WH–381 (Notice of Eligibility and Rights and Responsibility) to provide such notification to employees. Prototypes are available from the nearest office of the Wage and Hour Division or on the Internet at
(c) * * *
(1) * * *
(ii) Any requirements for the employee to furnish certification of a serious health condition, serious injury or illness, or qualifying exigency arising out of covered active duty or call to covered active duty status, and the consequences of failing to do so (
* * *
(6) A prototype notice of rights and responsibilities may be obtained from local offices of the Wage and Hour Division or from the Internet at
(d) * * *
(4) * * * A prototype designation notice may be obtained from local offices of the Wage and Hour Division or from the Internet at
15. Amend § 825.302 by:
a. removing “active duty” and adding in its place “covered active duty” whenever it appears in paragraph (c); and
b. revising the citation in the second sentence of paragraph (c), to read as follows:
(a) * * *
(c) * * * Depending on the situation, such information may include that a condition renders the employee unable to perform the functions of the job; that the employee is pregnant or has been hospitalized overnight; whether the employee or the employee's family member is under the continuing care of a health care provider; if the leave is due to a qualifying exigency, that a military member is on covered active duty or call to covered active duty status, and that the requested leave is for one of the reasons listed in § 825.126(b); if the leave is for a family member, that the condition renders the family member unable to perform daily activities, or that the family member is a covered servicemember with a serious injury or illness; and the anticipated duration of the absence, if known. * * *
16. Amend § 825.303 by:
a. removing “active duty” and adding in its place “covered active duty” every time it appears in paragraph (b);
b. revising the citation in the second sentence from 825.126(a) to 825.126(b) in paragraph (b) to read as follows:
(b) * * * Depending on the situation, such information may include that a condition renders the employee unable to perform the functions of the job; that the employee is pregnant or has been hospitalized overnight; whether the employee or the employee's family member is under the continuing care of a health care provider; if the leave is due to a qualifying exigency, that a military member is on covered active duty or call to covered active duty status, that the requested leave is for one of the reasons listed in § 825.126(b), and the anticipated duration of the absence; or if the leave is for a family member that the condition renders the family member unable to perform daily activities or that the family member is a covered servicemember with a serious injury or illness; and the anticipated duration of the absence, if known. * * *
17. Amend § 825.306 by revising paragraph (b) to read as follows:
(b) DOL has developed two optional forms (Form WH–380E and Form WH–380F, as revised) for use in obtaining medical certification, including second and third opinions, from health care providers that meets FMLA's certification requirements. Optional form WH–380E is for use when the employee's need for leave is due to the employee's own serious health condition. Optional form WH–380F is for use when the employee needs leave to care for a family member with a serious health condition. These optional forms reflect certification requirements so as to permit the health care provider to furnish appropriate medical information. Form WH–380E and WH–380F, as revised, or another form containing the same basic information, may be used by the employer; however, no information may be required beyond that specified in §§ 825.306, 825.307, and 825.308. In all instances the information on the form must relate only to the serious health condition for which the current need for leave exists. Prototype forms WH–380E and WH–380F may be obtained from local offices of the Wage and Hour Division or from the Internet at
18. Amend § 825.309 by:
a. removing “active duty” and adding in its place “covered active duty” every time it appears in this section;
b. revising paragraph (a);
c. revising paragraphs (b)(4) and (b)(5);
d. adding paragraph (b)(6);
e. removing the parenthetical at the end of the first sentence in paragraph (c); and
f. revising the first and second sentences in paragraph (c).
The additions and revisions read as follows:
(a)
(b) * * *
(4) If an employee requests leave because of a qualifying exigency on an intermittent or reduced schedule basis, an estimate of the frequency and duration of the qualifying exigency;
(5) If the qualifying exigency involves meeting with a third party, appropriate contact information for the individual or entity with whom the employee is meeting (such as the name, title, organization, address, telephone number, fax number, and email address) and a brief description of the purpose of the meeting; and
(6) If the qualifying exigency involves Rest and Recuperation leave, a copy of the military member's Rest and Recuperation orders, or other documentation issued by the military which indicates that the military member has been granted Rest and Recuperation leave, and the dates of the military member's Rest and Recuperation leave.
(c) DOL has developed an optional form (Form WH–384) for employees' use in obtaining a certification that meets FMLA's certification requirements. Form WH–384 may be obtained from local offices of the Wage and Hour Division or from the Internet at
19. Amend § 825.310 by:
a. adding paragraph (a)(5);
b. revising the first sentence of paragraph (b);
c. adding paragraph (b)(1)(v);
d. revising paragraph (b)(2);
e revising paragraph (b)(4);
f. re-designating current paragraph (c)(6) as (c)(7);
g. adding new paragraph (c)(6);
h. revising paragraph (d);
i. revising the citation in paragraph (e)(3) from § 825.122(j) to § 825.122(k);
j. revising paragraph (f) to read as follows:
(a) * * *
(5) Any health care provider as defined in § 825.125.
(b) If the authorized health care provider is unable to make certain military-related determinations outlined below, the authorized health care provider may rely on determinations from an authorized DOD representative (such as a DOD recovery care coordinator) or an authorized VA representative. * * *
(1) * * *
(v) A health care provider as defined in § 825.125.
(2) Whether the covered servicemember's injury or illness was incurred in the line of duty on active duty or, if not, whether the covered servicemember's injury or illness existed before the beginning of the servicemember's active duty and was aggravated by service in the line of duty on active duty;
(4) A statement or description of appropriate medical facts regarding the covered servicemember's health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave.
(i) In the case of a current member of the Armed Forces, such medical facts must include information on whether the injury or illness may render the covered servicemember medically unfit to perform the duties of the servicemember's office, grade, rank, or rating and whether the member is receiving medical treatment, recuperation, or therapy;
(ii) In the case of a covered veteran, such medical facts must include information on whether the veteran is receiving medical treatment, recuperation, or therapy for an injury or illness that is:
(A) The continuation of an injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember medically unfit to perform the duties of the servicemember's office, grade, rank, or rating; or
(B) A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50% or higher, and that such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave;
(C) A physical or mental condition that substantially impairs the covered veteran's ability to secure or follow a substantially gainful occupation by reason of a service-connected disability or disabilities, or would do so absent treatment.
(c) * * *
(6) Whether the covered servicemember is a veteran, the date of separation from military service, and whether the separation was other than dishonorable. The employer may require the employee to provide documentation issued by the military which indicates that the covered servicemember is a veteran, the date of separation, and that the separation is other than dishonorable. Where an employer requires such documentation, an employee may provide a copy of the veteran's Certificate of Release or Discharge from Active Duty issued by the U.S. Department of Defense (DD Form 214) or other proof of veteran status.
(d) DOL has developed an optional form (WH–385) for employees' use in obtaining certification that meets FMLA's certification requirements, which may be obtained from local offices of the Wage and Hour Division or on the Internet at
(e) * * *
(3) An employer may require an employee to provide confirmation of covered family relationship to the seriously injured or ill servicemember pursuant to § 825.122(k) when an employee supports his or her request for FMLA leave with a copy of an ITO or ITA.
(f) Where medical certification is requested by an employer, an employee may not be held liable for administrative delays in the issuance of military documents, despite the employee's diligent, good-faith efforts to obtain such documents.
20. Amend § 825.500 by:
a. revising paragraph (g) introductory text; and
b. adding new paragraph (h), to read as follows:
(g) Records and documents relating to certifications, recertifications or medical histories of employees or employees' family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files. If the Genetic Information Nondiscrimination Act of 2008 (GINA) is applicable, records and documents created for purposes of FMLA containing “family medical history” or “genetic information” as defined in GINA shall be maintained in accordance with the confidentiality requirements of Title II of GINA (
(h) Covered employers who employ eligible airline flight crew employees are required to maintain certain records “on file with the Secretary.” To comply with this requirement, such employers shall make, keep, and preserve records in accordance with the requirements of this section, and additional records as follows:
(1) Records and documents containing information specifying the applicable monthly guarantee with respect to each category of employee to whom such guarantee applies, including copies of any relevant collective bargaining agreements or employer policy documents; and
(2) A record of hours scheduled for airline flight crew employees on non-reserve status.
For purposes of this part:
(1) For the individual airline flight crew employee who is not on reserve status (line holder), the minimum number of hours for which an employer has agreed to
(2) For an airline flight crew employee who is on reserve status, the number of hours for which an employer has agreed to
(1) Is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or
(2) Results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of Title 10 of the United States Code, chapter 15 of Title 10 of the United States Code, or any other provision of law during a war or during a national emergency declared by the President or Congress.
(1)
(i) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (
(ii) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.
(iii) The requirement in paragraphs (1)(i) and (ii) of this definition for treatment by a health care provider means an in-person visit to a health care provider. The first in-person treatment visit must take place within seven days of the first day of incapacity.
(iv) Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider.
(v) The term “extenuating circumstances” in paragraph (1)(i) means circumstances beyond the
(2)
(3)
(i) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
(ii) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(iii) May cause episodic rather than a continuing period of incapacity (
(4)
(5)
(i) Restorative surgery after an accident or other injury; or
(ii) A condition that would likely result in a period of incapacity of more than three consecutive full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis).
(6) Absences attributable to incapacity under paragraphs (2) or (3) of this definition qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee's health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.
(1) In the case of a member of the Regular Armed Forces,
(2) In the case of a member of the reserve components of the Armed Forces, duty under a call or order to active duty (or notification of an impending call or order to active duty) during the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of Title 10, United States Code.
(1) A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness, or
(2) A covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness.
(1) An employee who has been employed for a total of at least 12 months by the employer on the date on which any FMLA leave is to commence, except that an employer need not consider any period of previous employment that occurred more than seven years before the date of the most recent hiring of the employee,
(i) The break in service is occasioned by the fulfillment of the employee's National Guard or Reserve military service obligation (the time served performing the military service must be also counted in determining whether the employee has been employed for at least 12 months by the employer, but this section does not provide any greater entitlement to the employee than would be available under the Uniformed Services Employment and Reemployment Rights Act (USERRA)); or
(ii) A written agreement, including a collective bargaining agreement, exists concerning the employer's intention to rehire the employee after the break in service (
(2) Who, on the date on which any FMLA leave is to commence, has been employed for at least 1,250 hours of service with such employer during the previous 12-month period,
(i) An employee returning from fulfilling his or her National Guard or Reserve military obligation shall be credited with the hours-of-service that would have been performed
(ii) To determine the hours that would have been worked during the period of military service, the employee's pre-service work schedule can generally be used for calculations;
(iii) An airline flight crew employee will be considered to meet the hours of service requirement if in the previous 12 months the employee has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours (not counting personal commute time, or vacation, medical or sick leave).
(3) Who is employed in any State of the United States, the District of Columbia or any Territories or possession of the United States.
(4) Excludes any Federal officer or employee covered under subchapter V of chapter 63 of title 5, United States Code.
(5) Excludes any employee of the United States House of Representatives or the United States Senate covered by the Congressional Accountability Act of 1995, 2 U.S.C. 1301.
(6) Excludes any employee who is employed at a worksite at which the employer employs fewer than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is also fewer than 50.
(7) Excludes any employee employed in any country other than the United States or any Territory or possession of the United States.
(1) The term “employee” means any individual employed by an employer;
(2) In the case of an individual employed by a public agency, “employee” means—
(i) Any individual employed by the Government of the United States—
(A) As a civilian in the military departments (as defined in section 102 of Title 5, United States Code),
(B) In any executive agency (as defined in section 105 of Title 5, United States Code), excluding any Federal officer or employee covered under subchapter V of chapter 63 of Title 5, United States Code,
(C) In any unit of the legislative or judicial branch of the Government which has positions in the competitive service, excluding any employee of the United States House of Representatives or the United States Senate who is covered by the Congressional Accountability Act of 1995,
(D) In a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces, or
(ii) Any individual employed by the United States Postal Service or the Postal Regulatory Commission; and
(iii) Any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual—
(A) Who is not subject to the civil service laws of the State, political subdivision, or agency which employs the employee; and
(B) Who—
(
(
(
(
(
(1) Any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer;
(2) Any successor in interest of an employer; and
(3) Any public agency.
(1) No contributions are made by the employer;
(2) Participation in the program is completely voluntary for employees;
(3) The sole functions of the employer with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees, to collect premiums through payroll deductions and to remit them to the insurer;
(4) The employer receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deduction; and
(5) The premium charged with respect to such coverage does not increase in the event the employment relationship terminates.
(1) The Act defines “health care provider” as:
(i) A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or
(ii) Any other person determined by the Secretary to be capable of providing health care services.
(2) Others “capable of providing health care services” include only:
(i) Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law;
(ii) Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;
(iii) Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts. Where an employee or family member is receiving treatment from a Christian Science practitioner, an employee may not object to any requirement from an employer that the employee or family member submit to examination (though not treatment) to obtain a second or third certification from a health care provider other than a Christian Science practitioner except as otherwise provided under applicable State or local law or collective bargaining agreement.
(iv) Any health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
(v) A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.
(3) The phrase “authorized to practice in the State” as used in this section means that the provider must be authorized to diagnose and treat physical or mental health conditions.
(1) In the case of a current member of the Armed Forces, including a member of the National Guard or Reserves, an injury or illness that was incurred by the covered servicemember in the line of duty on active duty in the Armed Forces or that existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the Armed Forces and that may render the servicemember medically unfit to perform the duties of the member's office, grade, rank, or rating; and
(2) In the case of a covered veteran,
(i) A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember's office, grade, rank, or rating; or
(ii) A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50% or higher, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or
(iii) A physical or mental condition that substantially impairs the covered veteran's ability to secure or follow a substantially gainful occupation by reason of a service-connected disability or disabilities, or would do so absent treatment.
22. Remove and Reserve Appendices B through E, and G and H to part 825.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations under chapter 4 of Subtitle A (sections 1471 through 1474) of the Internal Revenue Code of 1986 (Code) regarding information reporting by foreign financial institutions (FFIs) with respect to U.S. accounts and withholding on certain payments to FFIs and other foreign entities. These regulations affect persons making certain U.S.-related payments to FFIs and other foreign entities and payments by FFIs to other persons. This document also provides a notice of a public hearing on these proposed regulations.
Written or electronic comments must be received by April 30, 2012. Requests to speak and outlines of topics to be discussed at the public hearing scheduled for May 15, 2012, at 10 a.m. must be received by May 1, 2012.
Send submissions to: CC:PA:LPD:PR (REG–121647–10), room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG–121647–10), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, John Sweeney, (202) 622–3840; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Oluwafunmilayo Taylor,
This document contains proposed amendments to 26 CFR part 1 under sections 1471 through 1474 of the Code. On March 18, 2010, the Hiring Incentives to Restore Employment Act of 2010, Public Law 111–147 (the HIRE Act), added chapter 4 of Subtitle A (chapter 4), comprised of sections 1471 through 1474, to the Code. These provisions were originally introduced as part of the Foreign Account Tax Compliance Act of 2009 (H.R. 3933), commonly referred to as FATCA.
Chapter 4 generally requires foreign financial institutions (FFIs) to provide information to the Internal Revenue Service (IRS) regarding their United States accounts (U.S. accounts). Chapter 4 also requires certain non-financial foreign entities (NFFEs) to provide information on their substantial United States owners (substantial U.S. owners) to withholding agents. Chapter 4 imposes a withholding tax on certain payments to FFIs and NFFEs that fail to comply with their obligations.
Since the enactment of chapter 4, the Department of the Treasury (Treasury Department) and the IRS have issued preliminary guidance on the implementation of chapter 4. See Notice 2010–60, 2010–37 I.R.B. 329, Notice 2011–34, 2011–19 I.R.B. 765, and Notice 2011–53, 2011–32 I.R.B. 124 (collectively, the FATCA Notices). See § 601.601(d)(2)(ii)(b). The Treasury Department and the IRS received numerous comments in response to the FATCA Notices, as well as on chapter 4 more generally. These comments were carefully considered in developing these proposed regulations.
Like the tax systems in many countries, the U.S. Federal income tax system relies on voluntary compliance. That is, taxpayers are expected to compute, report, and remit their Federal income tax liability each year. Also, as is the case in many countries, third-party payors of certain items are required to report these amounts to the IRS. Such reporting serves as an important and long-standing check on voluntary compliance.
The reporting and diligence rules applicable to third-party payors are comprehensive. In particular, chapter 61 of subtitle A of the Code (chapter 61), comprised in relevant part of sections 6041 through 6049, requires certain payors to document their third-party payees and report certain types of payments (for example interest, dividends, and gross proceeds from broker transactions) made to those payees. These rules are subject to exceptions for certain non-U.S. payors (including many FFIs), certain payments of foreign source income, and certain payments to foreign persons. In addition, chapter 3 of subtitle A of the Code (chapter 3), comprised of sections 1441 through 1464, generally requires withholding agents to document their payees and to withhold and report with respect to certain U.S. source payments made to foreign persons. This third-party information reporting assists taxpayers in correctly computing and reporting their tax liabilities, increases compliance with tax obligations, reduces the incidence of and opportunities for tax evasion, and thus helps to maintain the fairness of the U.S. Federal income tax system.
As a result of recent improvements in international communications and the associated globalization of the world economy, U.S. taxpayers' investments have become increasingly global in scope. FFIs now provide a significant proportion of the investment opportunities for, and act as intermediaries with respect to the investments of, U.S. taxpayers. Like U.S. financial institutions, FFIs are generally in the best position to identify and report with respect to their U.S. customers. Absent such reporting by FFIs, some U.S. taxpayers may attempt to evade U.S. tax by hiding money in offshore accounts. To prevent this abuse of the voluntary compliance system and address the use of offshore accounts to facilitate tax evasion, it is essential in today's global investment climate that reporting be available with respect to both the onshore and offshore accounts of U.S. taxpayers. This information reporting strengthens the integrity of the voluntary compliance system by placing U.S. taxpayers that have access to international investment opportunities on an equal footing with U.S. taxpayers that do not have such access or otherwise choose to invest within the United States.
To this end, chapter 4 extends the scope of the U.S. information reporting regime to include FFIs that maintain U.S. accounts. Chapter 4 also imposes increased disclosure obligations on certain NFFEs that present a high risk of U.S. tax avoidance. In addition, chapter 4 provides for withholding on FFIs and NFFEs that do not comply with the reporting and other requirements of chapter 4. This withholding generally may be credited against the U.S. income tax liability of the beneficial owner of the payment to which the withholding is attributable, and generally may be
Recognizing that there are costs associated with the implementation of any new reporting regime, the Treasury Department and the IRS have considered carefully all comments received and have met extensively with stakeholders to develop an implementation approach that achieves an appropriate balance between fulfilling the important policy objectives of chapter 4 and minimizing the burdens imposed on stakeholders. Further to this end, the Treasury Department and the IRS will continue to engage with interested stakeholders, including foreign governments, in connection with finalizing these proposed regulations regarding the efficient and effective implementation of chapter 4. In particular, to minimize burden, facilitate coordination with local law restrictions, and improve collaboration in the battle against offshore tax evasion, the Treasury Department and the IRS are considering, in consultation with foreign governments, an alternative approach to implementation whereby an FFI could satisfy the reporting requirements of chapter 4 if: (1) the FFI collects the information required under chapter 4 and reports this information to its residence country government; and (2) the residence country government enters into an agreement to report this information annually to the IRS, as required by chapter 4, pursuant to an income tax treaty, tax information exchange agreement, or other agreement with the United States. Moreover, consistent with the policies underlying chapter 4, the Treasury Department and the IRS remain committed to working cooperatively with foreign jurisdictions on multilateral efforts to improve transparency and information exchange on a global basis.
Section 1471(a) requires any withholding agent to withhold 30 percent of any withholdable payment to an FFI that does not meet the requirements of section 1471(b). A withholdable payment is defined in section 1473(1) to mean, subject to certain exceptions: (i) any payment of interest, dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, and other fixed or determinable annual or periodical gains, profits, and income (FDAP income), if such payment is from sources within the United States; and (ii) any gross proceeds from the sale or other disposition of any property of a type which can produce interest or dividends from sources within the United States.
An FFI meets the requirements of section 1471(b) if it either enters into an agreement (an FFI agreement) with the IRS under section 1471(b)(1) to perform certain obligations or meets requirements prescribed by the Treasury Department and the IRS to be deemed to comply with the requirements of section 1471(b). An FFI is defined as any financial institution that is a foreign entity, other than a financial institution organized under the laws of a possession of the United States (generally referred to as a U.S. territory in this preamble). For this purpose, section 1471(d)(5) defines a financial institution as, except to the extent provided by the Secretary, any entity that: (i) Accepts deposits in the ordinary course of a banking or similar business; (ii) as a substantial portion of its business, holds financial assets for the account of others; or (iii) is engaged (or holding itself out as being engaged) primarily in the business of investing, reinvesting, or trading in securities, partnership interests, commodities, or any interest in such securities, partnership interests, or commodities.
Section 1471(b)(1)(A) and (B) requires an FFI that enters into an FFI agreement (a participating FFI) to identify its U.S. accounts and comply with verification and due diligence procedures prescribed by the Secretary. A U.S. account is defined under section 1471(d)(1) as any financial account held by one or more specified United States persons, as defined in section 1473(3), (specified U.S. persons) or United States owned foreign entities (U.S. owned foreign entities), subject to certain exceptions. Section 1471(d)(2) defines a financial account to mean, except as otherwise provided by the Secretary, any depository account, any custodial account, and any equity or debt interest in an FFI, other than interests that are regularly traded on an established securities market. A U.S. owned foreign entity is defined in section 1471(d)(3) as any foreign entity that has one or more substantial U.S. owners (as defined in section 1473(2)).
A participating FFI is required under section 1471(b)(1)(C) and (E) to report certain information on an annual basis to the IRS with respect to each U.S. account and to comply with requests for additional information by the Secretary with respect to any U.S. account. The information that must be reported with respect to each U.S. account includes: (i) The name, address, and taxpayer identifying number (TIN) of each account holder who is a specified U.S. person (or, in the case of an account holder that is a U.S. owned foreign entity, the name, address, and TIN of each specified U.S. person that is a substantial U.S. owner of such entity); (ii) the account number; (iii) the account balance or value; and (iv) except to the extent provided by the Secretary, the gross receipts and gross withdrawals or payments from the account (determined for such period and in such manner as the Secretary may provide). In lieu of reporting account balance or value and reporting gross receipts and gross withdrawals or payments, a participating FFI may, subject to conditions provided by the Secretary, elect under section 1471(c)(2) to report the information required under sections 6041, 6042, 6045, and 6049 as if such institution were a U.S. person and each holder of such U.S. account that is a specified U.S. person or U.S. owned foreign entity were a natural person and citizen of the United States. If foreign law would prevent the FFI from reporting the required information absent a waiver from the account holder, and the account holder fails to provide a waiver within a reasonable period of time, the FFI is required under section 1471(b)(1)(F) to close the account.
Section 1471(b)(1)(D)(i) requires a participating FFI to withhold 30 percent of any passthru payment to a recalcitrant account holder or to an FFI that does not meet the requirements of section 1471(b) (nonparticipating FFI). A passthru payment is defined in section 1471(d)(7) as any withholdable payment or other payment to the extent attributable to a withholdable payment. Section 1471(d)(6) defines a recalcitrant account holder as any account holder that fails to provide the information required to determine whether the account is a U.S. account, or the information required to be reported by the FFI, or that fails to provide a waiver of a foreign law that would prevent reporting. A participating FFI may, subject to such requirements as the Secretary may provide, elect under section 1471(b)(3) not to withhold on passthru payments, and instead be subject to withholding on payments it receives, to the extent those payments are allocable to recalcitrant account
Section 1471(e) provides that the requirements of the FFI agreement shall apply to the U.S. accounts of the participating FFI and, except as otherwise provided by the Secretary, to the U.S. accounts of each other FFI that is a member of the same expanded affiliated group, as defined in section 1471(e)(2).
Section 1471(f) exempts from withholding under section 1471(a) certain payments beneficially owned by certain persons, including any foreign government, international organization, foreign central bank of issue, or any other class of persons identified by the Secretary as posing a low risk of tax evasion.
Section 1472(a) requires a withholding agent to withhold 30 percent of any withholdable payment to an NFFE if the payment is beneficially owned by the NFFE or another NFFE, unless the requirements of section 1472(b) are met with respect to the beneficial owner of the payment. Section 1472(d) defines an NFFE as any foreign entity that is not a financial institution as defined in section 1471(d)(5).
The requirements of section 1472(b) are met with respect to the beneficial owner of a payment if: (i) The beneficial owner or payee provides the withholding agent with either a certification that such beneficial owner does not have any substantial U.S. owners, or the name, address, and TIN of each substantial U.S. owner; (ii) the withholding agent does not know or have reason to know that any information provided by the beneficial owner or payee is incorrect; and (iii) the withholding agent reports the information provided to the Secretary.
Section 1472(c)(1) provides that withholding under section 1472(a) does not apply to payments beneficially owned by certain classes of persons, including any class of persons identified by the Secretary. In addition, section 1472(c)(2) provides that withholding under section 1472(a) does not apply to any class of payment identified by the Secretary for purposes of section 1472(c) as posing a low risk of tax evasion.
Section 1474(a) provides that every person required to withhold and deduct any tax under chapter 4 is made liable for such tax and is indemnified against the claims and demands of any person for the amount of any payments made in accordance with the provisions of chapter 4. In general, the beneficial owner of a payment is entitled to a refund for any overpayment of tax actually due under other provisions of the Code. However, with respect to any tax properly deducted and withheld under section 1471 from a payment beneficially owned by an FFI, section 1474(b)(2) provides that the FFI is not entitled to a credit or refund, except to the extent required by a treaty obligation of the United States (and, if a credit or refund is required by a treaty obligation of the United States, no interest shall be allowed or paid with respect to such credit or refund). In addition, section 1474(b)(3) provides that no credit or refund shall be allowed or paid with respect to any tax properly deducted and withheld under chapter 4 unless the beneficial owner of the payment provides the Secretary with such information as the Secretary may require to determine whether such beneficial owner is a U.S. owned foreign entity and the identity of any substantial U.S. owners of such entity.
Section 1474(c) provides that information provided under chapter 4 is confidential under rules similar to section 3406(f), except that the identity of an FFI that meets the requirements of section 1471(b) is not treated as return information for purposes of section 6103.
Section 1474(d) provides that the Secretary shall provide for the coordination of chapter 4 with other withholding provisions under the Code, including providing for the proper crediting of amounts deducted and withheld under chapter 4 against amounts required to be deducted and withheld under other provisions.
Section 1474(f) provides that the Secretary shall prescribe such regulations or other guidance as may be necessary or appropriate to carry out the purposes of, and prevent the avoidance of, chapter 4.
On August 29, 2010, the Treasury Department and the IRS released Notice 2010–60, which provided preliminary guidance regarding the implementation of chapter 4. In particular, Notice 2010–60: (i) Defined the scope of certain grandfathered obligations; (ii) provided initial guidance on what entities would be considered FFIs and NFFEs; (iii) set forth the account due diligence procedures for FFIs and U.S. financial institutions with respect to new and preexisting accounts held by individuals and entities; (iv) provided initial guidance on the information required to be reported by FFIs with respect to their U.S. accounts and recalcitrant account holders; and (v) requested further comments on a number of issues.
On April 8, 2011, the Treasury Department and the IRS released Notice 2011–34, which modified and supplemented the guidance in Notice 2010–60. Specifically, Notice 2011–34: (i) Modified the account due diligence procedures for preexisting accounts held by individuals; (ii) provided initial guidance regarding the definition and identification of passthru payments; (iii) provided guidance on initial categories of FFIs that would be deemed compliant with the requirements of section 1471(b); (iv) modified and supplemented the guidance in Notice 2010–60 regarding the reporting required of FFIs with respect to their U.S. accounts; (v) provided initial guidance regarding the interaction of the qualified intermediary (QI) regime and chapter 4; and (vi) provided initial guidance regarding the application of section 1471(b) to expanded affiliated groups.
On July 14, 2011, the Treasury Department and the IRS released Notice 2011–53, which provides for phased implementation of certain requirements under chapter 4, and discusses certain substantive and procedural matters.
These proposed regulations seek to implement the chapter 4 reporting and withholding regime efficiently and effectively by establishing adequate lead times to allow system development and by minimizing the overall compliance burdens in a manner that is consistent with chapter 4's enforcement goals. To accomplish this goal, the proposed regulations incorporate the guidance described in the FATCA Notices and, in response to comments and further consideration, revise and refine the rules discussed therein. The proposed regulations also provide guidance on topics that were not addressed in the FATCA Notices.
The proposed regulations take into account the numerous helpful comments received, provide extensive guidance on all major aspects of the implementation of chapter 4, and, in response to requests received by the Treasury Department and the IRS, provide detail and certainty on the scope of obligations required under chapter 4. To facilitate review of this detailed operational guidance, the following section provides a summary of the most significant modifications and additions the proposed regulations
Significant modifications and additions to the guidance in the FATCA Notices include the following:
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The proposed regulations provide a detailed explanation of how an FFI can satisfy the obligations imposed by the statutory provisions of chapter 4 and thus avoid withholding. A summary of the proposed rules follows.
Chapter 4 requires FFIs to identify U.S. accounts, which include both accounts held by U.S. individuals and certain U.S. entities, and accounts held by foreign entities with substantial U.S. owners (generally, owners with a greater than ten percent interest). To provide certainty, and minimize costs and burdens in a manner that is consistent with policy objectives, the proposed regulations outline the due diligence required to be undertaken by FFIs to identify U.S. accounts. For this purpose, the proposed regulations distinguish between the diligence expected with respect to individual accounts and entity accounts and between preexisting accounts and new accounts. It is intended that FFIs that adhere to the diligence guidelines outlined in the proposed regulations will be treated as compliant with the requirement to identify U.S. accounts and will not be held to a strict liability standard.
• Accounts with a balance or value that does not exceed $50,000 are exempt from review, unless the FFI elects otherwise.
• Certain cash value insurance and annuity contracts held by individual account holders that are preexisting accounts with a value or balance of $250,000 or less are exempt from review, unless the FFI elects otherwise.
• Accounts that are offshore obligations with a balance or value that exceeds $50,000 ($250,000 for a cash value insurance or annuity contract) but does not exceed $1,000,000 are subject only to review of electronically searchable data for indicia of U.S. status. For this purpose, U.S. indicia include: (1) Identification of an account holder as a U.S. person; (2) a U.S. place of birth; (3) a U.S. address; (4) a U.S. telephone number; (5) standing instructions to transfer funds to an account maintained in the United States; (6) a power of attorney or signatory authority granted to a person with a U.S. address; or (7) a U.S. “in-care-of” or “hold mail” address that is the sole address the FFI has identified for the account holder. No further search of records or contact with the account holder is required unless U.S. indicia are found through the electronic search. The $1,000,000 threshold replaces the $500,000 threshold and the private banking test proposed in the FATCA Notices. Accordingly, FFIs will not be required to distinguish between private banking accounts and other accounts.
• Accounts with a balance that exceeds $1,000,000 are subject to review of electronic and non-electronic files for U.S. indicia, including an inquiry of the actual knowledge of any relationship manager associated with the account. To minimize burden, review of non-electronic files is limited to the current customer files and certain other documents, and is required only to the extent that the electronically searchable files do not contain sufficient information about the account holder.
For individual accounts opened after the effective date of an FFI's agreement, the FFI will be required to review the information provided at the opening of the account, including identification and any documentation collected under AML/KYC rules. If U.S. indicia are identified as part of that review, the FFI must obtain additional documentation or treat the account as held by a recalcitrant account holder. Accordingly, FFIs will generally not need to make significant changes to the information collected during the account opening process in order to identify U.S, accounts, except to the extent that U.S. indicia are identified.
• Preexisting entity accounts with account balances of $250,000 or less are exempt from review until the account balance exceeds $1,000,000.
• For remaining preexisting entity accounts, FFIs can generally rely on AML/KYC records and other existing account information to determine whether the entity is an FFI, is a U.S. person, is excepted from the requirement to document its substantial U.S. owners (for example, because it is engaged in a nonfinancial trade or business), or is a passive investment entity (referred to in the regulations as a “passive NFFE”).
○ In the case of preexisting accounts of passive investment entities with account balances that do not exceed $1,000,000, FFIs may generally rely on information collected for AML/KYC due diligence purposes to identify substantial U.S. owners.
○ In the case of preexisting entity accounts of passive investment entities with account balances that exceed $1,000,000, FFIs must obtain information regarding all substantial U.S. owners or a certification that the entity does not have substantial U.S. owners.
• The following new entity accounts are exempt from documentation of substantial U.S. owners:
○ Accounts of another FFI (other than an owner-documented FFI for which the participating FFI has agreed to perform reporting); and
○ Accounts of an entity engaged in an active nonfinancial trade or business or otherwise excepted from documentation requirements.
• With respect to the remaining entities (essentially, passive investment entities), FFIs will be required to determine whether the entity has any substantial U.S. owners upon opening a new account, generally by obtaining a certification from the account holder.
The statute grants the Treasury Department and the IRS regulatory authority to identify certain FFIs as “deemed-compliant” FFIs that may avoid withholding under chapter 4 without entering into an FFI agreement. The FATCA Notices identified certain types of FFIs that would be deemed to be compliant with chapter 4. The proposed regulations implement the exclusions provided in the FATCA Notices, and expand the categories of deemed-compliant FFIs to include certain banks and investment funds conducting business only with local clients, low-risk entities, or participating FFIs, subject to restrictions designed to prevent the FFIs from being used for U.S. tax evasion. In addition, the proposed regulations expand the category of retirement plans that are treated as posing a low risk of tax evasion and thus are excepted from the chapter 4 requirements.
The proposed regulations provide that, until January 1, 2016, a nonparticipating FFI or branch that is subject to foreign laws that prohibit that FFI or branch from complying with the requirements of section 1471(b) will not disqualify an otherwise participating FFI group with which it is affiliated, as long as the FFI or branch complies with the due diligence procedures required of participating FFIs for identifying U.S. accounts and maintains records of the account holder documentation it collects. These “limited FFI affiliates” and “limited branches” will be subject to withholding upon receipt of withholdable payments.
The proposed regulations phase in the reporting obligations of FFIs as follows:
• For reporting in 2014 and 2015 (with respect to calendar years 2013 and 2014), participating FFIs are required to report only name, address, TIN, account number, and account balance with respect to U.S. accounts.
• Beginning with reporting in 2016 (with respect to calendar year 2015), in addition to the aforementioned information, income associated with U.S. accounts must be reported.
• Beginning with reporting in 2017 (with respect to calendar year 2016), full reporting, including information on the gross proceeds from broker transactions, will be required.
The proposed regulations phase in the passthru payment regime in two steps.
• Beginning on January 1, 2014, FFIs, like U.S. withholding agents, will be required to withhold on passthru payments that are withholdable payments. FFIs will also be required to report annually on the aggregate amount of certain payments to each nonparticipating FFI for the 2015 and 2016 calendar years.
• Beginning no earlier than January 1, 2017, the scope of passthru payments will be expanded beyond withholdable payments and FFIs will be required to withhold on such payments pursuant to and in accordance with future guidance. In the case of jurisdictions that enter into agreements to facilitate FATCA implementation, Treasury and IRS will work with the governments of such jurisdictions to develop practical alternative approaches to achieving the policy objectives of passthru payment withholding.
The statute provides that, to the extent withholding on a payment under chapter 4 exceeds the beneficial owner's underlying U.S. tax liability, the beneficial owner may claim a refund for the overwithheld amount. No refund is available, however, for payments beneficially owned by nonparticipating FFIs, except to the extent required under an income tax treaty. In addition, the proposed regulations provide that an NFFE claiming a refund (other than a refund attributable to a reduced rate of tax under a tax treaty obligation of the United States) must provide information regarding the NFFE's substantial U.S. owners, or certification that the NFFE does not have substantial U.S. owners. The Treasury Department and the IRS intend to issue future guidance regarding the substantiation requirements necessary for claiming a refund.
Proposed § 1.1471–1(a) describes the purpose and scope of the proposed regulations under sections 1471 through 1474. Paragraph (b) provides definitions of terms relevant to the provisions of chapter 4 and the regulations thereunder. In order to maintain consistency with the structure of the statutory provisions of chapter 4, certain terms are defined in other sections of the regulations. For example, § 1.1471–5 contains certain definitions that apply only for purposes of section 1471 and the regulations thereunder, and § 1.1473–1 contains definitions of certain terms contained in section 1473. In order to facilitate review of the regulations, § 1.1471–1(b) contains specific cross-references to the sections in which each such term is defined. Many of the relevant terms are also used in chapters 3 and 61, and the proposed regulations in most cases adopt the terms and definitions provided in the regulations under those chapters. In the instances in which a different definition is used for purposes of the proposed regulations, the Treasury Department and the IRS generally intend to revise the definitions provided in the regulations under chapter 3 or 61 to conform to the chapter 4 definitions. It is expected that these conforming changes, and the other changes to chapter 3 or 61 guidance needed to conform to chapter 4, as noted in this preamble, will become effective on January 1, 2014, when the withholding and reporting obligations under chapter 4 begin to be phased in.
Under the proposed regulations, the rules relating to the requirement to withhold U.S. tax on certain payments
Paragraph (a)(1) of § 1.1471–2 provides the general rule that, absent an exception, a withholding agent must withhold under section 1471(a) on a withholdable payment made after December 31, 2013, to an FFI regardless of whether the FFI receives the withholdable payment as a beneficial owner or intermediary. Paragraph (a)(2) provides special withholding rules, including a requirement for withholding agents to withhold with respect to payments of U.S. source FDAP to a participating FFI that is not a QI and is acting as an intermediary or that is a nonwithholding flow-through entity for chapter 3 purposes, unless the participating FFI provides the documentation necessary to determine the portion of the payment for which no withholding is required under chapter 4. A participating FFI that acts as an intermediary or that is a nonwithholding flow-through entity and that provides a valid withholding certificate and all required documentation is not required to withhold or report such payment under chapter 4 unless it knows or has reason to know that the withholding agent failed to withhold the correct amount or failed to report the payment correctly. These rules are intended to reduce instances in which overwithholding occurs because a withholding agent applies withholding under chapter 3 to a withholdable payment that is also subject to withholding by the participating FFI with respect to its own account holders under chapter 4.
Paragraph (a)(2)(iii) describes the circumstance in which a participating FFI will be permitted to make an election under section 1471(b)(3) to be withheld upon rather than to withhold on a passthru payment. Generally, a participating FFI that is a QI may make an election under section 1471(b)(3) to be withheld upon rather than to withhold only with respect to a payment that is U.S. source FDAP income and only if the participating FFI has not assumed primary withholding responsibility under chapter 3. A participating FFI that is a QI and that does not make the election under section 1473(b)(3) with respect to U.S. source FDAP income must assume primary withholding responsibility under chapter 3. The election under section 1471(b)(3) is not extended to withholding foreign partnerships (WPs) or withholding foreign trusts (WTs) because these entities are generally required to assume chapter 3 withholding responsibilities under their respective agreements with respect to their partners, beneficiaries, or owners, and the Treasury Department and the IRS intend to expand their responsibilities to assume chapter 4 withholding to coordinate their withholding requirements. Similarly, a foreign branch of a U.S. financial institution that is a QI not assuming primary withholding responsibility under chapter 3 must provide a withholding agent with the documentation necessary to perform withholding under chapter 4 with respect to payments of U.S. source FDAP income.
Paragraph (a)(2)(iv) describes the obligation of a financial institution organized under the laws of one of the U.S. territories (territory financial institution) to withhold on withholdable payments. Similar to the rules provided in chapter 3, a territory financial institution that acts as an intermediary with respect to a withholdable payment may agree to be treated similarly to a U.S. financial institution with respect to withholding and reporting under chapter 4. If a territory financial institution is a flow-through entity or acts as an intermediary with respect to a withholdable payment, the territory financial institution does not have an obligation to withhold under chapter 4, if it has provided its withholding agent with certain information to allow the withholding agent to withhold.
Paragraph (a)(2)(v) provides that when multiple withholding agents that are brokers are involved in effecting a sale, each broker must determine whether it is required to withhold on its payment of gross proceeds by reference to the status of its payee for chapter 4 purposes.
This paragraph also provides that for a “delivery versus payment” transaction, “cash on delivery” transaction, or other similar account or transaction, each broker that pays the gross proceeds is a withholding agent with respect to the payment.
Paragraph (a)(3) coordinates the withholding requirements of sections 1471(a) and 1471(b) with respect to participating FFIs that make withholdable payments to account holders, and generally provides that a participating FFI that complies with the withholding requirements of section 1471(b), as described in § 1.1471–4(b) and its FFI agreement, will be deemed to satisfy its withholding obligations with respect to withholdable payments under section 1471(a).
Paragraph (a)(4) describes payments for which no withholding is required, including payments for which the withholding agent lacks control, custody, or knowledge, and certain payments to participating FFIs and territory financial institutions. Paragraph (a)(4) also sets forth a transitional rule that exempts from withholding under section 1471(a) certain payments made prior to January 1, 2015, with respect to a preexisting account for which the withholding agent does not have documentation indicating the payee's status as a nonparticipating FFI, unless the payee is a prima facie FFI. The rules for determining if a payee is a prima facie FFI require the withholding agent to search its electronic data for certain indications that the payee is an FFI. In addition, paragraph (a)(4) provides for certain exceptions to withholding for payments made to certain classes of payees.
Paragraph (b) of § 1.1471–2 describes certain obligations the payments on which will be exempt from withholding under chapter 4. Section 501(d)(2) of the HIRE Act provides that no amount shall be deducted or withheld from any payment under any obligation outstanding on March 18, 2012, (two years after the date of enactment of the HIRE Act) or from the gross proceeds from any disposition of such an obligation. Paragraph (b)(1) provides that withholding is not required with respect to any payment under a grandfathered obligation or from the gross proceeds from any disposition of
Paragraphs (b)(2)(iii) and (iv) provide that the determination of whether an obligation is outstanding on January 1, 2013, depends upon the type of obligation. A debt instrument is outstanding on January 1, 2013, if it has an issue date, as determined under U.S. tax law, before January 1, 2013. A significant modification under § 1.1001–3 will result in the obligation being treated as newly issued as of the date of the significant modification. An obligation that is not a debt instrument is outstanding on January 1, 2013, if a legally binding agreement establishing the obligation was executed before January 1, 2013. A material modification of the obligation will result in the obligation being treated as newly issued or executed as of the effective date of such modification, and whether (and when) a material modification has occurred will be determined based upon all relevant facts and circumstances. Paragraph (b)(3) describes special rules to determine when a payment is made under a grandfathered obligation in the case of a flow-through entity with respect to a partner, beneficiary, or owner in such entity. See section XIX.G of this preamble for a request for comments regarding a potential grandfather status for certain investment vehicles.
Paragraph (a) of § 1.1471–3 sets forth the rules for determining the payee for chapter 4 purposes and the documentation requirements to establish a payee's chapter 4 status. These rules generally follow the rules under § 1.1441–1(b)(2) for determining the payee of a payment subject to withholding or reporting for chapter 3 purposes, but are modified in several ways, including to account for the requirement of withholding agents to determine an FFI's status for chapter 4 purposes and to determine whether an NFFE that is a flow-through entity is an active NFFE under § 1.1472–1(c)(1)(v). The Treasury Department and the IRS intend to revise Forms W–8 and W–9 as necessary to permit a payee to establish its status for both chapters 3 and 4 on one form.
Paragraph (c) of § 1.1471–3 provides rules for when a withholding agent may reliably associate a withholdable payment with valid documentation. Paragraph (c)(2) sets forth the documentation requirements for payments made through an intermediary or flow-through entity that is not the payee. Paragraph (c)(3) provides the standards for withholding certificates, written statements (in lieu of withholding certificates), withholding statements, and documentary evidence; describes a withholding agent's responsibilities with respect to changes in circumstances and documenting payees after payments are made; allows for the electronic transmission of withholding certificates (including by facsimile); and allows a withholding agent to continue to accept a prior version of the withholding certificate for six months after an IRS revision of the withholding certificate (based on the revision date shown on the updated withholding certificate).
Paragraph (d) of § 1.1471–3 provides the general documentation requirements to establish a payee's chapter 4 status for determining whether withholding applies under section 1471 or 1472. Paragraph (d) also sets forth the specific documentation requirements that must be met in order to treat a payee as having a particular chapter 4 status, and provides certain exceptions and special rules for payees that hold offshore and preexisting accounts. Consistent with the rules for documentation of offshore accounts contained in § 1.6049–5(c)(4), paragraph (d) allows a withholding agent that makes a payment to an account that is an offshore obligation to rely on documentary evidence, in certain cases supplemented by a written statement, to establish the payee's chapter 4 status in lieu of obtaining a withholding certificate. To minimize the burden on withholding agents to collect new documentation for preexisting accounts, paragraph (d) provides that for withholdable payments made prior to January 1, 2017, with respect to a preexisting account, a withholding agent may treat a payee as a participating FFI or a registered deemed-compliant FFI if it has a valid withholding certificate establishing the payee's foreign status and the withholding agent has verified the payee's FFI–EIN (provided by the payee either orally or in writing) on the IRS's published FFI list. With respect to preexisting accounts held by passive NFFEs with a balance or value of $1,000,000 or less, paragraph (d)(11)(vi)(D)(
Paragraph (e) sets forth the standards of knowledge for when a withholding agent knows or has reason to know that a withholding certificate is unreliable or incorrect, and modifies the standards set forth in chapter 3 for a withholding agent to determine the foreign status of a payee by adding a telephone number in the United States and a U.S. place of birth as reasons to know that a withholding certificate establishing foreign status is unreliable or incorrect, unless additional documentation of foreign status is obtained. The Treasury Department and the IRS intend to modify the chapter 3 rules regarding standards of knowledge to conform to these requirements. Paragraph (e) also requires a withholding agent to review the IRS's published FFI list and to check annually to confirm a payee's claim to be a participating FFI or registered deemed-compliant FFI.
Paragraph (f) of § 1.1471–3 sets forth presumption rules for determining the payee's chapter 4 status in the absence of documentation or when documentation is unreliable or incorrect. The presumption rules set forth in paragraph (f) for purposes of chapter 4 differ from the presumption rules of chapters 3 and 61 because the rules in paragraph (f) require a withholding agent to presume that certain entities that are treated as exempt recipients under § 1.6049–4(c)(1)(ii) and for which reliable documentation is not obtained are foreign persons. The Treasury Department and the IRS intend to make a conforming change to the presumption rules set forth in chapters 3 and 61.
The Treasury Department and the IRS intend to publish a draft model FFI agreement in early 2012, and intend to publish a final model FFI agreement, incorporating comments received, in the fall of 2012. Section 1.1471–4 sets forth the general requirements that will apply to an FFI under an FFI agreement. Paragraph (a) of § 1.1471–4 includes a general description of the withholding, due diligence, reporting, verification, and certain other requirements under the FFI agreement. Paragraphs (b), (c), and (d) set forth in more detail the withholding, due diligence, and account reporting requirements that will apply to an FFI under an FFI agreement.
The FFI agreement will also provide the IRS's verification process for
Paragraph (b) of § 1.1471–4 describes the withholding requirements of participating FFIs and provides that a participating FFI is required to withhold on any passthru payment that is a withholdable payment made to a recalcitrant account holder or a nonparticipating FFI (or a participating FFI that has made an election to be withheld upon under section 1471(b)(3)) after December 31, 2013. The requirements for withholding on foreign passthru payments are reserved.
Paragraph (b) of § 1.1471–4 also provides that a participating FFI is a withholding agent for purposes of chapter 4 and thus is subject to the requirements of sections 1471(a) and 1472(a) with respect to withholdable payments. Paragraph (b)(2) provides, however, that a participating FFI that complies with the withholding requirements of paragraph (b) and its FFI agreement will be deemed to satisfy its withholding obligations with respect to withholdable payments under sections 1471(a) and 1472(a).
Paragraph (b)(4) provides a special rule for dormant accounts, under which a participating FFI that withholds on passthru payments (including withholdable payments) made to a recalcitrant account holder of a dormant account may, in lieu of depositing the tax withheld, set aside the amount withheld in escrow until the date that the account ceases to be a dormant account. Paragraph (b)(4) provides that within 90 days of the account ceasing to be dormant, the participating FFI must obtain the appropriate documentation for the account holder, in which case the tax withheld is refunded to the account holder. If the participating FFI fails to obtain the required documentation within 90 days, the participating FFI must deposit the tax withheld.
Paragraph (b)(5) provides a special withholding rule for U.S. branches of participating FFIs, which treats a U.S. branch similar to a U.S. financial institution with respect to the withholding requirements under chapter 4. This paragraph provides that a U.S. branch that satisfies its backup withholding obligations under section 3406(a) with respect to accounts treated as held by U.S. non-exempt recipients will be treated as satisfying its withholding obligations under section 1471(b) with respect to such accounts. Paragraph (b)(5) thereby eliminates duplicate withholding that would otherwise occur with respect to account holders of a U.S. branch that are (or are presumed to be) U.S. non-exempt recipients to which backup withholding under section 3406 would apply. A U.S. branch of a participating FFI is also subject to special reporting requirements described in paragraph (d) of § 1.1471–4, which are coordinated with its withholding requirements under this paragraph.
Paragraph (c) of § 1.1471–4 describes the procedures for participating FFIs to identify and document U.S. accounts and accounts other than U.S. accounts. Paragraph (c)(2) describes the general requirements with respect to identification of account holders and incorporates the principles of § 1.1471–3 that determine the chapter 4 status of an account holder, associate an account with valid documentation (without regard to payments), and establish the standards of knowledge for reliance on documentation. Paragraph (c)(2) also requires a participating FFI to retain records of documentation collected, including electronic searches and responses to relationship manager inquiries with respect to certain high-value accounts, for a minimum of six years. The account identification and documentation for participating FFIs described in paragraph (c) generally follow the procedures described in Notice 2011–34 with some modifications made in response to comments.
For identification of entity accounts, paragraph (c)(3) incorporates the identification and documentation rules of § 1.1471–3 and provides an exception from these procedures for preexisting accounts held by entities that are offshore obligations with an account balance or value of $250,000 or less, subject to further diligence if the account balance or value subsequently exceeds $1,000,000. An account that meets this exception is not treated as a U.S. account, and the account holder is not treated as a nonparticipating FFI for withholding and reporting purposes with respect to the account.
For new accounts established for individual account holders, a participating FFI is required to review all information collected under its existing account opening procedures to determine whether the account holder has U.S. indicia (defined in paragraph (c)(4)(i)(A)). Where an account has U.S. indicia, paragraph (c)(4)(i)(B) describes the documentation a participating FFI is required to obtain in order to establish whether the account is a U.S. account. For accounts that are required to be treated as U.S. accounts, the participating FFI is generally required to collect a Form W–9 from each individual account holder. Except for such cases, these rules are intended to minimize the extent to which participating FFIs would need to modify their account opening and documentation collection procedures to comply with these requirements.
Paragraph (c)(4)(ii) of § 1.1471–4 incorporates the rule provided in § 1.1471–5(a)(4), which provides that a participating FFI may treat as other than a U.S. account a preexisting account with a balance or value of $50,000 or less that is held by one or more individuals. Paragraph (c)(4)(iii) provides a documentation exception for preexisting accounts of individual account holders that are offshore obligations, other than cash value insurance or annuity contracts, with an account balance or value of $50,000 or less. Paragraphs (c)(4)(iii)(A), (B), and (C) provide the requirements for accounts to meet this documentation exception, including aggregation rules. Paragraph (c)(4)(iv) provides a
Paragraph (c)(5) provides the currency translation rules for determining the account balance or value. Paragraph (c)(6) provides several examples illustrating the application of the aggregation rules described in paragraphs (c)(4)(iii) and (iv).
Paragraph (c)(7) provides an alternative to the general identification and documentation procedure of paragraph (c)(4)(i) for preexisting offshore accounts of individual account holders. Paragraph (c)(7)(ii) requires, as part of this alternative procedure, that the participating FFI conduct an electronic search for U.S. indicia and obtain the appropriate documentation to establish the account holder's status if U.S. indicia are found. A participating FFI that follows this alternative procedure with respect to an account will not be attributed knowledge with respect to information contained in any account files that the participating FFI did not review and that it was not required to review under this alternative procedure. Additionally, under this alternative procedure, a participating FFI will be treated as having obtained the required documentary evidence if the participating FFI's file contains a notation stating that documentary evidence has been examined and listing the type of document examined and the name of the employee that reviewed the document. The rule described in the preceding sentence is intended to limit those cases in which a participating FFI would need to contact its preexisting account holders to obtain additional documentation of their chapter 4 status.
In response to comments, the proposed regulations do not incorporate the requirement to identify and perform an enhanced review of private banking accounts, as described in Notice 2011–34. Instead, paragraph (c)(8) requires that a participating FFI perform an additional enhanced review of high-value accounts. A high-value account is any account with a balance or value that exceeds $1,000,000 at the end of the calendar year preceding the effective date of the participating FFI's FFI agreement, or at the end of any subsequent calendar year. As part of the enhanced review, the participating FFI must identify all high-value accounts for which a relationship manager has actual knowledge that the account holder is a U.S. person. For these accounts, the participating FFI is required to obtain from the account holder a Form W–9, and a valid and effective waiver, if necessary. For other high-value accounts, paragraph (c)(8)(iii) also requires an enhanced review of paper and electronic files. In response to comments, paragraph (c)(8)(iii)(B) provides that the paper review is limited to the current customer master file and certain documents, described in paragraphs (c)(8)(iii)(A)(
Paragraph (c)(10) requires a responsible officer of a participating FFI to make certain certifications. The first certification is required to confirm, with respect to its preexisting accounts that are high-value accounts, that within one year of the effective date of the FFI agreement the participating FFI has completed the required review and to the best of the responsible officer's knowledge, after conducting a reasonable inquiry, the participating FFI did not have any formal or informal practices or procedures in place at any time from August 6, 2011 (120 days from the release of Notice 2011–34 to the public) through the date of such certification to assist account holders in the avoidance of chapter 4. The Treasury Department and the IRS request comments regarding alternative due diligence or other procedures that should be required of FFIs that are unable to certify that no such practices or procedures were in place after such date in order to maintain participating FFI status.
The second certification by a responsible officer is required to confirm, with respect to all of its preexisting accounts, that within two years of the effective date of its FFI agreement the participating FFI has completed the account identification procedures and documentation requirements or, if it has not obtained the documentation required to be obtained with respect to an account, the participating FFI treats the account holder of such an account as a recalcitrant account holder or nonparticipating FFI.
Paragraph (d) of § 1.1471–4 describes the reporting responsibilities of participating FFIs with respect to U.S. accounts and accounts held by recalcitrant account holders, and includes rules to phase in the reporting requirements. Paragraph (d)(2)(i) provides that a participating FFI is required to report any account that it is required to treat as a U.S. account or as held by a recalcitrant account holder that it maintained at any time during the preceding calendar year or as of the end of the year, respectively.
Paragraph (d)(2)(ii) provides that the participating FFI that maintains the account is responsible for reporting the account for each calendar year subject to an exception that requires a participating FFI to report with respect to account holders of a territory financial institution that acts as an intermediary with respect a withholdable payment and that does not agree to be treated as a U.S. person with respect to the payment. Paragraph (d)(2)(ii)(C) also provides an exception for a participating FFI that elects for one or more of its branches to separately report the accounts maintained by each such branch. This election is intended to address legal restrictions on sharing account holder information across branches located in different jurisdictions and the limitations of many FFIs' information technology systems.
Paragraph (d)(2)(iii)(A) provides a special reporting rule for participating FFIs (other than U.S. branches) that are U.S. payors to coordinate their chapter
Paragraph (d)(2)(iv) requires a participating FFI that maintains an account held by a financial institution that it has identified as an owner-documented FFI to report information with respect to each owner of the owner-documented FFI that is a specified U.S. person.
Paragraph (d)(3) provides rules for reporting accounts held by specified U.S. persons and accounts held by U.S. owned foreign entities under section 1471(c)(1). These rules prescribe the information to be reported with respect to accounts required to be treated as U.S. accounts, the time and manner of filing the required form, and procedures for requesting an extension to file such forms. If a separate reporting election is not made with respect to a branch (as described in this preamble), a participating FFI is also required to report the jurisdiction of the branch that maintains the U.S. account being reported.
Paragraph (d)(4) provides guidance on the information required to be included on the U.S. account information reporting form, including the methods for determining the account balance or value and the currency to be used for reporting account balances and payments made with respect to the account. These rules generally follow the proposed guidance described in Notice 2011–34, but allow a participating FFI to report its U.S. accounts in the currency in which the account is maintained. Paragraph (d)(4)(vi) provides record retention requirements for account statements. The IRS is developing a form for U.S. account reporting and the procedures for processing the form.
Paragraph (d)(5) prescribes the reporting requirements for those participating FFIs that elect to report U.S. accounts under section 1471(c)(2). This paragraph provides that a participating FFI that makes such election must report under sections 6041, 6042, 6045, and 6049 with respect to reportable payments to the same extent as is required of a U.S. payor and requires that the participating FFI treat each holder of a U.S. account that is a specified U.S. person or U.S. owned foreign entity as a payee who is an individual and citizen of the United States. Paragraph (d)(5) also provides that the election under section 1471(c)(2) does not apply to cash value insurance or annuity contracts that are financial accounts and that would otherwise be subject to the reporting requirements of section 6047.
For accounts held by recalcitrant account holders, paragraph (d)(6) provides for aggregate reporting of recalcitrant account holders in separate categories. The separate categories of accounts held by recalcitrant account holders are accounts with U.S. indicia, accounts of other recalcitrant account holders, and dormant accounts. Paragraph (d)(6)(ii) defines dormant accounts and prescribes when an account ceases to be treated as a dormant account.
Paragraph (d)(7) sets forth special reporting rules for accounts maintained for the 2013 through 2015 calendar years. Paragraph (d)(7)(v)(B) provides that, with respect to the 2013 year, participating FFIs must report by September 30, 2014, those accounts identified as U.S. accounts or as held by recalcitrant account holders as of June 30, 2014. However, this paragraph further provides that a U.S. payor (including a U.S. branch) is not required to follow this special June 30, 2014, determination date and may instead report with respect to the 2013 calendar year in accordance with the reporting dates provided under chapter 61 with respect to all accounts identified as U.S. accounts or as held by recalcitrant account holders as of December 31, 2013. These rules also phase in the extent of information required to be reported by participating FFIs with respect to the 2013 through 2015 calendar years.
Paragraphs (d)(8) through (10) reserve on the reporting requirements for participating FFIs that are QIs, and for WPs and WTs with respect to their partners, owners, and beneficiaries. The Treasury Department and the IRS seek comments on coordinating the chapter 3 reporting requirements and existing withholding requirements of these entities under their respective agreements with the reporting and withholding requirements under chapter 4 (including QIs that are foreign branches of U.S. financial institutions). With respect to QIs, the Treasury Department and the IRS do not intend to limit reporting under chapter 4 to QI designated accounts as currently defined in the QI model agreement.
Paragraph (e)(1) of § 1.1471–4 provides the general rule that, for any member of an expanded affiliated group to be a participating FFI or registered deemed-compliant FFI, each FFI that is a member of the group must be either a participating FFI or registered deemed-compliant FFI. Paragraphs (e)(2), (3), and (4) provide exceptions to this general rule for certain branches, FFI affiliates, and QIs. Paragraph (e)(1) also provides that each FFI that is a member of an expanded affiliated group must complete a registration form with the IRS and agree to all the requirements for the status for which it applies with respect to all of the accounts it maintains.
Paragraph (e)(2) permits an FFI to be a participating FFI notwithstanding that one or more of its branches cannot satisfy all of the requirements of the FFI agreement. Paragraph (e)(2)(ii) defines a branch as a unit, business or office of the FFI that is treated as a branch under the regulatory regime of the country in which it is located or is otherwise regulated under the laws of such country as separate from other offices, units, or branches of the FFI, and maintains books and records separate from the books and records of the participating FFI (and any other of its branches). Further, all units, businesses, or offices of a participating FFI in a single country (including the country of organization or incorporation) are treated as a single branch. Paragraph (e)(2)(iii) defines a
Paragraph (e)(3) permits an FFI that is a member of an expanded affiliated group to obtain status as a participating FFI notwithstanding that one or more members of the group cannot satisfy the requirements of the FFI agreement. Similar to the requirements under paragraph (e)(2) for a limited branch, paragraph (e)(3)(ii) defines a
Paragraph (e)(4) provides a special rule for QIs. The Treasury Department and the IRS intend to require all QIs that are FFIs to become participating FFIs. Therefore, in order for an FFI to renew its QI agreement for chapter 3 purposes, an FFI will be required to be a participating FFI. However, paragraph (e)(4) permits QIs to retain their status as a QI for a limited period of time (until December 31, 2015) even though the QI cannot comply with the provisions of an FFI agreement. In such case, the QI is treated as a limited FFI and must identify itself to its withholding agents as a nonparticipating FFI.
Section 1.1471–5 sets forth additional definitions that are applicable to the regulations under section 1471 and to the FFI agreement.
Paragraph (a)(2) of § 1.1471–5 defines the term
Paragraph (a)(4) sets forth the exception from U.S. account status provided in section 1471(d)(1)(B) for any depository account held by one or more individuals with an aggregate balance or value that does not exceed $50,000. Paragraph (a)(4)(ii) provides aggregation rules for determining the aggregate balance or value of the account for purposes of this exception to U.S. account status. The same rules apply to both preexisting and new accounts. Generally, the rules provide that depository accounts are aggregated with other depository accounts only for purposes of applying the exception from U.S. account status provided in section 1471(d)(1)(B).
Section 1471(d)(2) provides that except as provided by the Secretary, the term
Paragraph (b)(1) of § 1.1471–5 defines the term
The proposed regulations also provide guidance on the treatment of debt or equity as a financial account. First, as provided in section 1471(d)(2)(C), debt or equity that is regularly traded on an established securities market is not a financial account. For this purpose, debt or equity interests are considered regularly traded on an established securities market if trades in such interests are effected, other than in
Second, the proposed regulations provide that an equity interest includes a capital or profits interest in a partnership and, in the case of a trust that is a financial institution, the interest of an owner under sections 671 through 679 and a beneficial interest in a trust described in § 1.1473–1(b)(3).
Third, the proposed regulations provide that an equity or debt interest in a financial institution is a financial account if it is an equity or debt interest in a financial institution that is engaged primarily in the business of investing, reinvesting, or trading securities. In the case of a financial institution that is engaged in a banking or similar business, holds financial assets for the account of others, or is an insurance company, equity or debt instruments in such financial institution will constitute financial accounts only if the value of those interests is determined, directly or indirectly, primarily by reference to assets that give rise to withholdable payments.
Finally, to address the circumstances in which certain insurance or annuity contracts are financial accounts, paragraph (b)(1)(iv) includes in the definition of a financial account insurance contracts that include an investment component—namely cash value insurance contracts and annuity contracts. The proposed regulations exclude from the definition of financial account insurance contracts that provide pure insurance protection (such as term life, disability, health, and property and casualty insurance contracts).
Paragraph (c) of § 1.1471–5 defines the term
Section 1471(d)(4) and § 1.1471–5(d) provide that an FFI means any financial institution that is a foreign entity. A territory financial institution is not an FFI.
Section 1471(d)(5) provides that except as otherwise provided by the Secretary, the term
In addition, the Technical Explanation states that the Secretary has authority to “prescribe special rules addressing circumstances in which certain categories of companies, such as insurance companies, are financial institutions.” Technical Explanation, at 44.
Paragraph (e) of § 1.1471–5 provides guidance on the types of entities that constitute “financial institutions.” Paragraph (e)(2) lists the activities that constitute a “banking or similar business” for a deposit-taking institution, and clarifies that entities engaged in a banking or similar business include, but are not limited to, entities that would qualify as a “bank” under section 585(a)(2) (including “banks” as defined in section 581 and any corporation to which section 581 would apply except for the fact that it is a foreign corporation). Instead, the proposed regulations provide that the determination of whether an entity conducts a banking or similar business is based on the character of the business conducted, and the fact that the entity is subject to local regulation is relevant, but not necessarily determinative.
Paragraph (e)(3) defines what constitutes holding financial assets as a “substantial portion” of an entity's business by reference to a bright line test based on gross income. As in the case of deposit-taking institutions, the fact that an entity is subject to the banking or credit laws of one or more jurisdictions is relevant to, but not necessarily determinative of, financial institution status.
The proposed regulations also provide guidance regarding whether an entity is engaged primarily in the business of investing, reinvesting, or trading securities and other relevant assets. Paragraph (e)(1)(iii) includes within the types of securities that cause a financial institution to be engaged primarily in the business of investing, reinvesting, or trading notional principal contracts and insurance and annuity contracts that are traded, held for investment, or securitized. Paragraph (e)(4) provides that an entity is engaged primarily in the business of investing, reinvesting, or trading if the entity's gross income from those activities is at least 50 percent of the entity's total gross income over the testing period.
Paragraph (e)(1)(iv) of the proposed regulations provides that an entity that is an insurance company and issues (or is obligated to make payments with respect to) a cash value insurance policy or an annuity contract is a financial institution.
Finally, the proposed regulations describe entities that are excluded from the definition of a financial institution and are treated as excepted NFFEs. These entities are certain nonfinancial holding companies, certain start-up companies, nonfinancial entities that are liquidating or emerging from reorganization or bankruptcy, hedging/financing centers of a nonfinancial group, and entities described in section 501(c).
Paragraph (f) of § 1.1471–5 describes the FFIs that will be deemed compliant with the requirements of section 1471(b), and therefore exempt from withholding under section 1471(a) and (b). The categories of deemed-compliant FFIs described in these proposed regulations are broader than the categories of deemed-compliant FFIs described in Notice 2011–34. Paragraph (f) provides for two general types of deemed-compliant FFI: registered and certified deemed-compliant FFIs. A registered deemed-compliant FFI generally is required to register with the IRS to declare its status as deemed-compliant and to attest to the IRS that it satisfies certain procedural requirements. The categories of registered deemed-compliant FFIs are
To qualify as a local FFI, generally, each FFI in the group (or in the case of a standalone FFI, the FFI) must meet certain licensing and regulation requirements. In addition, it must have no fixed place of business outside its country of organization and must not solicit account holders outside its country of organization. In addition, 98 percent of the accounts maintained by the FFI must be held by residents of the FFI's country of organization, and the FFI must be subject to reporting or withholding requirements in its country of organization with respect to resident accounts. For this purpose, an FFI that is organized in a European Union (EU) Member State may treat account holders that are residents of other EU Member States as residents of the country in which the FFI is organized. The Treasury Department and the IRS included this rule for FFIs established in EU Member States because financial institutions in EU Member States have common tax reporting or withholding obligations with respect to EU residents. A local FFI must also establish policies and procedures to ensure that it does not open or maintain accounts for specified U.S. persons that are not residents in the country in which the FFI is organized, for nonparticipating FFIs, or for entities controlled or beneficially owned by specified U.S. persons, and must perform due diligence with respect to its entity accounts and certain individual accounts.
The registered deemed-compliant category for nonreporting members of participating FFI groups permits an FFI that is a member of an expanded affiliated group that includes at least one participating FFI to become a deemed-compliant FFI if it transfers any preexisting accounts that are identified under specified procedures as U.S. accounts or accounts held by nonparticipating FFIs to an affiliate that is a participating FFI or U.S. financial institution. Paragraph (f)(1)(i)(B) also requires the nonreporting member to implement policies and procedures to ensure that if it opens or maintains any U.S. accounts or accounts held by nonparticipating FFIs, it either transfers any such accounts to an affiliate that is a participating FFI or U.S. financial institution or becomes a participating FFI itself, in either case within 90 days of having opened the account or of having knowledge or reason to know of a change in circumstances resulting in an account becoming a U.S. account or an account held by a nonparticipating FFI. In response to comments, this type of deemed-compliant FFI is not limited to those FFIs that operate within a single country and that solicit account holders in such country, as was required under Notice 2011–34.
Paragraph (f)(1)(i)(C) sets forth a deemed-compliant category for qualified investment vehicles. In general, an FFI regulated as a collective investment vehicle (CIV) is a qualified investment vehicle if all holders of record of a direct interest in the FFI are participating FFIs, deemed-compliant FFIs, or exempt beneficial owners.
In response to comments, paragraph (f)(1)(i)(D) provides a separate deemed-compliant category for an FFI that is regulated as an investment fund under the law of its country of organization and for which each distributor of the investment fund's interests is a participating FFI, a registered deemed-compliant FFI, a nonregistering local bank, or a restricted distributor (defined in paragraph (f)(4)). Paragraph (f)(1)(i)(D) requires that each agreement that governs the distribution of the investment fund's debt or equity interests (other than interests which are both distributed by and held through a participating FFI) prohibit sales of debt or equity interests in the fund to U.S. persons, nonparticipating FFIs, or passive NFFEs with one or more substantial U.S. owners, and its prospectus must indicate that sales to U.S. persons, passive NFFEs, and nonparticipating FFIs (other than interests which are both distributed by and held through a participating FFI) are prohibited. The FFI must also establish procedures to review preexisting direct accounts and ensure proper treatment of new direct accounts.
Paragraph (f)(1)(ii) sets forth the procedural requirements for registered deemed-compliant FFIs and provides that a registered deemed-compliant FFI must certify to the IRS that it meets the requirements of its applicable deemed-compliant category, agrees to the conditions for deemed-compliant status, and will renew its certification every three years (or earlier if there is a change in circumstance).
The certified categories of deemed-compliant FFIs are nonregistering local banks, retirement plans, non-profit organizations, certain owner-documented FFIs, and FFIs with only low-value accounts. Institutions that satisfy the requirements of these categories are not required to register with the IRS, but each will certify to the withholding agent that it meets the requirements of its certified deemed-compliant category on a Form W–8.
To qualify as a nonregistering local bank, generally, a bank must offer basic banking services, operate solely in its country of incorporation (or if it is a member of an expanded affiliated group, all members must operate in the same country), and the assets on each member FFI's balance sheet must be no more than $175 million (and the entire expanded affiliated group must have no more than $500 million on their combined balance sheets).
Paragraph (f)(2)(ii) describes the requirements for retirement plans to qualify for certified deemed-compliant status. Generally, the FFI must be organized for the provision of retirement or pension benefits under the law of each country in which it is established or in which it operates. Contributions to the FFI must consist only of employer, government, or employee contributions and must be limited by reference to earned income. In addition, no single beneficiary may have a right to more than five percent of the FFI's assets. Finally, contributions to the FFI must be excluded from the income of the beneficiary and/or taxation of the income attributable to the beneficiary must be deferred under the laws of the country in which the FFI is organized or operates, or the FFI must receive 50 percent or more of its total contributions from the government or employers. Alternative criteria are provided for FFIs that provide retirement or pension benefits and that have fewer than 20 participants and meet certain other requirements.
Paragraph (f)(2)(iii) describes the requirements for non-profit organizations to qualify for certified deemed-compliant status. A non-profit organization will qualify for certified deemed-compliant status if it: (i) Is established and maintained in its country of residence exclusively for religious, charitable, scientific, artistic, cultural, or educational purposes; (ii) is exempt from income tax in its country of residence; (iii) has no shareholders or members that have a proprietary interest in its income or assets; and (iv) is subject to restrictions preventing the private inurement of its income and assets.
Paragraph (f)(2)(iv) describes the requirements for FFIs with only low-value accounts to qualify for certified deemed-compliant status. An FFI with only low-value accounts will qualify for certified deemed-compliant status if: (i) The FFI is an FFI solely because it accepts deposits in the ordinary course of a banking or similar business as
Paragraph (f)(3) provides, generally, that an owner-documented FFI is eligible for certified deemed-compliant status if it is not described in § 1.1471–5(e)(1)(i), (ii), or (iv) and is not affiliated with another FFI described in those sections, it maintains no financial accounts for nonparticipating FFIs, it does not issue debt that constitutes a financial account in excess of $50,000 to any person, it provides a withholding agent with all required documentation regarding its owners, and the withholding agent agrees to report to the IRS the information required with respect to any of the owners of the owner-documented FFI that are specified U.S. persons. Because an owner-documented FFI is required to provide each withholding agent with documentation and the withholding agent must agree to report on behalf of the owner-documented FFI, an owner-documented FFI may have certified deemed-compliant status only with respect to a specific withholding agent.
The Treasury Department and the IRS are considering how to address specific organizations or classes of organizations that may not be deemed to comply with the requirements of section 1471(b) due to their use to circumvent the purposes of chapter 4.
In addition, the Treasury Department and the IRS are considering how the conditions for deemed-compliant status should apply where an FFI is described in more than one subparagraph of section 1471(d)(5), because, for example, it accepts deposits in the ordinary course of a banking business and, as a substantial portion of its business, holds financial assets for the account of others.
Paragraph (g) defines the term
Paragraph (h) of § 1.1471–5 defines a passthru payment as any withholdable payment and any foreign passthru payment. The proposed regulations reserve on the definition of a foreign passthru payment, but see the discussions regarding the proposed implementation of reporting on certain foreign payments in section X of this preamble and withholding in section XIX of this preamble.
Section 1471(e)(2) provides the definition of an expanded affiliated group for purposes of section 1471(e) and chapter 4, and § 1.1471–5(i) incorporates that definition.
Section 1.1471–6 describes classes of beneficial owners that are exempt from withholding under section 1471(a) pursuant to section 1471(f) (exempt beneficial owners). The classes of persons treated as exempt beneficial owners are: foreign governments, political subdivisions of a foreign government, and wholly owned instrumentalities and agencies of a foreign government; international organizations and wholly owned agencies or instrumentalities of an international organization; foreign central banks of issue; governments of U.S. territories; and certain foreign retirement plans.
In general, the principles of section 892 and the regulations thereunder apply in determining whether a beneficial owner qualifies as a foreign government. The definition of a controlled entity of a foreign government has been expanded from the definition set forth in § 1.892–2T to include entities that are owned and controlled by more than one foreign sovereign, and paragraph (b)(5) prescribes that such entities will qualify as exempt beneficial owners except when they are financial institutions described in section 1471(d)(5)(A) or (B) and the regulations thereunder. The principles of section 7701(a)(18) and the regulations thereunder generally apply to determine whether a beneficial owner qualifies as an international organization. The principles of section 895 and the regulations thereunder generally apply to determine whether a beneficial owner qualifies as a foreign central bank. Additionally, a foreign central bank is exempt from withholding under chapter 4 with respect to income earned on collateral held by the foreign central bank in the normal course of its operations.
Under paragraph (f), certain foreign retirement funds will qualify as exempt beneficial owners. Specifically, a fund that is eligible for the benefits of an income tax treaty with the United States with respect to income that the fund derives from U.S. sources and that is generally exempt from income tax in that country is an exempt beneficial owner if it operates principally to administer or provide pension or retirement benefits. A fund that is formed for the provision of retirement or pension benefits under the law of the country in which it is established will also qualify as an exempt beneficial owner if: (i) It receives only employer, government, or employee contributions that are limited by reference to earned income, (ii) no single beneficiary has a right to more than five percent of the fund's assets, and (iii) its investment income is exempt from tax under the laws of the country in which it is organized or in which it operates as a result of its status as a retirement or pension plan in that country, or it receives 50 percent or more of its total contributions from the government or employers.
An entity that is described in § 1.1471–6(g) and is wholly owned by one or more exempt beneficial owners is also an exempt beneficial owner.
Section 1.1472–1 provides rules regarding the withholding and reporting requirements of section 1472. Except as otherwise provided in section 1472 and § 1.1472–1, a withholding agent must withhold tax of 30 percent of any withholdable payment made to an NFFE, unless the beneficial owner of such payment is the NFFE or another NFFE, the withholding agent can treat the beneficial owner as an NFFE that does not have any substantial U.S. owners or as an NFFE that has identified its substantial U.S. owners, and the withholding agent reports the required information with respect to any substantial U.S. owners. Paragraph (b)(2) also provides a rule to coordinate the withholding obligations under these proposed regulations with the withholding obligations set forth in an applicable FFI agreement for withholdable payments made by a participating FFI. In general, a participating FFI that complies with its FFI agreement is considered to have satisfied its obligations under section 1472(a) and § 1.1472–1.
Paragraph (c) contains exceptions to the withholding rules described in § 1.1472–1(b) for withholdable payments made to certain excepted NFFEs. Paragraphs (c)(1)(i) through (vi) of § 1.1472–1 identify categories of entities that are exempt from withholding under section 1472(a) and (c). Paragraph (c)(1)(iv) of § 1.1472–1 expands the statutory exception to include a government of a U.S. territory. Paragraph (c)(1)(v) provides an exception for an NFFE that is an active NFFE. An active NFFE is any NFFE if less than 50 percent of its gross income for the calendar year is passive income and less than 50 percent of its assets are assets that produce or are held for the production of dividends, interest, rents and royalties (other than those derived in the active conduct of a trade or business), annuities, or other passive income. Paragraph (c)(1)(vi) clarifies that an entity that is the recipient and beneficial owner of a withholdable payment that is described in § 1.1471–5(e)(5) shall not be subject to withholding under section 1472.
Paragraph (c)(2) provides that payments to a WP and a WT are not subject to withholding under section 1472(a). This is because a WP or WT must generally assume primary withholding responsibilities with respect to reportable amounts under chapter 3 on behalf of their partners, owners, or beneficiaries, respectively, pursuant to their withholding agreements with the IRS under section 1441. Because WP and WT agreements are expected to be modified to take into account withholding obligations under chapter 4, it is not necessary to withhold under section 1472(a) on payments to such entities. Instead, the WP or WT will be required to assume primary chapter 4 withholding responsibility and to identify the chapter 4 status of its partners, owners, or beneficiaries to determine whether it must withhold under section 1471 or 1472.
Paragraphs (d)(1) through (5) of § 1.1472–1 provide rules that clarify the coordination between §§ 1.1472–1 and 1.1471–3. In general, for purposes of § 1.1472–1, a withholding agent may treat the payee of a payment (as determined under § 1.1471–3) as the beneficial owner of the payment, and must determine the chapter 4 status of such payee in accordance with the rules of § 1.1471–3. In addition, paragraph (d)(5) provides that the presumption rules under § 1.1471–3(f) must be applied to determine the chapter 4 status of a payee when the withholding agent does not have valid documentation that it can rely upon to determine the chapter 4 status of the payee.
Paragraph (e) of § 1.1472–1 provides information reporting requirements with respect to withholdable payments made to a payee and the income tax filing requirement of a withholding agent that withholds under § 1.1472–1. In addition, it sets forth the information reporting rules with respect to substantial U.S. owners of certain NFFEs.
Generally, paragraph (a) of § 1.1473–1 defines withholdable payment as any payment of U.S. source FDAP income and any gross proceeds from the sale or other disposition of any property which may produce interest or dividends from sources within the United States with respect to a sale or disposition occurring after December 31, 2014. For chapter 4 purposes, the term
To determine the source of income, paragraph (a)(2)(ii)(A) cross-references the rules provided in sections 861 through 865 and other relevant Code provisions. However, as provided in section 1473(1)(C), paragraph (a)(2)(ii)(B) provides that interest described in section 861(a)(1)(A)(i) or (ii) (bank deposit interest paid with respect to offshore accounts) is treated as income from sources within the United States for purposes of the definition of withholdable payment. Similar to the rule that applies for purposes of withholding under chapter 3, paragraph (a)(2)(ii)(A) provides that if a withholding agent cannot determine the source of a payment at the time the payment is made, the payment is treated as U.S. source.
Generally, paragraph (a)(3) defines the term
Paragraph (a)(4) provides a list of payments that are excluded from the definition of withholdable payments. This list includes original issue discount from certain short-term obligations, income that is taken into account as effectively connected with the conduct of a trade or business in the United States, certain payments in the ordinary course of the withholding agent's business, gross proceeds from the sale of property that can produce income that is excluded from the definition of withholdable payment, and certain broker transactions that involve the sale of fractional shares. While the proposed regulations do not explicitly exempt payments with respect to State and local bonds, interest on State and local bonds is excluded from gross income under section 103, and such interest is thus not a withholdable payment. Moreover, interest that is excluded from gross income under section 103 is not treated as gross income from sources within the United States under section 861(a), and thus gross proceeds from the sale of bonds that give rise to interest that is excluded under section 103 are not withholdable payments.
Paragraph (a)(5) provides special payment rules for flow-through entities with respect to U.S. source FDAP income allocated to partners, owners, and beneficiaries in these entities that mirror the rules under § 1.1441–5. Paragraph (a)(5) reserves on how payments of gross proceeds are to be allocated to such persons.
Paragraph (b) provides the definition of
Paragraphs (b)(2) and (3) set forth attribution rules to determine indirect ownership of stock, partnership interests, and beneficial trust interests. These rules are based on the rules provided in § 1.958–1 for determining stock ownership of controlled foreign corporations.
Paragraph (b)(3) provides the rules for determining whether a specified U.S. person will be treated as directly or indirectly holding a beneficial interest in a foreign trust. These rules are generally coordinated with the rules provided in the recently published temporary regulations under section 6038D, regarding information reporting requirements of certain U.S. persons with respect to their interests in foreign trusts. See TD 9567, 76 FR 78560 (December 19, 2011). Paragraph (b)(4) provides a special rule under which a beneficiary of a trust will not be treated as a substantial U.S. owner if the beneficiary has a right only to discretionary distributions and receives, directly or indirectly, discretionary trust distributions that do not exceed $5,000 in a calendar year or if the beneficiary has a right to mandatory distributions and the value of such beneficiary's interest does not exceed $50,000.
Paragraph (b)(5) provides a special rule for certain investment vehicles and insurance companies that issue (or are obligated to make payments with respect to) cash value insurance or annuity contracts. This rule applies the rules of paragraph (b)(1)(i) through (iii) with a threshold of zero percent, rather than ten percent.
Paragraph (b)(6) specifies that a foreign entity may determine if it has one or more substantial U.S. owners on either the last day of the foreign entity's accounting year or the date on which the foreign entity provides documentation to the withholding agent that maintains the foreign entity's account.
Paragraph (c) provides the definition of specified U.S. person. A specified U.S. person is any U.S. person except as provided in paragraph (c). Persons excluded from the definition of specified U.S. person include: corporations the stock of which is regularly traded on an established securities market; corporations that are affiliates of such corporations; organizations that are exempt from tax under section 501(a); individual retirement plans (as defined in section 7701(a)(37)); real estate investment trusts (as defined in section 856); regulated investment companies (as defined in section 851); common trust funds (as defined in section 584(a)); dealers in securities, commodities, or notional principal contracts (as defined in section 475(c) and (e)) and brokers (as defined in section 6045(c) and § 1.6045–1(a)(1)). The United States and its wholly owned agencies or instrumentalities are also excluded, as are the States, the District of Columbia, the U.S. territories, and any political subdivision or wholly owned agency or instrumentality of any of the foregoing.
Section 1473(4) defines a withholding agent as any person, in whatever capacity acting, having the control, receipt, custody, disposal, or payment of any withholdable payment. Paragraph (d) incorporates this definition and generally adopts rules similar to those provided in the regulations under chapter 3. Paragraph (d) specifically includes participating FFIs and grantor trusts in the definition of withholding agent. Paragraph (d)(6) provides an exception from withholding agent status for individuals making payments that are not in the ordinary course of the individual's trade or business.
Paragraph (e) defines the term
Paragraph (a) provides that a withholding agent that fails to deposit tax that it is required to withhold under chapter 4 is liable for such tax and applicable penalties and additions to tax. Paragraph (b) provides rules for a withholding agent's payment of withholding tax. Paragraph (c)(1) provides rules for the filing of income tax returns by withholding agents for years beginning with the 2014 calendar year and prescribes the payments required to be reported on such returns. These rules generally mirror the rules for returns that are filed under chapter 3. Such returns are required to be filed on Form 1042,
Paragraph (d)(1) prescribes the requirements for the filing of information returns by withholding agents to report payments subject to reporting for chapter 4 purposes and the recipients required to be reported on those forms. The IRS anticipates that such returns will be filed on Forms 1042–S,
Paragraph (d)(2) prescribes the amounts required to be reported on Forms 1042–S and provides for a transitional rule for reporting in 2016 and 2017 requiring participating FFIs to report on a payee-specific basis FDAP income from foreign sources and “other financial payments” made in the 2015 and 2016 calendar years to nonparticipating FFIs. The definition of the term “other financial payment” is reserved, and comments are requested on the types of payments that should be included in this class of payments for purposes of this reporting requirement.
Paragraph (d)(3) prescribes the information required to be reported on Form 1042–S and paragraph (d)(4) prescribes the methods for reporting. Paragraph (e) references the requirement for filing Forms 1042–S on magnetic media with respect to reporting by financial institutions on such media even when they file under 250 returns for a year. These rules are provided in § 301.1474–1. Paragraph (f) provides for the indemnification of a withholding agent against claims for amounts withheld pursuant to chapter 4. Paragraph (g) provides for the same extensions of time to file Forms 1042 and 1042–S as provided in § 1.1461–1(g). Paragraph (h) states applicable penalties and additions to tax related to these requirements. Paragraph (i) describes the reporting requirements of a withholding agent that reports information with respect to one or more specified U.S. persons that hold an interest in an entity that the withholding agent treats as an owner-documented FFI.
Section 1.1474–2 provides rules for adjustments for overwithholding and underwithholding of tax that are substantially similar to the rules for chapter 3 withholding under § 1.1461–2, modified to reflect the purposes of chapter 4. Specifically, the definition of overwithholding under § 1.1461–2 has been revised to clarify that for purposes of chapter 4, overwithholding refers to an amount actually withheld that is in excess of both the amount required to be withheld under chapter 4 and the actual tax liability of the beneficial owner of the payment that was subject to withholding under chapter 4. Furthermore, in order to apply the reimbursement and set-off procedure for any overwithheld amount under chapter 4, the withholding agent must obtain valid documentation from the beneficial owner or payee to identify its chapter 4 status and determine that withholding was not required. In addition, the time period for applying the reimbursement procedure under § 1.1474–2(a)(3) differs from § 1.1461–2, because a withholding agent may not reimburse itself by reducing any deposit of tax unless the reduction occurs before the earliest of the due date for filing the Form 1042–S for the calendar year of overwithholding, the date that the Form 1042–S is actually filed by the withholding agent, or the date Form 1042–S is furnished to the recipient.
Section 1.1474–3 provides rules that are substantially similar to the rules under § 1.1462–1 relating to withheld tax as a credit to the beneficial owner of income. Paragraph (a) of § 1.1474–3 generally provides that the beneficial owner of the income or payment to which the withheld tax is attributable is allowed a credit against such beneficial owner's income tax liability in the amount of tax actually withheld under chapter 4. In addition, the beneficial owner shall include in gross income the entire amount of income, if any, of the payment subject to withholding under chapter 4, including amounts that are subject to withholding under the gross-up formula in § 1.1473–1(a)(2)(v). Paragraph (b) of § 1.1474–3 provides that amounts withheld under chapter 4 are deemed to have been paid by the beneficial owner of the item of income subject to withholding under chapter 4.
Section 1.1474–4 provides that if the tax required to be withheld under chapter 4 is paid by the beneficial owner, payee, or withholding agent, the IRS may not collect from any other, regardless of the original liability for the tax. Furthermore, § 1.1471–4 provides that the person who has an obligation to withhold under chapter 4 and fails to do so is not relieved from liability from interest or penalties for the failure to withhold.
Paragraph (a) of § 1.1474–5 provides the general rule that if an overpayment of tax results from the withholding of tax under chapter 4, the beneficial owner of an amount subject to withholding may claim a refund or credit for the overpayment of tax subject to the requirements and limitations described below and in accordance with the rules under chapter 65. For this purpose, a copy of Form 1042–S must be attached to the beneficial owner's income tax return consistent with the requirements described in § 301.6402–3(e), which shall be amended to conform to this requirement.
Section 1.1474–5 also provides that to the extent the overpayment of tax was paid by the withholding agent out of its own funds, such amount may be credited or refunded to the withholding agent. However, paragraph (a) does not permit a nonparticipating FFI that is a withholding agent with respect to a payment to claim a credit or refund. Paragraph (a)(2) also provides that a nonparticipating FFI that is the beneficial owner of the payment to which the withholding under chapter 4 is attributable is not entitled to a credit or refund except to the extent it is entitled to a reduced rate of withholding by reason of any income tax treaty obligation of the United States, and that no interest shall be allowed or paid with respect to such a credit or refund.
Furthermore, § 1.1474–5 implements section 1474(b)(3) by requiring a beneficial owner that is an entity, other than an entity that is entitled to a reduced rate of withholding by reason of any income tax treaty obligation of the United States, to certify to the IRS that the entity does not have any substantial U.S. owners or to identify its substantial U.S. owners or to provide documentation establishing that withholding was not required (for example, establishing an NFFE's status as an excepted NFFE).
The Treasury Department and the IRS are considering what refund procedures may be appropriate with respect to tax withheld on payments to limited FFIs or limited branches (including QIs that are limited FFIs or that have limited branches), and request comments regarding the procedural safeguards that should be put in place to prevent abuse.
Section 1.1474–6 coordinates withholding under chapter 4 with withholding under other provisions of the Code. With respect to a payment subject to withholding under § 1.1441–2(a), paragraph (b)(1) provides that, to the extent withholding is applied under chapter 4 on a payment, a withholding
Paragraph (c) provides that an amount subject to withholding under section 1445 is not subject to withholding under chapter 4 and coordinates withholding under chapter 4 with the rules provided in § 1.1441–3(c) for distributions by qualified investment entities and United States real property holding corporations (USRPHCs). Generally, to the extent withholding under section 1441 is applicable to a distribution or a portion of the distribution made by a qualified investment entity or USRPHC, the coordination rule described in paragraph (b)(1) apply to such amounts. Paragraph (c) also adopts the intermediary reliance rule of § 1.1441–3(c)(2)(ii)(C) with respect to determinations made by a USRPHC regarding the portion of the distribution that is estimated to be a dividend. Paragraph (d) generally provides that a withholdable payment or a foreign passthru payment subject to withholding under section 1446 is not subject to withholding under chapter 4 and reserves on the coordination of withholding on distributions of gross proceeds subject to tax under section 1446.
Paragraph (e) reserves on the coordination of withholding under chapter 4 for payments subject to backup withholding under section 3406, and the Treasury Department and the IRS seek comments on how these requirements should be coordinated in light of the objectives of chapter 4 withholding. Paragraph (f) provides an example of the application of the coordination rules.
This section does not provide coordination rules for withholding under chapters 3 and 4 on substitute payments that are part of a chain of securities lending transactions using identical securities. Notice 2010–46 outlined a proposed withholding and reporting framework to reduce instances of potential excessive or cascading taxation and to properly account for the role of financial intermediaries in securities lending transactions. Notice 2010–46 also provided transitional rules that taxpayers may rely on prior to the publication of final regulations. The proposed framework and the transitional rules of Notice 2010–46 are limited to withholding on substitute dividend payments under chapter 3 and do not address chapter 4 withholding. The Treasury Department and the IRS invite comments on issues relating to chapter 4 withholding in the context of the transactions described in Notice 2010–46.
Section 1.1474–7 provides that information obtained to comply with the requirements of chapter 4 may only be used for that purpose or for purposes permitted under section 6103. Paragraph (a) incorporates the regulation under § 1.3406(f)–1(a) for confidentiality of information. Consistent with section 1474(c)(2), paragraph (b) provides an exception to paragraph (a), permitting the disclosure of the identity of a participating FFI or deemed-compliant FFI.
Section 301.1474–1 provides that a financial institution must file electronically the information returns with respect to withheld taxes for which the institution is liable as a withholding agent under section 1461 or 1474(a), as the limitation for persons required to file fewer than 250 returns during the tax year does not apply.
Paragraph (b) provides that the Commissioner may grant hardship waivers from the requirement to file electronically, although it is intended that these waivers be granted only in exceptional cases. The Treasury Department and the IRS intend to issue published guidance setting forth the procedures by which a taxpayer may request a hardship waiver. Comments are requested regarding the waiver provision in this regulation.
Paragraph (c) provides that penalties may be imposed under sections 6723 and 6724 on a financial institution that fails to comply with this electronic filing requirement.
The Treasury Department and the IRS expect to issue future guidance on topics not covered in these proposed regulations. This guidance will take a variety of forms. For example, the IRS expects to issue a draft model FFI agreement and draft forms relating to chapter 4 reporting. In addition, future regulations will provide guidance on substantive and procedural issues not addressed in these proposed regulations. The discussion below addresses certain significant aspects of future guidance.
The IRS will make available an online process for registering FFIs as participating FFIs or deemed-compliant FFIs no later than January 1, 2013. The online process will allow each FFI to register for participating, limited, or registered deemed-compliant FFI status, enter into an FFI agreement, complete a required certification, and obtain an FFI–EIN, if applicable. Special registration procedures must be followed by FFIs that are members of an expanded affiliated group (FFI group). As part of the registration process, an online FFI account will be created by the IRS for each FFI, and it is anticipated that FFIs will be able to manage their account information, including making annual certifications, if required, electronically. The online account will allow the IRS and FFIs to more effectively manage and update FFI information to ensure that it is current.
Each member of an FFI group must designate a lead FFI (Lead FFI) to initiate and manage the online registration process for the FFI group. The Lead FFI that assumes this role must enter the system to register itself and, as part of that process, identify each FFI that is a member of the FFI group (FFI Member) that will register for participating, limited, or registered deemed-compliant FFI status. Each FFI member, including the Lead FFI, will be assigned a unique FATCA identifier (FATCA ID) to be used in completing the registration process and associating FFI group members with the FFI group. Each FFI Member must enter the online registration system to complete its registration as a participating FFI, limited FFI, or registered deemed-compliant FFI. The Lead FFI will be responsible for managing the FFI group information and will be able to add or remove members from the FFI group to reflect updated information. For the registration of any FFI member to be complete, and for its chapter 4 status as a participating, limited, or deemed-compliant FFI to be obtained, each FFI member must have completed its registration process.
More information about the online registration process will be provided in future guidance and instructions to the registration form.
Apart from any period of limited FFI status, an FFI that is a QI, WP, or WT will be required to fulfill the chapter 4
The IRS anticipates that the Form W–8 series will be updated to request additional information from a taxpayer that would be relevant to establishing a taxpayer's chapter 4 status, for example, by including a new field for an FFI–EIN.
The Treasury Department and the IRS request comments regarding whether there should be additional categories of deemed-compliant FFIs not addressed in the proposed regulations. Consideration is being given, for example, to providing a category of deemed-compliant FFIs for entities that issue certain insurance or annuity contracts that has requirements that are analogous to the requirements for local FFIs.
While these proposed regulations provide that withholding on passthru payments will begin no sooner than January 1, 2017, the Treasury Department and the IRS are considering ways to ease the compliance burdens associated with passthru payment withholding. Among the alternatives the Treasury Department and the IRS are considering is whether to allow certain FFIs to rely upon a safe harbor passthru percentage if the FFI does not elect to calculate its exact passthru percentage. In addition, the Treasury Department and the IRS are considering whether and to what extent to allow rounding conventions to limit the number of possible passthru percentages that could apply. Comments are requested on these and other recommendations to ease the compliance burden associated with foreign passthru payment withholding.
In addition, future guidance will prevent U.S. and territory financial institutions from serving as “blockers” with respect to foreign passthru payment reporting and withholding. The Treasury Department and the IRS are aware that, because a U.S. withholding agent is currently required to withhold only with respect to withholdable payments, while a participating FFI is generally required to withhold on all foreign passthru payments, this creates the potential for FFIs to use U.S. withholding agents as “blockers” for foreign passthru payments made to nonparticipating FFIs. The Treasury Department and the IRS are assessing various options to address this issue, including expanding the definition of withholdable payments, or requiring FFIs to perform withholding on foreign passthru payments made to U.S. withholding agents acting as intermediaries. Comments are requested regarding possible approaches to address this issue.
Section 1.1473–1(a)(5)(vii) reserves on the issue of how a withholding agent that is a flow-through entity determines the amount of gross proceeds allocable to a partner, beneficiary, or owner in the entity for purposes of the withholding requirements of chapter 4. The Treasury Department and the IRS request additional comments regarding methods to determine the amount of gross proceeds in such cases that are administratively feasible and that do not inappropriately favor investment in U.S. assets through flow-through entities over direct investment with respect to the withholding requirements of chapter 4.
Section 1.1471–2(b) provides an exemption from withholding for certain grandfathered obligations but does not include in the definition of a grandfathered obligation any interest in an entity that is treated as equity for U.S. tax purposes, regardless of whether such entity holds assets that give rise to grandfathered payments. The Treasury Department and the IRS request comments on whether it is appropriate to treat as grandfathered obligations certain equity interests in securitization vehicles that invest solely in debt and similar instruments if such vehicles will liquidate within a specified time frame given the types of investments they hold and the extent of their reinvestment in other assets, and, if so, the appropriate limitations on such treatment to prevent abuse.
The proposed regulations generally are proposed to apply on the date of publication of the Treasury decision adopting these rules as final regulations in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.
The collection of information in these proposed regulations is contained,
It is hereby certified that the collection of information in this notice of proposed rulemaking will not have a significant economic impact on a substantial number of small entities within the meaning of section 601(6) of the Regulatory Flexibility Act (5 U.S.C. chapter 6). Although the Treasury Department and the IRS anticipate that a substantial number of domestic small entities will be affected by the collection of information in this notice of proposed rulemaking, both the Treasury
The domestic small business entities that are subject to chapter 4 and this notice of proposed rulemaking are those domestic business entities that are payors of U.S. source FDAP income that are presently subject to the information collection and reporting rules under chapter 3. These domestic small business entities must be familiar with chapter 3's information collection and reporting rules and forms so as to determine a payee's U.S. withholding status and, based on that status, withhold and remit the proper amount of tax on payments of U.S. source FDAP income. Small domestic business entities that are payors of U.S. source FDAP income have developed and implemented internal reporting and information collection systems under which the business entity satisfies its chapter 3 payee identification, withholding, and tax remittance requirements.
The Treasury Department and the IRS intend to revise the present chapter 3 reporting forms, with the revised forms being used by a payor of U.S. source FDAP income to satisfy the payor's obligations under chapters 3 and 4. As a result, this notice of proposed rulemaking's information collection requirements build on reporting and information collection systems familiar to and currently used by payors of U.S. source FDAP income that are domestic small business entities, thereby reducing the burden imposed on domestic small business entities. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act is not required. Pursuant to section 7805(f), this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses. The IRS invites the public to comment on this certification.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The Treasury Department and the IRS request comments on all aspects of the proposed regulations. All comments will be available for public inspection and copying.
While taxpayers are not required to submit comments and recommendations in any particular format, it would facilitate their review if comments follow these guidelines: (1) No general summary of chapter 4's provisions or the contents of the FATCA Notices is required; (2) comments and recommendations should be ordered starting with comments requested in the preamble and then based on the order of the proposed regulations, including a reference to the regulations that pinpoints the narrowest relevant section, subsection, paragraph, or further subdivision applicable to the comment or recommendation; and (3) recommendations should be set off and numbered sequentially throughout the comment letter. It is hoped that these guidelines will ease the burden in producing comments and facilitate the assessment thereof.
A public hearing has been scheduled for May 15, 2012, beginning at 10 a.m. in the Auditorium, Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments by April 30, 2012, and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight (8) copies) by May 1, 2012. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.
The principal author of the regulations under sections 1471 through 1474 is John Sweeney, Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated significantly in their development.
The principal author of § 301.1474–1 is Michael E. Hara, Office of the Associate Chief Counsel (Procedure and Administration).
Income taxes, Reporting and recordkeeping requirements.
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Accordingly, 26 CFR parts 1 and 301 are proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 1.1471–1 is also issued under 26 U.S.C. 1471.
Section 1.1471–2 is also issued under 26 U.S.C. 1471.
Section 1.1471–3 is also issued under 26 U.S.C. 1471.
Section 1.1471–4 is also issued under 26 U.S.C. 1471.
Section 1.1471–5 is also issued under 26 U.S.C. 1471.
Section 1.1471–6 is also issued under 26 U.S.C. 1471.
Section 1.1472–1 is also issued under 26 U.S.C. 1472.
Section 1.1473–1 is also issued under 26 U.S.C. 1473.
Section 1.1474–1 is also issued under 26 U.S.C. 1474.
Section 1.1474–2 is also issued under 26 U.S.C. 1474.
Section 1.1474–3 is also issued under 26 U.S.C. 1474.
Section 1.1474–4 is also issued under 26 U.S.C. 1474.
Section 1.1474–5 is also issued under 26 U.S.C. 1474.
Section 1.1474–6 is also issued under 26 U.S.C. 1474.
Section 1.1474–7 is also issued under 26 U.S.C. 1474.
Section 301.1474–1 is also issued under 26 U.S.C.1474 * * *
This section lists captions contained in §§ 1.1471–1 through 1.1471–4.
(a) Purpose and scope of chapter 4 of the Internal Revenue Code regulations.
(b) Definitions.
(1) Account.
(i) Account.
(ii) Custodial account.
(iii) Depository account.
(iv) Dormant account.
(v) U.S. account.
(2) Account holder.
(3) AML due diligence.
(4) Annuity contract.
(5) Beneficial owner.
(6) Broker.
(7) Chapter 3.
(8) Chapter 4 of the Internal Revenue Code.
(9) Chapter 4 reportable amount.
(10) Chapter 4 status.
(11) Complex trust.
(12) Customer master file.
(13) Documentary evidence.
(14) Documentation.
(15) EIN.
(16) Electronically searchable information.
(17) Entity.
(18) Excepted FFI.
(19) Exempt beneficial owner.
(20) Expanded affiliated group.
(21) FATF.
(22) FATF-compliant.
(23) FFI.
(i) Deemed-compliant FFI.
(A) Certified deemed-compliant FFI.
(B) Registered deemed-compliant FFI.
(ii) Limited Branch.
(iii) Limited FFI.
(iv) Nonparticipating FFI.
(v) Participating FFI.
(24) FFI agreement.
(25) FFI–EIN.
(26) Financial account.
(27) Financial institution.
(28) Flow-through entity.
(29) Foreign entity.
(30) Foreign passthru payment.
(31) Grantor trust.
(32) Gross proceeds.
(33) Insurance company.
(34) Intermediary.
(i) NQI.
(ii) QI.
(35) Life insurance contract.
(36) NFFE.
(i) Active NFFE.
(ii) Excepted NFFE.
(iii) Passive NFFE.
(37) NQI withholding statement
(38) NWP.
(39) NWT.
(40) Offshore obligation.
(41) Participating FFI group.
(42) Partnership.
(43) Passthru payment.
(44) Payee.
(i) U.S. payee.
(ii) Foreign payee.
(45) Payor.
(46) Person.
(i) U.S. person.
(ii) Foreign person.
(47) Possession of the United States.
(48) Preexisting obligation.
(49) Preexisting entity account.
(50) Preexisting individual account.
(51) QI agreement.
(52) Recalcitrant account holder.
(53) Relationship manager.
(54) Simple trust.
(55) Specified U.S. person.
(56) Standardized industry code.
(57) Substantial U.S. owner.
(58) Territory entity.
(59) Territory financial institution.
(60) Territory NFFE.
(61) TIN.
(62) U.S. owned foreign entity.
(63) U.S. financial institution.
(64) U.S. payor.
(65) U.S. source FDAP income.
(66) Withholdable payment.
(67) Withholding.
(68) Withholding agent.
(69) Withholding certificate.
(i) Flow-through withholding certificate.
(ii) Intermediary withholding certificate.
(70) WP.
(71) WT.
(c) Effective/applicability date.
(a) Requirement to withhold on payments to FFIs.
(1) General rule of withholding.
(2) Special withholding rules.
(i) Requirement to withhold on payments of U.S. source FDAP to participating FFIs that are NQIs, NWPs, or NWTs.
(ii) Residual withholding responsibility of intermediaries and flow-through entities.
(iii) Withholding on certain payments to QIs.
(A) QIs making an election under section 1471(b)(3).
(B) Special rule for QIs that are not FFIs.
(iv) Withholding obligation of a territory financial institution.
(v) Payments of gross proceeds.
(3) Coordination of withholding under section 1471(a) and (b).
(4) Payments for which no withholding is required.
(i) Exception to withholding if the withholding agent lacks control, custody, or knowledge.
(A) In general.
(B) Example.
(ii) Transitional exception to withholding for certain payments made prior to January 1, 2015.
(A) In general.
(B) Prima facie FFIs.
(iii) Payments to a participating FFI.
(iv) Payments to a deemed-compliant FFI.
(v) Payments to an exempt beneficial owner.
(vi) Payments to a territory financial institution.
(b) Grandfathered obligations.
(1) Grandfathered treatment of outstanding obligations.
(2) Definitions.
(i) Grandfathered obligation.
(ii) Obligation.
(iii) Outstanding on January 1, 2013.
(iv) Material modification.
(3) Application to flow-through entities.
(i) Partnerships.
(ii) Simple trusts.
(iii) Grantor trusts.
(c) Effective/applicability date.
(a) Payee defined.
(1) In general.
(2) Payee with respect to a financial account.
(3) Exceptions.
(i) Certain foreign agents or intermediaries.
(ii) Foreign flow-through entity.
(iii) U.S. intermediary or agent of a foreign person.
(iv) Territory financial institution.
(v) Disregarded entity or branch.
(vi) U.S. branch of certain foreign banks or insurance companies.
(vii) Foreign branch of a U.S. financial institution.
(b) Determination of payee's status.
(1) Determining whether a payment is received by an intermediary.
(2) Determination of entity type.
(3) Determination of whether the payment is made to a QI, WP, or WT.
(4) Determination of whether the payee is receiving effectively connected income.
(c) Rules for reliably associating a payment with a withholding certificate or other appropriate documentation.
(1) In general.
(2) Reliably associating a payment with documentation when a payment is made through an intermediary or flow-through entity that is not the payee.
(3) Requirements for validity of certificates.
(i) Form W–9.
(ii) Beneficial owner withholding certificate (Form W–8BEN).
(iii) Withholding certificate of an intermediary, flow-through entity, or U.S. branch (Form W–8IMY).
(A) In general.
(B) Withholding statement.
(1) In general.
(2) Special requirements for an FFI withholding statement.
(3) Special requirements for an NFFE withholding statement.
(4) Special requirements for a territory institution withholding statement.
(5) Special requirements for an exempt beneficial owner withholding statement.
(C) Failure to provide allocation information.
(D) Special rules applicable to a withholding certificate of a QI that assumes primary withholding responsibility under chapter 3.
(E) Special rules applicable to a withholding certificate of a QI that does not assume primary withholding responsibility under chapter 3.
(F) Special rules applicable to a withholding certificate of a territory financial institution that agrees to be treated as a U.S. person for purposes of chapter 4 of the Internal Revenue Code.
(G) Special rules applicable to a withholding certificate of a territory financial institution that does not agree to be treated as a U.S. person for purposes of chapter 4 of the Internal Revenue Code.
(iv) Certificate for exempt status (Form W–8EXP).
(v) Certificate for effectively connected income (Form W–8ECI).
(4) Requirements for written statements.
(5) Requirements for documentary evidence.
(6) Applicable rules for withholding certificates, written statements, and documentary evidence.
(i) Who may sign the certificate or written statement.
(ii) Period of validity.
(A) Withholding certificates.
(B) Written statements.
(C) Documentary evidence.
(D) Change of circumstances.
(1) Defined.
(2) Obligation to notify withholding agent of a change in circumstances.
(3) Withholding agent's obligation with respect to a change in circumstances.
(iii) Record retention.
(iv) Electronic transmission of withholding certificate, written statement, and documentary evidence.
(v) Acceptable substitute withholding certificate.
(vi) Documentation to be furnished for each account unless exception applies.
(vii) Reliance on a prior version of a withholding certificate.
(7) Documentation received after the time of payment.
(d) Documentation requirements to establish payee's chapter 4 status.
(1) Identification of U.S. persons.
(2) Identification of foreign individuals.
(i) In general.
(ii) Transitional exceptions for payments made prior to January 1, 2017, with respect to preexisting obligations.
(iii) Exception for offshore obligations.
(3) Identification of participating FFIs.
(i) In general.
(ii) Transitional exception for payments made prior to January 1, 2017, with respect to preexisting obligations.
(4) Identification of nonparticipating FFIs.
(i) In general.
(ii) Special documentation rules for payments made to an exempt beneficial owner through a nonparticipating FFI.
(5) Identification of registered deemed-compliant FFIs.
(i) In general.
(ii) Transitional exception for payments made prior to January 1, 2017, with respect to preexisting obligations.
(6) Identification of certified deemed-compliant FFIs.
(i) Identification of nonregistering local banks.
(ii) Identification of retirement plans.
(A) In general.
(B) Exception for offshore obligations.
(C) Exception for preexisting offshore obligations.
(iii) Identification of non-profit organizations.
(A) In general.
(B) Exception for offshore obligations.
(C) Exception for preexisting offshore obligations.
(iv) Identification of FFIs with only low-value accounts.
(7) Identification of owner-documented FFIs.
(i) In general.
(ii) Auditor's letter substitute.
(iii) Documentation for owners of payee.
(iv) Content of FFI owner reporting requirement.
(v) Exception for preexisting obligations.
(8) Identification of exempt beneficial owners.
(i) Identification of foreign governments and governments of U.S. possessions.
(A) In general.
(B) Exception for offshore obligations.
(C) Exception for preexisting offshore obligations.
(ii) Identification of international organizations.
(iii) Identification of foreign central banks of issue.
(A) In general.
(B) Exception for offshore obligations.
(C) Exception for preexisting offshore obligations.
(iv) Identification of retirement funds.
(A) In general.
(B) Exception for offshore obligations.
(C) Exception for preexisting offshore obligations.
(v) Identification of entities wholly owned by exempt beneficial owners.
(9) Identification of excepted FFIs.
(i) Identification of nonfinancial holding companies.
(A) In general.
(B) Exceptions for offshore obligations.
(ii) Identification of start-up companies.
(A) In general.
(B) Exception for offshore obligations.
(C) Exception for preexisting obligations.
(iii) Identification of certain nonfinancial entities in liquidation or bankruptcy.
(A) In general.
(B) Exception for offshore obligations.
(C) Exception for preexisting offshore obligations.
(iv) Identification of hedging/financing centers of nonfinancial groups.
(A) In general.
(B) Exception for offshore obligations.
(v) Identification of section 501(c) organizations.
(A) In general
(B) Reason to know.
(10) Identification of territory financial institutions.
(i) Identification of territory financial institutions that are beneficial owners.
(A) In general.
(B) Exception for preexisting offshore obligations.
(ii) Identification of territory financial institutions acting as intermediaries or that are flow-through entities.
(iii) Reason to know.
(11) Identification of NFFEs.
(i) Identification of NFFEs that are publicly traded corporations.
(A) Transitional exception for payments made prior to January 1, 2017, with respect to preexisting obligations.
(B) Exception for offshore obligations.
(C) Exception for preexisting offshore obligations.
(ii) Identification of NFFE affiliates.
(A) Transitional exception for payments made prior to January 1, 2017, with respect to preexisting obligations.
(B) Exception for offshore obligations.
(C) Exception for preexisting offshore obligations.
(iii) Identification of territory NFFEs.
(A) Exception for offshore obligations.
(B) Exception for preexisting offshore obligations of $1,000,000 or less.
(iv) Identification of active NFFEs.
(A) Transitional exception for payments made prior to January 1, 2017, with respect to preexisting obligations.
(B) Exception for offshore obligations.
(C) Exception for preexisting offshore obligations.
(v) Identification of excepted NFFEs described in § 1.1472–1(c)(1)(iv).
(vi) Identification of passive NFFEs.
(A) Transitional exception for payments made prior to January 1, 2017, to preexisting obligations.
(B) Exception for offshore obligations.
(C) Special rule for preexisting offshore obligations.
(D) Required owner certification for passive NFFEs.
(1) In general.
(2) Exception for preexisting obligations of $1,000,000 or less.
(e) Standards of knowledge.
(1) In general.
(2) Notification by the IRS.
(3) FFI–EIN.
(i) In general.
(ii) Special requirements applicable prior to January 2, 2016.
(4) Reason to know.
(i) Standards of knowledge applicable to withholding certificates.
(A) In general.
(B) U.S. address or telephone number.
(1) Presumption of individual's foreign status.
(2) Presumption of entity's foreign status.
(C) U.S. place of birth.
(1) Accounts opened on or after January 1, 2013.
(2) Accounts opened prior to January 1, 2013.
(D) Standing instructions with respect to offshore obligations.
(ii) Standard of knowledge applicable to documentary evidence.
(A) In general.
(B) Establishment of foreign status.
(C) U.S. place of birth.
(1) Accounts opened on or after January 1, 2013.
(2) Accounts opened prior to January 1, 2013.
(D) Standing instructions.
(iii) Information conflicting with payee's claim of chapter 4 status.
(iv) Conduit financing arrangements.
(v) Additional guidance.
(f) Presumptions regarding payee's status in the absence of documentation.
(1) In general.
(2) Presumptions of classification as an individual or entity.
(3) Presumptions of U.S. or foreign status.
(i) Payments to entities with indicia of foreign status.
(ii) Payments to certain exempt recipients.
(iii) Payments with respect to offshore obligations.
(4) Presumption of chapter 4 status for a foreign entity.
(5) Presumption of status as an intermediary.
(6) Joint payees.
(i) In general.
(ii) Exception for offshore obligations.
(7) Rebuttal of presumptions.
(8) Effect of reliance on presumptions and of actual knowledge or reason to know otherwise.
(i) In general.
(ii) Actual knowledge or reason to know that amount of withholding is greater than is required under the presumptions or that reporting of the payment is required.
(g) Effective/applicability date.
(a) In general.
(1) Withholding.
(2) Identification and documentation of account holders.
(3) Reporting.
(4) Expanded affiliated group.
(5) Waiver.
(6) Verification.
(7) Event of default.
(8) Requests for additional information.
(b) Withholding requirements under the FFI agreement.
(1) In general.
(2) Withholdable payments requirements.
(3) Foreign passthru payment. [Reserved].
(4) Dormant accounts.
(5) Special withholding rules for U.S. branches
(6) Special withholding rules for participating FFIs with limited branches and affiliates that are limited FFIs.
(c) Due diligence for the identification of account holders under the FFI agreement.
(1) Scope of paragraph.
(2) Requirements with respect to the identification of account holders.
(i) In general.
(ii) Standards of knowledge.
(iii) Change in circumstances.
(iv) Record retention.
(3) Identification procedure and documentation for entity accounts.
(i) In general.
(ii) Documentation exception for certain preexisting entity accounts.
(A) Previously identified accounts.
(B) Account threshold.
(1) In general.
(2) Aggregation of entity accounts.
(3) Special aggregation rule applicable to relationship managers.
(4) Election to forgo exception.
(4) Identification procedure and documentation for individual accounts.
(i) In general.
(A) U.S. indicia.
(B) Documentation required for U.S. indicia.
(ii) Preexisting accounts of individual account holders documented as U.S. accounts.
(iii) Exception for certain preexisting accounts of individual account holders other than accounts described in § 1.1471–4(c)(4)(iv).
(A) Account threshold.
(B) Aggregation of individual accounts.
(C) Special aggregation rule applicable to relationship managers.
(iv) Exception for certain cash value insurance or annuity contracts of individual account holders that are preexisting obligations.
(A) Individuals.
(B) Account threshold.
(1) In general.
(2) Aggregation of accounts.
(3) Special aggregation rules applicable to relationship managers.
(v) Election to forgo exception.
(5) Currency translation.
(6) Examples.
(7) Alternative identification procedure for preexisting individual accounts that are offshore obligations.
(i) In general.
(ii) Electronic search.
(8) Additional enhanced review for high-value accounts.
(i) In general.
(ii) Relationship manager inquiry.
(iii) Enhanced review.
(A) In general.
(B) Limitations on the enhanced review.
(iv) Exception for certain documented accounts of individual account holders.
(9) Exception for preexisting accounts that a participating FFI has documented as held by foreign individuals for purposes of meeting its obligations under chapter 61 or its QI, WP, or WT agreement.
(10) Certification of responsible officer.
(d) Account reporting under FFI agreement.
(1) Scope of paragraph.
(2) Reporting requirements in general.
(i) Accounts subject to reporting.
(ii) Financial institution required to report an account.
(A) In general.
(B) Special reporting of account holders of territory financial institutions.
(C) Election for branch reporting.
(iii) Special rules for U.S. payors.
(A) Special reporting rule for U.S. payors other than U.S. branches.
(B) Special reporting rule for U.S. branches.
(iv) Accounts maintained for owner-documented FFIs.
(3) Reporting of accounts under section 1471(c)(1).
(i) In general.
(ii) Accounts held by specified U.S. persons.
(iii) Accounts held by U.S. owned foreign entities.
(iv) Branch reporting.
(v) Form for reporting U.S. accounts under section 1471(c)(1).
(vi) Time and manner of filing.
(vii) Extensions in filing.
(4) Description applicable to reporting requirements of § 1.1471–4(d)(3).
(i) Address.
(ii) Account number.
(iii) Account balance or value.
(A) In general.
(B) Currency translation of account balance or value.
(iv) Payments made with respect to accounts.
(A) Depository accounts.
(B) Custodial accounts.
(C) Other accounts.
(D) Transfers and closings of deposit, custodial, insurance, and annuity financial accounts.
(E) Amount and characterization of payments subject to reporting.
(F) Currency translation.
(v) Record retention requirements.
(5) Election to perform reporting under section 1471(c)(2).
(i) In general.
(ii) Information and accounts to be reported.
(iii) Branch reporting
(iv) Time and manner of making the election.
(v) Revocation of election.
(vi) Filing of information under election.
(6) Reporting on recalcitrant account holders.
(i) In general.
(ii) Definition of dormant account.
(iii) End of dormancy.
(iv) Forms.
(v) Time and manner of filing.
(7) Special reporting rules with respect to the 2013 through 2015 calendar years.
(i) In general.
(ii) Information to be reported.
(A) Reporting with respect to the 2013 and 2014 calendar years.
(B) Reporting with respect to the 2015 calendar year.
(iii) Participating FFIs that report under § 1.1471–(d)(5).
(iv) Recalcitrant accounts.
(v) Forms for reporting.
(A) In general.
(B) Special determination date and timing for reporting with respect to the 2013 calendar year.
(8) Reporting requirements of QIs with respect to U.S. accounts. [Reserved].
(9) Reporting requirements of WPs with respect to U.S. accounts. [Reserved].
(10) Reporting requirements of WTs with respect to U.S. accounts. [Reserved].
(11) Examples.
(e) Expanded affiliated group requirements.
(1) In general.
(2) Limited branches
(i) In general.
(ii) Branch defined.
(iii) Limited branch defined.
(iv) Conditions for limited branch status.
(v) Withholding requirements applicable to limited branches.
(vi) Term of limited branch status.
(3) Limited FFI affiliates.
(i) In general.
(ii) Limited FFI.
(iii) Conditions for limited FFI status.
(iv) Group member requirements.
(v) Period for limited FFI status.
(4) Special rule for QIs.
(f) Effective/applicability date.
(a) U.S. accounts.
(1) In general.
(2) Definition of U.S. account.
(3) Account held by.
(i) In general.
(ii) Grantor trust.
(iii) Financial accounts held by agents.
(iv) Jointly held accounts.
(v) Holder of account for certain insurance contracts.
(vi) Examples.
(4) Exceptions to U.S. account status.
(i) Exceptions for certain individual accounts of participating FFIs.
(A) Depository accounts.
(B) $50,000 threshold.
(C) Individual account holders.
(ii) Aggregation requirements for exception.
(iii) Currency translation.
(iv) Election to forgo exception.
(v) Examples.
(b) Financial accounts.
(1) In general.
(2) Exceptions.
(i) Certain savings accounts.
(A) Retirement and pension accounts.
(B) Non-retirement savings accounts.
(C) Currency translation.
(D) Rollovers.
(E) Coordination with section 6038D.
(F) Account that is tax-favored.
(ii) Term life insurance contracts.
(iii) Accounts held by exempt beneficial owner.
(3) Definitions.
(i) Depository account.
(ii) Custodial account.
(iii) Equity interest in certain entities.
(iv) Regularly traded on an established securities market.
(v) Cash value insurance contracts.
(A) In general.
(B) Cash value.
(C) Amounts excluded from cash value.
(c) U.S. owned foreign entity.
(1) In general.
(2) Owner-documented FFI treated as U.S. owned foreign entity.
(d) Definition of FFI.
(e) Definition of a financial institution.
(1) In general.
(2) Banking or similar business.
(i) In general.
(ii) Application of section 581.
(iii) Effect of local regulation.
(3) Holding of financial assets as a substantial portion of its business.
(i) Substantial portion.
(ii) Effect of local regulation.
(4) In the business of investing, reinvesting, and trading.
(5) Exclusions.
(i) Certain nonfinancial holding companies.
(ii) Certain start-up companies.
(iii) Nonfinancial entities that are liquidating or emerging from reorganization or bankruptcy.
(iv) Hedging/financial centers of a nonfinancial group.
(v) Section 501(c) entities.
(f) Deemed-compliant FFIs.
(1) Registered deemed-compliant FFIs.
(i) Registered deemed-compliant FFI categories.
(A) Local FFIs.
(B) Nonreporting members of participating FFI groups.
(C) Qualified collective investment vehicles.
(D) Restricted funds.
(ii) Procedural requirements for registered deemed-compliant FFIs.
(iii) Deemed-compliant FFI that is merged or acquired.
(2) Certified deemed-compliant FFIs.
(i) Nonregistering local bank.
(ii) Retirement funds.
(A) Requirements
(B) Example.
(iii) Non-profit organizations.
(iv) FFIs with only low-value accounts.
(3) Owner-documented FFIs.
(i) In general.
(ii) Requirements of owner-documented FFI status.
(4) Definition of a restricted distributor.
(g) Recalcitrant account holders.
(1) Scope.
(2) Recalcitrant account holder.
(3) Start of recalcitrant account holder status.
(i) Preexisting accounts identified during the procedures described in § 1.1471–4(c) for identifying U.S. accounts.
(A) Accounts other than high-value accounts.
(B) High-value accounts.
(C) Preexisting accounts subject to enhanced review.
(ii) Accounts that are not preexisting accounts and accounts requiring name/TIN correction.
(iii) Accounts with changes in circumstances.
(4) End of recalcitrant account holder status.
(h) Passthru payment.
(1) Defined.
(2) Foreign passthru payment. [Reserved].
(i) Expanded affiliated group.
(1) Scope of paragraph.
(2) Expanded affiliated group defined.
(i) In general.
(ii) Partnerships and other entities..
(j) Effective/applicability date.
(a) Purpose and scope of paragraph.
(b) Foreign government, any political subdivision of a foreign government, or any wholly owned agency or instrumentality of any one or more of the foregoing.
(1) Definition.
(2) Integral part.
(3) Controlled entity.
(4) Inurement to the benefit of private persons.
(5) Commercial activities.
(c) International organizations and any wholly owned agency or instrumentality thereof.
(d) Foreign central bank of issue.
(e) Governments of U.S. possessions.
(f) Certain retirement funds.
(1) Requirements.
(2) Examples.
(g) Entities wholly owned by exempt beneficial owners.
(h) Effective/applicability date.
(a) Overview.
(b) Withholdable payments made to an NFFE.
(1) In general.
(2) Coordination of withholding requirements under section 1472 applicable to participating FFIs.
(c) Exceptions.
(1) Beneficial owner that is an excepted NFFE.
(i) Publicly traded corporation.
(A) Regularly traded.
(B) Entities treated as meeting the regularly traded requirement.
(C) Established securities market.
(1) In general.
(2) Foreign exchange with multiple tiers.
(3) Discretion to determine that an exchange does not qualify as an established securities market.
(4) Computation of dollar value of stock traded.
(ii) Certain affiliated entities related to publicly traded corporation.
(iii) Certain territory entities.
(iv) Exempt beneficial owner described in § 1.1471–4(b) through (g).
(v) Active NFFEs.
(vi) Excepted FFIs.
(2) Payments to a WP or WT.
(d) Rules for determining payee and beneficial owner.
(1) In general.
(2) Payments made to an NFFE that is a WP or WT.
(3) Payments made to a partner or beneficiary of an NFFE that is an NWP or NWT.
(4) Payments made to a beneficial owner that is an NFFE.
(5) Absence of valid documentation.
(e) Information reporting requirements.
(1) Reporting on withholdable payments.
(2) Reporting of substantial U.S. owners.
(f) Effective/applicability date.
(a) Definition of withholdable payment.
(1) In general.
(2) U.S. source FDAP income defined.
(i) In general.
(A) FDAP income defined.
(B) U.S. source.
(ii) Determination of source of income.
(A) In general.
(B) Special source rule for certain interest.
(iii) Original issue discount.
(iv) REMIC residual interests.
(v) Withholding liability of payee that is satisfied by withholding agent.
(vi) Special rule for sales of interest bearing debt obligations.
(vii) Payment of U.S. source FDAP income.
(A) Amount of payment of U.S. source FDAP income.
(B) When payment of U.S. source FDAP income is made
(3) Gross proceeds defined.
(i) Sale or other disposition.
(A) In general.
(B) Special rule for sales effected by brokers.
(C) Special rule for gross proceeds from sales settled by clearing organization.
(ii) Property of a type that can produce interest or dividends that are U.S. source FDAP income.
(A) In general.
(B) Termination of specified notional principal contract.
(C) Registered investment company distributions.
(iii) Payment of gross proceeds.
(A) When gross proceeds are paid.
(B) Amount of gross proceeds.
(iv) Withholding requirements on gross proceeds.
(4) Payments not treated as withholdable payments.
(i) Certain short-term obligations.
(ii) Effectively connected income.
(iii) Ordinary course of business payments.
(iv) Gross proceeds from sales of excluded property.
(v) Fractional shares.
(5) Special payment rules for flow-through entities, complex trusts, and estates.
(i) In general.
(ii) Partnerships.
(iii) Simple trusts.
(iv) Complex trusts and estates.
(v) Grantor trusts.
(vi) Special rule for NWP or NWT.
(vii) Special rule for determining when gross proceeds are treated as paid to partner, owner, or beneficiary of a flow-through entity. [Reserved].
(6) Reporting of withholdable payments.
(7) Example.
(b) Substantial U.S. owner.
(1) Definition.
(2) Direct and indirect ownership in foreign entities.
(i) Indirect ownership of stock.
(ii) Indirect ownership in a partnership or beneficial trust interest.
(iii) Indirect ownership through U.S. persons.
(iv) Ownership and holdings through options.
(v) Determination of proportionate interest.
(3) Beneficial trust interests.
(i) Holding a beneficial interest.
(A) In general.
(B) Discretionary distribution.
(ii) Valuation rules for beneficial interests in foreign trusts.
(iii) Determining the ten percent threshold in the case of a beneficial interest in a foreign trust.
(A) Discretionary beneficial interests.
(B) Mandatory beneficial interests.
(C) Mandatory and discretionary beneficial interests.
(4) Exception for certain beneficial interests.
(5) Special rule for certain investment vehicles and insurance.
(6) Determination dates for substantial U.S. owners.
(7) Examples.
(c) Specified U.S. person.
(d) Withholding agent.
(1) In general.
(2) Participating FFIs as withholding agents.
(3) Grantor trusts as withholding agents.
(4) Deposit and return requirements.
(5) Multiple withholding agents.
(6) Exception for certain individuals.
(e) Foreign entity.
(f) Effective/applicability date.
(a) Payment and returns of tax withheld.
(1) In general.
(2) Withholding agent liability.
(3) Use of agents.
(i) In general.
(ii) Liability of agent of withholding agent.
(4) Liability for failure to obtain documentation timely or to act in accordance with applicable presumptions.
(i) In general.
(ii) Withholding satisfied by another withholding agent.
(b) Payment of withheld tax.
(c) Income tax return.
(1) In general.
(2) Amended returns.
(d) Information returns for payment reporting.
(1) Filing requirement.
(i) In general.
(ii) Recipient.
(A) Defined.
(B) Persons that are not recipients.
(2) Amounts subject to reporting.
(i) In general.
(ii) Special transitional reporting by participating FFIs.
(A) Reporting requirements for certain payments to nonparticipating FFIs.
(1) FDAP income.
(2) Other financial payments. [Reserved].
(B) Payments to limited branches.
(iii) Exceptions to reporting.
(iv) Coordination with chapter 3.
(3) Required information.
(4) Method of reporting.
(i) Payments by U.S. withholding agent to recipients.
(A) Payments to certain entities that are beneficial owners.
(B) Payments to participating FFIs, deemed-compliant FFIs, or certain QIs.
(C) Amounts paid to territory financial institutions acting as intermediaries.
(D) Amounts paid to NFEEs.
(ii) Payments made by withholding agents to certain entities that are not recipients.
(A) Form 1042–S reporting of entities that provide information for a withholding agent to perform specific payee reporting.
(B) Nonparticipating FFIs that act as intermediaries.
(C) Disregarded entities.
(iii) Reporting by nonparticipating FFIs, flow-through entities, or territory financial institutions that do not elect to be treated as U.S. persons.
(iv) Other withholding agents.
(e) Magnetic media reporting.
(f) Indemnification of withholding agent.
(g) Extensions of time to file Forms 1042 and 1042–S.
(h) Penalties.
(i) Reporting requirements with respect to owner-documented FFIs.
(1) Reporting by U.S. withholding agent.
(2) Cross reference to reporting by participating FFIs.
(j) Effective/applicability date.
(a) Adjustment of overwithheld tax.
(1) In general.
(2) Overwithholding.
(3) Reimbursement of tax.
i. General rule.
ii. Record maintenance.
(4) Set-offs.
(5) Examples.
(b) Withholding of additional tax when underwithholding occurs.
(c) Effective/applicability date.
(a) Creditable tax.
(b) Amounts paid to persons that are not the beneficial owners.
(c) Effective/applicability date.
(a) Tax paid.
(b) Effective/applicability date.
(a) Refund and credit.
(1) In general.
(2) Limitation to refund and credit for a nonparticipating FFI.
(3) Requirement to provide additional documentation for certain beneficial owners.
(i) In general.
(ii) Claim of reduced withholding under an income tax treaty.
(iii) Additional documentation to be furnished to the IRS for certain NFFEs.
(b) Tax repaid to payee.
(c) Effective/applicability date.
(a) In general.
(b) Coordination of withholding for amounts subject to withholding under sections 1441, 1442, and 1443.
(1) In general.
(2) When withholding is applied.
(c) Coordination with amounts subject to withholding under section 1445.
(1) In general.
(2) Determining amount of distribution from certain domestic corporations subject to section 1445 or chapter 4 withholding.
(i) Distribution from qualified investment entity.
(ii) Distribution from a United States Real Property Holding Corporation.
(d) Coordination with section 1446.
(1) In general.
(2) Determining amount of distribution subject to section 1446. [Reserved].
(e) Coordination of withholding under section 3406. [Reserved].
(f) Example.
(g) Effective/applicability date.
(a) Confidentiality of information.
(b) Exception for disclosure of participating FFIs.
(c) Effective/applicability date.
(a)
(b)
(1)
(ii)
(iii)
(iv)
(v)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(i) Is not subject to a FATF call on its members and other jurisdictions to apply counter-measures to protect the international financial system from the on-going and substantial money laundering and terrorist financing (ML/TF) risks emanating from the jurisdiction;
(ii) Is not a jurisdiction with strategic AML/CFT deficiencies that has not made sufficient progress in addressing the deficiencies; and
(iii) Is not a jurisdiction with strategic AML/CFT deficiencies irrespective of whether the jurisdiction has agreed upon an action plan with the FATF.
(23)
(i)
(A)
(B)
(ii)
(iii)
(iv)
(v)
(24)
(25)
(26)
(27)
(28)
(29)
(30)
(31)
(32)
(33)
(34)
(i)
(ii)
(35)
(36)
(i)
(ii)
(iii)
(37)
(38)
(39)
(40)
(41)
(42)
(43)
(44)
(i)
(ii)
(45)
(46)
(i)
(ii)
(47)
(48)
(49)
(50)
(51)
(52)
(53)
(54)
(55)
(56)
(57)
(58)
(59)
(60)
(61)
(62)
(63)
(64)
(65)
(66)
(67)
(68)
(69)
(i)
(ii)
(70)
(71)
(c)
(a)
(2)
(ii)
(iii)
(
(
(
(
(B)
(iv)
(v)
(3)
(4)
(i)
A, an individual, owns stock in DC, a domestic corporation, through a custodian, Bank 1, that is a participating FFI. A also has a money market account at Bank 2, that is also a participating FFI. DC pays a dividend of $1,000 that is deposited in A's custodial account at Bank 1. A then directs Bank 1 to transfer that $1,000 to A's money market account at Bank 2. With respect to the payment of the dividend into A's custodial account with Bank 1, both DC and Bank 1 are withholding agents making a withholdable payment for which they have custody, control, and knowledge. See § 1.1473–1(a)(2)(vii)(B) and (d). Therefore, both DC and Bank 1 have an obligation to withhold on the payment unless they can reliably associate the payment with documentation sufficient to treat the respective payees as not subject to withholding under chapter 4 of the Internal Revenue Code. With respect to the wire transfer of $1,000 from A's account at Bank 1 to A's account at Bank 2, neither Bank 1 nor Bank 2 is required to withhold with respect to the transfer because neither bank has knowledge of the facts that gave rise to the payment. Even though Bank 1 is a custodian with respect to A's interest in DC and has knowledge regarding the $1,000 dividend paid to A, once Bank A credits the $1,000 dividend to A's account, the $1,000 becomes A's property. When A transfers the $1,000 to its account at Bank 2, this constitutes a separate payment about which Bank 1 has no knowledge regarding the type of payment made. Further, Bank 2 only has knowledge that it receives $1,000 to be credited to A's account but has no knowledge regarding the type of payment made. Accordingly, Bank 1 and Bank 2 have no withholding obligation with respect to the transfer from A's custodial account at Bank 1 to A's money market account at Bank 2.
(ii)
(B)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(iii)
(iv)
(v)
(vi)
(b)
(2)
(i)
(ii)
(A) A debt instrument as defined in section 1275(a)(1) (for example, a bond, guaranteed investment certificate, or term deposit);
(B) A binding agreement to extend credit for a fixed term (for example, a line of credit or a revolving credit facility), provided that on the agreement's issue date the agreement fixes the material terms (including a stated maturity date) under which the credit will be provided;
(C) A life insurance contract payable upon the earlier of attaining a stated age or death;
(D) A term certain annuity contract; and
(E) A derivatives transaction entered into between counterparties under an ISDA Master Agreement and evidenced by a confirmation.
(iii)
(iv)
(3)
(ii)
(iii)
(c)
(a)
(2)
(3)
(
(
(B) In the case of an agent or intermediary described in paragraph (a)(3)(i)(A) of this section, the payee is the person or persons for whom the agent or intermediary collects the payment. Thus, for example, the payee of a payment of U.S. source FDAP income that the withholding agent can reliably associate with a withholding certificate from a qualified intermediary that does not assume primary withholding responsibility with respect to the payment under chapter 3, or a payment to a participating FFI that is an NQI, is the person or persons for whom the QI or NQI acts.
(ii)
(
(
(
(
(B) A withholding agent that makes a withholdable payment to a flow-through entity that is not described in paragraphs (a)(3)(ii)(A)(
(iii)
(iv)
(v)
(vi)
(vii)
(b)
(1)
(2)
(3)
(4)
(c)
(2)
(ii) Notwithstanding paragraph (c)(2)(i) of this section, a withholding agent that makes a payment with respect to an offshore obligation to an intermediary or flow-through entity that is an NFFE, may rely upon a written notification from the intermediary or flow-through entity, regardless of whether such notification is signed, stating that the NFFE is a flow-through entity or is acting as an intermediary with respect to the payment, in lieu of the Form W–8 described in the previous sentence. However, in such case, the NFFE intermediary or flow-through entity will be required to provide the withholding statement that generally accompanies the Form W–8IMY, designating the payees and the appropriate amount that should be allocated to each payee. If no such withholding statement is provided, the payment will be treated as made to a nonparticipating FFI.
(3)
(ii)
(
(
(
(
(
(B) For purposes of chapter 4 of the Internal Revenue Code, a person's permanent residence address is the address in the country where the person claims to be a resident for purposes of
(iii)
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(C)
(D)
(E)
(F)
(G)
(iv)
(v)
(4)
(5)
(i) A certificate of residence issued by an appropriate tax official of the country in which the payee claims to be a resident that indicates that the payee has filed its most recent income tax return as a resident of that country;
(ii) With respect to an individual, any valid identification issued by an authorized government body (for example, a government or agency thereof, or a municipality), that includes the individual's name and address and is typically used for identification purposes;
(iii) With respect to an entity, any official documentation issued by an authorized government body (for example, a government or agency thereof, or a municipality) that includes the name of the entity and either the address of its principal office in the country (or possession of the United States) in which it claims to be a resident or the country (or possession of the United States) in which the entity was incorporated or organized;
(iv) With respect to an account maintained in a jurisdiction with anti-money laundering rules that have been approved by the IRS in connection with a QI agreement (as referenced in § 1.1441–1(e)(5)(iii)), any of the documents other than a Form W–8 or W–9 referenced in the jurisdiction's attachment to the QI agreement for identifying individuals or entities; and
(v) Any financial statement, third-party credit report, bankruptcy filing, SEC report, or other document identified in the specific payee documentation requirements in paragraph (d) of this section.
(6)
(i)
(ii)
(B)
(C)
(D)
(
(
(iii)
(iv)
(v)
(vi)
(vii)
(7)
(d)
(1)
(2)
(ii)
(iii)
(3)
(ii)
(4)
(ii)
(A) A valid withholding certificate that identifies the payee as a nonparticipating FFI that is either acting as an intermediary or is a flow-through entity; and
(B) An exempt beneficial owner withholding statement that meets the requirements of paragraphs (c)(3)(iii)(B)(
(5)
(ii)
(6)
(ii)
(B)
(C)
(iii)
(B)
(C)
(
(
(iv)
(7)
(A) The withholding agent has a valid withholding certificate that identifies the payee as an owner-documented FFI that is not acting as an intermediary;
(B) The withholding agent agrees to treat the payee as an owner-documented FFI;
(C) The payee submits on an annual basis an FFI owner reporting statement associated with the withholding certificate that provides all of the information designated in paragraph (d)(7)(iv) of this section;
(D) The payee submits valid documentation (including any necessary waivers) associated with each individual, specified U.S. person, owner-documented FFI, exempt beneficial owner, or NFFE that holds, directly or indirectly, an interest in the payee;
(E) The withholding agent does not know or have reason to know that the payee maintains any financial account for a nonparticipating FFI or issues debt
(F) The withholding agent does not know or have reason to know that the payee is affiliated with any other FFI other than an FFI that is also treated as an owner-documented FFI by the withholding agent.
(ii)
(iii)
(iv)
(A) The FFI owner reporting statement must contain the name, address, TIN (if any), entity tax classification, and the type of documentation (Form W–9, Form W–8, or other documentary evidence) provided to the owner-documented FFI for every person that owns an equity interest in the payee, and must indicate that person's chapter 4 status.
(B) The FFI owner reporting statement must indicate the percentage that each person owns of the payee.
(C) The FFI owner reporting statement must also contain any other information the withholding agent reasonably requests in order to fulfill its obligations under chapter 4 of the Internal Revenue Code.
(v)
(8)
(B)
(C)
(ii)
(iii)
(B)
(C)
(iv)
(
(
(B)
(C)
(v)
(A) A valid withholding certificate that identifies the payee as an entity described in § 1.1471–5(e)(1)(iii) that is the beneficial owner of the payment;
(B) An owner reporting statement that contains the name, address, TIN (if any), entity tax classification, chapter 4 status, and a description of the type of documentation (Form W–8 or other documentary evidence) provided to the withholding agent for every person that owns an equity interest in the payee, that indicates the percentage that each such person owns of the payee, and that is subject to the general rules applicable to all withholding statements described in paragraph (c)(3)(iii)(B)(
(C) Associated documentation for every owner of the payee establishing, pursuant to the documentation requirements described in paragraph (d)(8) of this section, that every owner of the payee is an entity described in § 1.1471–6 (without regard to whether the owner of the payee is a beneficial owner of the payment).
(9)
(B)
(
(
(ii)
(B)
(C)
(
(
(iii)
(B)
(C)
(iv)
(B)
(v)
(
(
(B)
(10)
(B)
(
(
(ii)
(iii)
(11)
(A)
(
(
(
(B)
(
(
(
(C)
(ii)
(A)
(
(
(
(B)
(
(
(
(C)
(
(
(
(
(iii)
(A)
(
(
(3) Has no reason to know that the payee is not the beneficial owner of the payment.
(B)
(iv)
(A)
(B)
(C)
(
(
(v)
(vi)
(A)
(B)
(C)
(D)
(
(e)
(2)
(3)
(ii)
(4)
(i)
(B)
(
(
(
(
(
(
(C)
(
(D)
(ii)
(B)
(
(
(
(
(
(
(
(
(C)
(
(D)
(iii)
(iv)
(v)
(f)
(2)
(3)
(i)
(A) If the withholding agent has actual knowledge of the payee's EIN and that number begins with the two digits “98”;
(B) If the withholding agent's communications with the payee are
(C) If the withholding agent has a telephone number for the payee outside of the United States; or
(D) If the name of the payee indicates that the entity is of a type that is on the per se list of foreign corporations contained in § 301.7701–2(b)(8)(i).
(ii)
(iii)
(4)
(5)
(6)
(ii)
(7)
(8)
(ii)
(g)
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(b)
(2)
(3)
(4)
(5)
(6)
(c)
(2)
(ii)
(iii)
(iv)
(3)
(ii)
(A)
(B)
(
(
(
(4)
(A)
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(ii)
(iii)
(A)
(B)
(C)
(iv)
(A)
(B)
(
(
(v)
(5)
(6)
(7)
(ii)
(8)
(ii)
(iii)
(
(
(
(
(
(B)
(
(
(
(
(
(
(iv)
(9)
(10)
(d)
(2)
(ii)
(B)
(
(
(C)
(iii)
(B)
(
(
(
(
(iv)
(3)
(ii)
(A) The name, address, and TIN of each account holder that is a specified U.S. person;
(B) The account number;
(C) The account balance or value of the account;
(D) The payments made with respect to the account, as described in paragraph (d)(4)(iv) of this section, during the calendar year; and
(E) Such other information as is otherwise required to be reported under this paragraph (d)(3) or in the form described in paragraph (d)(3)(v) of this section and its accompanying instructions.
(iii)
(A) The name, address, and TIN (if any) of the U.S. owned foreign entity;
(B) The name, address and TIN of each substantial U.S. owner of such entity;
(C) The account number;
(D) The account balance or value; and
(E) The payments made with respect to the account, as described in paragraph (d)(4)(iv) of this section, during the calendar year.
(iv)
(v)
(vi)
(vii)
(4)
(ii)
(iii)
(B)
(iv)
(B)
(
(
(
(
(C)
(D)
(1) the payments and income paid or credited to the account that are described in paragraph (d)(4)(iv)(A) or (B) of this section for the calendar year until the date of transfer or closure, and
(2) the amount or value withdrawn or transferred from the account in connection with the closure or transfer of the account.
(E)
(F)
(v)
(5)
(ii)
(A) In the case of an account holder that is a specified U.S. person:
(
(
(B) In the case of an account holder that is a U.S. owned foreign entity that is an NFFE—
(
(
(
(iii)
(iv)
(v)
(vi)
(6)
(A) The aggregate number and aggregate value of accounts held by recalcitrant account holders at the end of the calendar year, other than accounts described in paragraph (d)(6)(i)(C), that have U.S. indicia as described in paragraph (c)(4)(i)(A) of this section;
(B) The aggregate number and aggregate value of accounts held by recalcitrant account holders at the end of the calendar year, other than accounts described in paragraph (d)(6)(i)(C), that do not have U.S. indicia as described in paragraph (c)(4)(i)(A) of this section; and
(C) The aggregate number and aggregate value of accounts held by recalcitrant account holders at the end of the calendar year that are dormant accounts.
(ii)
(A) Has not executed a transaction with regard to the account or any other account held by the account holder with the FFI in the past three years; and
(B) Has not replied to queries from the FFI that maintains such account regarding the account or any other account held by the account holder with the FFI in the past six years.
(iii)
(A) Executes a transaction in the account or any other account held by the account holder with the FFI; or
(B) Replies to any query from the FFI that maintains such account regarding the account or any other account held by the account holder with the FFI; or
(C) Ceases to be treated as a dormant account under applicable laws or regulations or the participating FFI's normal operating procedures.
(iv)
(v)
(7)
(ii)
(A)
(
(
(
(B)
(
(
(iii)
(iv)
(v)
(B)
(8)
(9)
(10)
(11)
(e)
(2)
(A) All branches (as defined in paragraph (e)(2)(ii) of this section) that cannot satisfy all of the requirements of the FFI agreement are limited branches as described in paragraph (e)(2)(iii) of this section;
(B) The FFI maintains at least one branch that can comply with all of the requirements of a participating FFI, even if the only branch that can comply is a U.S. branch; and
(C) The FFI agrees to and complies with the conditions in paragraph (e)(2)(iv) of this section.
(ii)
(iii)
(A) With respect to accounts that pursuant to this section and the FFI agreement it is required to treat as U.S. accounts, report such accounts to the IRS as described in paragraph (d) of this section, close such accounts within a reasonable period of time, or transfer such accounts to a branch of the FFI, a participating FFI member of the expanded affiliated group of the FFI, or another participating FFI that may so report; or
(B) With respect to recalcitrant account holders and accounts held by nonparticipating FFIs, withhold with respect to each such account as required under paragraph (b) of this section, block each such account (as defined in the next sentence), close each such account within a reasonable period of time, or transfer each such account to another branch of the FFI or a participating FFI member of the expanded affiliated group of the FFI that is not subject to the restrictions described in this paragraph (e)(2)(iii)(B) with respect to such account holders. For purposes of this paragraph (e)(2)(iii)(B), an account is considered blocked when the FFI prohibits the account holder from effecting any transactions with respect to an account until such time as the account is closed, transferred, or the account holder provides the documentation described in paragraph (c) of this section for the FFI to determine the U.S. or non-U.S. status of the account.
(iv)
(A) Identify the relevant jurisdiction of each branch for which it seeks limited branch status;
(B) Agree that each such branch will identify its account holders under the due diligence requirements applicable to participating FFIs under paragraph (c) of this section, retain account holder documentation pertaining to those identification requirements for six years from the effective date of its FFI agreement, and report to the IRS with respect to accounts it is required to treat as U.S. accounts to the extent permitted under the relevant laws pertaining to the branch;
(C) Agree to treat each such branch as an entity separate from its other branches for purposes of the withholding requirements described in paragraph (e)(2)(v) of this section;
(D) Agree that each such branch will not open accounts that it is required to treat as U.S. accounts or accounts held by nonparticipating FFIs, including accounts transferred from any branch of the FFI that is not a limited branch or from any member of its expanded affiliated group; and
(E) Agree that each limited branch will identify itself to withholding agents as a nonparticipating FFI (including affiliates of the FFI in the same expanded affiliated group that are withholding agents).
(v)
(vi)
(3)
(ii)
(A) With respect to accounts that pursuant to this section it is required to treat as U.S. accounts, report such accounts to the IRS as described in paragraph (d) of this section, close such accounts within a reasonable period of time, or transfer such accounts to an affiliate or other participating FFI that may so report; or
(B) With respect to recalcitrant account holders and accounts held by nonparticipating FFIs, withhold with respect to each such account as required under paragraph (b) of this section, block each such account, close each such account within a reasonable period of time, or transfer each such account to an affiliate of the FFI that is a participating FFI. See paragraph (e)(2)(ii)(B) of this section for when an account is considered blocked.
(iii)
(A) Register as part of its expanded affiliated group's FFI agreement process for limited FFI status;
(B) Agree as part of such registration to identify its account holders under the due diligence requirements applicable to participating FFIs under paragraph (c) of this section, retain account holder documentation pertaining to those identification requirements for six years from the effective date of its registration as a limited FFI, and report with respect to accounts that it is required to treat as U.S. accounts to the extent permitted under the relevant laws pertaining to the FFI;
(C) Agree as part of such registration that it will not open accounts that it is required to treat as U.S. accounts or accounts held by nonparticipating FFIs, including accounts transferred from any member of its expanded affiliated group; and
(D) Agree as part of such registration that it will identify itself to withholding agents as a nonparticipating FFI.
(iv)
(v)
(4)
(f)
(a)
(2)
(3)
(ii)
(A) If such person is treated as owning all the assets in the account under sections 671 through 679, the account will be treated as held by such person;
(B) If such person is treated as owning a portion of the account or the assets in the account under sections 671 through 679, the account will be treated as held by both such person and the trust; and
(C) If such person is not treated as owning any portion of the account or any of the assets in the account under sections 671 through 679, the account will be treated as held by the trust.
(iii)
(iv)
(v)
(vi)
(4)
(A)
(B)
(C)
(ii)
(iii)
(iv)
(v)
(b)
(i) Any depository account (as defined in paragraph (b)(3)(i) of this section) maintained by a financial institution (as defined in paragraph (e)(1) of this section);
(ii) Any custodial account (as defined in paragraph (b)(3)(ii) of this section) maintained by a financial institution (as defined in paragraph (e)(1) of this section);
(iii) Any equity or debt interest (other than interests that are regularly traded on an established securities market) in a financial institution that is described in paragraph (e)(1)(iii) of this section (and is not described in paragraph (e)(1)(i), (ii), or (iv) of this section). The term also includes any equity or debt interest (other than interests that are regularly traded on an established securities market) in a financial institution that is described in paragraphs (e)(1)(i), (ii), and (iv) of this section, but only if the value of the debt or equity interest is determined, directly or indirectly, primarily by reference to assets that give rise to withholdable payments. Any equity or debt interest that constitutes a financial account under this paragraph (b)(1)(iii) with respect to any financial institution shall be treated for purposes of section 1471 as maintained by such financial institution; or
(iv) Any cash value insurance contract (as defined in paragraph (b)(3)(v) of this section) and any annuity contract issued or maintained by a financial institution (as defined in paragraph (e)(1) of this section).
(2)
(
(
(
(
(
(
(
(
(
(
(C)
(D)
(E)
(F)
(ii)
(iii)
(3)
(i)
(A) A commercial, checking, savings, time, or thrift account, or an account which is evidenced by a certificate of deposit, thrift certificate, investment certificate, certificate of indebtedness, or other similar instrument; and
(B) Any amount held by an insurance company under an agreement to pay or credit interest thereon.
(ii)
(iii)
(iv)
(A) Trades in such interests are effected, other than in
(B) The aggregate number of such interests that were traded on such market or markets during the prior calendar year was at least ten percent of the average number of such interests outstanding during the prior calendar year.
(v)
(B)
(
(
(C)
(
(
(
(c)
(2)
(d)
(e)
(i) Accepts deposits in the ordinary course of a banking or similar business (as defined in paragraph (e)(2) of this section);
(ii) Holds, as a substantial portion of its business (as defined in paragraph (e)(3) of this section), financial assets for the account of others;
(iii) Is engaged (or holding itself out as being engaged) primarily (as defined in paragraph (e)(4) of this section) in the business of investing, reinvesting, or trading in securities (as defined in section 475(c)(2) without regard to the last sentence thereof), partnership interests, commodities (as defined in section 475(e)(2)), notional principal contracts (as defined in § 1.446–3(c)), insurance or annuity contracts, or any interest (including a futures or forward contract or option) in such security, partnership interest, commodity, notional principal contract, insurance contract, or annuity contract; or
(iv) Is an insurance company (or the holding company of an insurance company) that issues or is obligated to make payments with respect to a financial account under paragraph (b)(1) of this section.
(2)
(A) Accepts deposits of funds;
(B) Makes personal, mortgage, industrial, or other loans;
(C) Purchases, sells, discounts, or negotiates accounts receivable, installment obligations, notes, drafts, checks, bills of exchange, acceptances, or other evidences of indebtedness;
(D) Issues letters of credit and negotiates drafts drawn thereunder;
(E) Provides trust or fiduciary services;
(F) Finances foreign exchange transactions;
(G) Enters into, purchases, or disposes of finance leases or leased assets; or
(H) Provides charge and credit card services.
(ii)
(iii)
(3)
(A) The three-year period ending on December 31 of the year in which the determination is made; or
(B) The period during which the entity has been in existence.
(ii)
(4)
(A) The three-year period ending on December 31 of the year in which the determination is made, or
(B) The period during which the entity has been in existence.
(5)
(i)
(ii)
(iii)
(iv)
(v)
(f)
(1)
(i)
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(C)
(
(
(
(D)
(
(
(
(
(
(
(
(
(
(ii)
(A) Have its chief compliance officer or an individual of equivalent standing with the FFI certify to the IRS in such a manner as the IRS specifies that all of the requirements for the deemed-compliant category claimed by the FFI have been satisfied as of the date the FFI registers as a deemed-compliant FFI;
(B) Obtain from the IRS a confirmation of its registration as a deemed-compliant FFI and an FFI–EIN;
(C) Agree that if it chooses to publish a passthru payment percentage, it will do so in accordance with the procedures set forth in § 1.1471–5(h);
(D) Renew its certification every three years; and
(E) Agree to notify the IRS if there is a change in circumstances which would make the FFI ineligible for the deemed-compliant status for which it has registered.
(iii)
(2)
(i)
(A) The FFI must operate and be licensed solely as a bank (within the meaning of section 581, determined as if the FFI were incorporated in the United States) in its country of incorporation or organization and engage primarily in the business of making loans and taking deposits from unrelated retail customers.
(B) The FFI must be licensed to conduct business in its country of incorporation or organization and must have no fixed place of business outside such country.
(C) The FFI must not solicit account holders outside its country of organization. For this purpose, an FFI will not be considered to have solicited account holders outside of its country of organization merely because it operates a Web site, provided that the Web site does not specifically state that nonresidents may hold deposit accounts with the FFI, advertise the availability of U.S. dollar denominated deposit accounts or other investments, or target U.S. customers.
(D) The FFI must have no more than $175 million in assets on its balance sheet and, if the FFI is a member of an expanded affiliated group, the group may have no more than $500 million in total assets on its consolidated or combined balance sheets.
(E) The FFI must be required under the tax laws of the country in which the FFI is organized to perform either information reporting or withholding of tax with respect to resident accounts. An FFI that is not subject to such information reporting or withholding requirements will be considered to meet this requirement if all of the accounts maintained by the FFI have a value or account balance of $50,000 or less, taking into account the account aggregation rules set forth in § 1.1471–4(c)(4).
(F) With respect to an FFI that is part of an expanded affiliated group, each FFI in the expanded affiliated group must be incorporated or organized in the same country and must meet the requirements set forth in this paragraph (f)(2)(i).
(ii)
(
(
(
(
(
(
(
(
(
(
(B)
FC, a State F foreign corporation, instituted a retirement plan for its current and former employees. The plan is organized under State F law for the provision of retirement or pension benefits and contributions to the plan are excluded from beneficiaries' income under State F law. The only contributions allowed to be made to the plan are contributions that FC's employees make based on a percentage of their compensation income, and such contributions (as well as earnings on such contributions) are credited to the employee's account. FC does not make contributions to the plan. Retirement benefits will reflect the amounts credited to the individual accounts. No single beneficiary is entitled to more than 5% of the trust's assets. The plan meets the requirements of paragraph (f)(2)(ii)(A)(1) of this section because contributions are limited by reference to earned income, all contributions to the plan are employee contributions, no single beneficiary has a right to more than 5% of the plan's assets, and contributions to the plan are excluded from the gross income of the beneficiaries.
(iii)
(
(
(
(
(
(iv)
(A) The FFI must be an FFI only because it is described in paragraphs (e)(1)(i) and/or (ii) of this section.
(B) No financial account maintained by the FFI (or, in the case of an FFI that is a member of an expanded affiliated group, by any member of the expanded affiliated group) has a balance or value in excess of $50,000. The balance or value of a financial account shall be determined by applying the rules described in paragraph (a)(4)(i) of this section, substituting the term
(C) The FFI must have no more than $50,000,000 in assets on its balance sheet as of the end of its most recent accounting year. In the case of an FFI that is a member of an expanded affiliated group, the entire expanded affiliated group must have no more than $50,000,000 in assets on its consolidated or combined balance sheet as of the end of its most recent accounting year.
(3)
(ii)
(A) The FFI is not described in paragraph (e)(1)(i), (ii), or (iv) of this section;
(B) The FFI must not be affiliated with any other FFI described in paragraph (e)(1)(i), (ii), or (iv) of this section;
(C) The FFI must not maintain a financial account for any nonparticipating FFI or issue debt which constitutes a financial account to any person in excess of $50,000;
(D) The FFI must provide the designated withholding agent (that is either a U.S. financial institution or a participating FFI) with all of the documentation described in § 1.1471–3(d)(7); and
(E) The withholding agent must agree to report to the IRS all of the information described in § 1.1474–1(i) with respect to any of the owner-documented FFI's direct or indirect owners that are specified U.S. persons.
(4)
(i) The distributor must provide investment services to at least 30 unrelated customers and no more than half of the distributor's customers can be related persons.
(ii) The distributor must be required to perform AML due diligence procedures under the anti-money laundering laws of its country of organization (which must be FATF-compliant).
(iii) The distributor must operate solely in its country of incorporation or organization, must not have a fixed place of business outside that country, and, if such distributor belongs to an affiliated group, must have the same country of incorporation or organization as all other members of its affiliated group.
(iv) The distributor must not solicit customers outside its country of incorporation or organization. For this purpose, an FFI will not be considered to have solicited account holders outside of its country of organization merely because it operates a Web site, provided that the Web site does not specifically state that nonresidents may acquire securities from the FFI or target U.S. customers.
(v) The distributor must have no more than $175 million in total assets under management and no more than $7,000,000 in gross revenue on its income statement for the most recent accounting year and, if the distributor belongs to an affiliated group, the entire group must have no more than $500 million in total assets under management and no more than $20 million in gross revenue for its most recent accounting year on a combined or consolidated income statement.
(vi) The distributor must provide the FFI with a valid Form W–8 indicating that the distributor satisfies the requirements to be a restricted distributor.
(vii) The agreement governing the distributor's distribution of debt or equity interests of the FFI must prohibit the distributor from distributing any securities to specified U.S. persons, passive NFFEs that have one or more substantial U.S. owners, and nonparticipating FFIs, and must require that if the distributor does distribute securities to any of the persons described in this paragraph (f)(4)(vii), that it will redeem or cancel those interests within six months and the commission paid to the distributor will be forfeited to the FFI.
(viii) With respect to sales made on or after December 31, 2011, and prior to the time the restrictions described in paragraphs (f)(1)(i)(D)(
(g)
(2)
(i) The account holder fails to comply with requests by the participating FFI for the documentation or information that is required under § 1.1471–4(c) for determining the status of such account
(ii) The account holder fails to provide a valid Form W–9 upon request from the participating FFI or fails to provide a correct name and TIN combination upon request from the participating FFI when the participating FFI has received notice from the IRS indicating that the name and TIN combination reported by the participating FFI (or a branch thereof in the case in which the branch reports the account separately under § 1.1471–4(d)(2)(ii)(C)) for the account holder is incorrect; or
(iii) If foreign law would prevent reporting by the participating FFI (or branch or division thereof) of the information described in § 1.1471–4(d)(3) or (5) with respect to such account, the account holder (or substantial U.S. owner of an account holder that is a U.S. owned foreign entity) fails to provide a valid and effective waiver of such law to permit such reporting.
(3)
(B)
(C)
(ii)
(iii)
(4)
(h)
(2)
(i)
(2)
(A) By substituting “more than 50 percent” for “at least 80 percent each place it appears; and
(B) Without regard to paragraphs (2) and (3) of section 1504(b).
(ii)
(j)
(a)
(b)
(1)
(2)
(3)
(A) It is wholly owned and controlled by a foreign sovereign directly or indirectly through one or more controlled entities;
(B) Its net earnings are credited to its own account or to other accounts of the foreign sovereign, with no portion of its income inuring to the benefit of any private person as defined in paragraph (b)(4) of this section; and
(C) Its assets vest in the foreign sovereign upon dissolution. (ii) A controlled entity also includes a partnership or any other entity owned and controlled by more than one foreign sovereign, so long as it otherwise satisfies paragraphs (b)(3)(i)(A) through (C) of this section, after replacing “foreign sovereign” with “one or more foreign sovereigns” in each place it appears therein.
(4)
(i) Income will be presumed not to inure to the benefit of private persons if such persons (within the meaning of section 7701(a)(1)) are the intended beneficiaries of a governmental program that is carried on by the foreign sovereign and the activities of which constitute governmental functions (within the meaning of the regulations under section 892).
(ii) Income will be considered to inure to the benefit of private persons if such income benefits—
(A) Private persons through the use of a governmental entity as a conduit for personal investment, including the operation of a commercial banking business providing services to private persons; or
(B) Private persons who divert such income from its intended use by the exertion of influence or control through means explicitly or implicitly approved of by the foreign sovereign.
(5)
(c)
(d)
(2) A foreign central bank of issue may include an instrumentality that is separate from a foreign government, whether or not owned in whole or in part by a foreign government. For example, foreign banks organized along the lines of, and performing functions similar to, the Federal Reserve System qualify as foreign central banks of issue for purposes of this section.
(3) The Bank for International Settlements shall be treated as though it were a foreign central bank of issue for purposes of chapter 4 of the Internal Revenue Code.
(4) Solely for purposes of determining whether an entity is an exempt beneficial owner under section 1471(f), a foreign central bank is a beneficial owner with respect to income earned on collateral held by the foreign central bank in the normal course of its operations.
(e)
(f)
(i) A fund meets the requirements of this paragraph (f)(1)(i) if the fund—
(A) Is established in a country with which the United States has an income tax treaty in force and is generally exempt from income taxation in that country;
(B) Is operated principally to administer or provide pension or retirement benefits; and
(C) Is entitled to benefits under the treaty on income that the fund derives from U.S. sources as a resident of the other country that satisfies any applicable limitation on benefits requirement.
(ii) A fund meets the requirements of this paragraph (f)(1)(ii) if the fund—
(A) Is formed for the provision of retirement or pension benefits under the law of the country in which is established;
(B) Receives all of its contributions (other than transfers of assets from accounts described in § 1.1471–5(b)(2)(i)(A) or other plans described in § 1.1471–5(f)(2)(ii) or this paragraph (f)) from government, employer, or employee contributions that are limited by reference to earned income;
(C) Does not have a single beneficiary with a right to more than five percent of the entity's assets; and
(D) Is exempt from tax on investment income under the laws of the country in which it is established or in which it operates due to its status as a retirement or pension plan, or receives 50 percent or more of its total contributions (other than transfers of assets from accounts described in § 1.1471–5(b)(2)(i)(A) or other plans described in § 1.1471–5(f)(2)(ii) or this paragraph (f)) from the government and the employer.
(2)
FP, a foreign pension fund established in Country X, is generally exempt from income taxation in Country X, and is operated principally to provide retirement benefits in such country. The U.S.-Country X income tax treaty is identical in all material respects to the 2006 U.S. model income tax convention. FP is a resident of Country X under Article 4(2)(a) and a qualified person under Article 22(2)(d) of the U.S.-Country X income tax treaty. Therefore, FP is a pension fund described in paragraph (f)(1)(i) of this section.
FC, a State F foreign corporation formed a pension trust to provide pension benefits under the law of State and pursuant to a retirement plan for its employees and former employees. Retirement benefits under the plan are based on a percentage of the final year's salary paid to an individual, times the number of years of service. Pursuant to the plan, all contributions (calculated as a percentage of the employee's salary) are made by FC to the pension trust. The income of the trust is credited to the trust's account and subsequently used to satisfy the pension plan's obligations to retired employees. No single beneficiary is entitled to more than 5% of the trust's assets. State F does not have an income tax treaty with the United States. The trust is a foreign employer sponsored retirement plan that meets the requirements of paragraph (f)(1)(ii) of this section.
The facts are the same as in
(g)
(h)
(a)
(b)
(i) The beneficial owner of such payment is the NFFE or any other NFFE;
(ii) The withholding agent can, pursuant to paragraph (d) of this section, treat the beneficial owner of the payment as an NFFE that does not have any substantial U.S. owners, or as an NFFE that has identified its substantial U.S. owners; and
(iii) The withholding agent reports the information described in paragraph (e) of this section relating to any substantial U.S. owners of the beneficial owner of such payment.
(2)
(c)
(i)
(A)
(
(
(
(
(B)
(C)
(
(
(
(
(
(
(
(
(
(ii)
(iii)
(iv)
(v)
(A) Dividends;
(B) Interest;
(C) Rents and royalties, other than rents and royalties derived in the active conduct of a trade or business conducted by employees of the NFFE;
(D) Annuities;
(E) Death benefits from life insurance contracts (under U.S. or applicable law);
(F) Amounts received from or with respect to a pool of insurance contracts if the amounts received depend upon the performance of the pool;
(G) The excess of gains over losses from the sale or exchange of property that gives rise to passive income described in paragraphs (c)(1)(v)(A) through (G) of this section;
(H) The excess of gains over losses from transactions (including futures, forwards, and similar transactions) in any commodities, but not including any commodity hedging transaction described in section 954(c)(5)(A), determined by treating the corporation or partnership as a controlled foreign corporation;
(I) The excess of foreign currency gains over foreign currency losses (as defined in section 988(b)) attributable to any section 988 transaction; and
(J) Net income from notional principal contracts as defined in § 1.446–3(c)(1).
(vi)
(2)
(d)
(2)
(3)
(4)
(5)
(e)
(2)
(i) Name of the NFFE that is owned by a substantial U.S. owner;
(ii) Name of each such owner;
(iii) Each such owner's TIN;
(iv) The mailing address for each such owner; and
(v) Any other information as required by the designated form and its accompanying instructions.
(f)
(a)
(i) Any payment of U.S. source FDAP income (as defined in paragraph (a)(2) of this section); and
(ii) For any sales or other dispositions occurring after December 31, 2014, any gross proceeds from the sale or other disposition (as defined in paragraph (a)(3)(i)) of any property of a type which can produce interest or dividends that are U.S. source FDAP income.
(2)
(B)
(ii)
(B)
(iii)
(iv)
(v)
(vi)
(vii)
(B)
(3)
(B)
(C)
(ii)
(B)
(C)
(iii)
(B)
(
(
(
(
(
(iv)
(4)
(i)
(ii)
(iii)
(iv)
(v)
(5)
(ii)
(iii)
(iv)
(v)
(vi)
(6)
(7)
(b)
(i) With respect to any foreign corporation, any specified U.S. person that owns, directly or indirectly, more than ten percent of the stock of such corporation (by vote or value);
(ii) With respect to any foreign partnership, any specified U.S. person that owns, directly or indirectly, more than ten percent of the profits interests or capital interests in such partnership; and
(iii) In the case of a trust—
(A) Any specified U.S. person treated as an owner of any portion of such trust under subpart E of Part I of subchapter J of chapter 1 (sections 671 through 679); or
(B) Any specified U.S. person that holds, directly or indirectly, more than ten percent of the beneficial interests of such trust.
(2)
(i)
(ii)
(iii)
(iv)
(v)
(3)
(B)
(ii)
(iii)
(B)
(C)
(4)
(5)
(6)
(7)
(c)
(1) A corporation the stock of which is regularly traded on one or more established securities markets, as described in § 1.1472–1(c)(1)(i);
(2) Any corporation that is a member of the same expanded affiliated group as a corporation described in § 1.1472–1(c)(1)(i);
(3) Any organization exempt from taxation under section 501(a) or an individual retirement plan as defined in section 7701(a)(37);
(4) The United States or any wholly owned agency or instrumentality thereof;
(5) Any State, the District of Columbia, any possession of the United States, any political subdivision of any of the foregoing, or any wholly owned agency or instrumentality of any one or more of the foregoing;
(6) Any bank as defined in section 581;
(7) Any real estate investment trust as defined in section 856;
(8) Any regulated investment company as defined in section 851 or any entity registered with the Securities Exchange Commission under the Investment Company Act of 1940 (15 U.S.C. 80a–64);
(9) Any common trust fund as defined in section 584(a);
(10) Any trust that is exempt from tax under section 664(c) or is described in section 4947(a)(1);
(11) A dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any State; and
(12) A broker as defined in section 6045(c) and § 1.6045–1(a)(1).
(d)
(2)
(3)
(4)
(5)
(6)
(e)
(f)
(a)
(2)
(3)
(A) There is a written agreement between the withholding agent and the foreign person acting as agent;
(B) Books and records and relevant personnel of the foreign agent are available (on a continuous basis, including after termination of the relationship) in order to evaluate the withholding agent's compliance with the provisions of chapter 4; and
(C) The withholding agent remains fully liable for the acts of its agent and does not assert any of the defenses that may otherwise be available, including under common law principles of agency, in order to avoid tax liability under the Internal Revenue Code.
(ii)
(4)
(A) The withholding agent has appropriately relied on the presumptions described in § 1.1471–3(f) in order to treat the payment as exempt from withholding; or
(B) The withholding agent can demonstrate to the satisfaction of the Commissioner that the proper amount of withholding was satisfied by another withholding agent or was otherwise paid.
(ii)
(b)
(c)
(2)
(d)
(ii)
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(
(
(2)
(A) U.S. source FDAP income (regardless of whether subject to withholding under chapter 4 and including a passthru payment that is U.S. source FDAP income) paid on or after January 1, 2014;
(B) Gross proceeds subject to withholding under chapter 4; and
(C) Foreign passthru payments subject to withholding under chapter 4.
(ii)
(
(
(B)
(iii)
(iv)
(3)
(i) The name, address, and EIN of the withholding agent;
(ii) A description of each category of income or payment made based on the income and payment codes provided on the form (for example, interest, dividends, and gross proceeds) and the aggregate amount in each category expressed in U.S. dollars;
(iii) The rate and amount of withholding applied or the basis for exempting the payment from withholding under chapter 4 of the
(iv) The name and address of the recipient and its TIN or EIN (when required);
(v) The name and address of any FFI acting as an intermediary, a flow-through entity that is an NFFE, or territory financial institution that is not treated as a U.S. person under § 1.1471–3(c)(2)(iii)(G) when an account holder or owner of such entity (including an unknown recipient or owner) is treated as the recipient of the payment;
(vi) The TIN or EIN of an entity reported under paragraph (d)(3)(v) of this section;
(vii) The country (based on the country codes provided on the form) of the recipient and of any entity the name of which appears on the form; and
(viii) Such information as the form or instructions may require in addition to, or in lieu of, information required under this paragraph (d)(3).
(4)
(A)
(B)
(C)
(
(
(D)
(ii)
(B)
(C)
(iii)
(iv)
(e)
(f)
(g)
(h)
(i)
(
(
(
(
(
(2)
(j)
(a)
(2)
(3)
(A) The repayment occurs before the earlier of the due date (without regard to extensions) for filing the Form 1042–S for the calendar year of overwithholding or the date that the Form 1042–S is actually filed with the IRS;
(B) The withholding agent states on timely filed (not including extensions) Form 1042–S the amount of tax withheld and the amount of any actual repayment; and
(C) The withholding agent states on a timely filed (not including extensions) Form 1042 for the calendar year of overwithholding, that the filing of the Form 1042 constitutes a claim for credit in accordance with § 1.6414–1.
(ii)
(4)
(5)
(i) Fund A, organized as a United Kingdom corporation, is a unit investment trust that is an FFI and that is a resident that qualifies for the benefits of the income tax treaty between the United States and the United Kingdom. On December 1, 2014, domestic corporation C pays a dividend of $100 to Fund A, at which time C withholds $30 of tax pursuant to § 1.1471–2(a) and remits the balance of $70 to Fund A because it does not hold valid documentation that Fund A is a participating FFI or deemed-compliant FFI. On February 10, 2015, prior to the time that C is obligated to file its Form 1042, Fund A furnishes a valid Form W–8BEN described in §§ 1.1441–1(e)(2)(i) and 1.1471–3(c)(3)(ii) upon which C may rely to treat Fund A as the beneficial owner of the income and as a participating FFI so that C may reduce the rate of withholding to 15% under the provisions of the United States-United Kingdom income tax treaty with respect to the payment. C repays the excess tax withheld of $15 to Fund A.
(ii) During the 2014 calendar year, C makes no other payments upon which tax is required to be withheld under chapter 3 or 4 of the Code; accordingly, its Form 1042 for such year, filed on March 15, 2015, shows total tax withheld of $30, an adjusted total tax withheld of $15, and tax deposited of $30 for such year. Pursuant to § 1.6414–1, C claims a credit for the overpayment of $15 shown on the Form 1042 for 2014. Accordingly, C is permitted to reduce by $15 any deposit required by § 1.6302–2 to be made of tax withheld during the 2015 calendar year with respect to taxes due under chapters 3 or 4. The Form 1042–S required to be filed by C with respect to the dividend of $100 paid to Fund A in 2014 is required to show tax withheld of $30 and tax repaid of $15 to Fund A.
(i) In November 2014, Bank A, a foreign bank organized in the United Kingdom that is a nonqualified intermediary, receives on behalf of one of its account holders, Z, an individual, a $100 dividend payment from C, a domestic corporation. At the time of payment, C withholds $30 pursuant to § 1.1471–2(a) and remits the balance of $70 to Bank A, because it does not hold valid documentation that it may rely on to treat Bank A as a participating FFI or deemed-compliant FFI. On December 2014, prior to the time that C files its Forms 1042 and 1042–S, Bank A furnishes a valid Form W–8IMY and FFI withholding statement described in § 1.1471–3(c)(3)(iii) that establishes Bank A's status as a participating FFI that is a nonqualified intermediary, as well as a valid Form W–8BEN that has been completed by Z as described in § 1.1471–3(c)(2)(ii) and § 1.1441–1(e)(2)(i) upon which C may rely to treat the payment as made to Z, a nonresident alien individual who is a resident of the United Kingdom eligible for a reduced rate of withholding of 15% under the income tax treaty between the United States and United Kingdom. Although C has already deposited the $30 that was withheld, as required by § 1.6302–2(a)(1)(iv), C remits the amount of $15 to Bank A for the benefit of Z.
(ii) During the 2014 calendar year, C makes no other payments upon which tax is required to be withheld under chapters 3 or 4; accordingly, its return on Form 1042 for such year, which is filed on March 15, 2015, shows total tax withheld of $30, an adjusted total tax withheld of $15, and tax deposited of $30. Pursuant to § 1.6414–1(b), C claims a credit for the overpayment of $15 shown on the Form 1042 for 2014. Accordingly, it is permitted to reduce by $15 any deposit required by § 1.6302–2 to be made of tax withheld during the 2015 calendar year. The Form 1042–S required to be filed by C for 2014 with respect to the dividend of $100 beneficially owned by Z is required to show tax withheld of $30 and tax repaid of $15 to Z.
(b)
(c)
(a)
(b)
(c)
(a)
(b)
(a)
(2)
(3)
(ii)
(iii)
(A) A certification that the beneficial owner does not have any substantial U.S. owners;
(B) The form described in § 1.1472–1(e)(2) relating to each substantial U.S. owner of such entity; or
(C) Other appropriate documentation to establish withholding was not required under chapter 4.
(b)
(c)
(a)
(b)
(2)
(c)
(2)
(ii)
(d)
(2)
(e)
(g)
(a)
(b)
(c)
26 U.S.C. 7805 * * *
Section 301.1474–1 also issued under 26 U.S.C. 1474(f). * * *
(a)
(b)
(c)
(d)
(1)
(2)
(e)
Employment and Training Administration, Labor.
Final rule.
The Employment and Training Administration (ETA) of the U.S. Department of Labor (Department) issues this final rule to implement the YouthBuild Transfer Act of 2006 (Transfer Act), which establishes the YouthBuild program in the Department under subtitle D of Title I of the Workforce Investment Act of 1998 (WIA) as amended. The final rule clarifies the requirements of the Transfer Act for YouthBuild program providers and participants. The final rule sets the standards under which YouthBuild program providers can carry out the goals of the program, which are to assist at-risk youth in obtaining a High School diploma or General Educational Development (GED) diploma and acquiring occupational skills training that leads to employment through the construction/rehabilitation of housing for low-income or homeless individuals and families in the community.
Sanzanna Toles, Program Manager, Division of Youth Services, Office of Workforce Investment, U.S. Department of Labor, 200 Constitution Avenue, Room N–4508, Washington, DC 20210; telephone 202–693–3030 (this is not a toll free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal information Relay service at 1–800–877–8339.
a. The ETA of the Department issues this final rule to implement the Transfer Act, which establishes the YouthBuild program in the Department under subtitle D of Title I of the WIA as amended.
b. On September 22, 2006, the Transfer Act, codified at Section 173A of the WIA, 29 U.S.C. 2918a, was signed into law. The Transfer Act authorizes grants for job training and educational activities for at-risk youth who, as part of their training, help construct or rehabilitate housing for homeless individuals and families and low-income families in their respective communities. Participants receive a combination of classroom training, job skills development, and on-site training in the construction trades.
The final rule clarifies the requirements of the Transfer Act for YouthBuild program providers and participants. The final rule sets the standards under which YouthBuild program providers can carry out the goals of the program, which are to assist at-risk youth in obtaining a High School diploma or GED and acquiring occupational skills training that leads to employment through the construction/rehabilitation of housing for low-income or homeless individuals and families in the community. Furthermore, the final rule expands the occupational skills training opportunities in YouthBuild beyond construction skills training. We have determined, based on comments received advocating the expansion of the training offered to include occupational skills training and our program administration experience, that allowing other occupational skills training will help YouthBuild programs provide more successful job placement outcomes and secondary schools placements for program participants.
This rule has not been designated an economically significant rule under section 3(f) of Executive Order 12866. However, we provide an analysis of the impact of the final rule, including a costs and benefits analysis under Executive Order 13563, in the Administrative Section of this final rule.
The Preamble of this final rule is organized as follows:
On September 22, 2006, the YouthBuild Transfer Act of 2006, Public Law 109–281 (Transfer Act), codified at Section 173A of the Workforce Investment Act of 1998 (WIA), 29 U.S.C. 2918a, was signed into law. The Transfer Act authorizes grants for job training and educational activities for at-risk youth who, as part of their training, help construct or rehabilitate housing for homeless individuals and families and low-income families in their respective communities. Participants receive a combination of classroom training, job skills development, and on-site training in the construction trades.
The White House Task Force for Disadvantaged Youth recommended transferring the administration of the YouthBuild program, also known as “Hope for Youth,” from the U.S. Department of Housing and Urban Development (HUD) to the Department.
The transfer allows for greater coordination of the YouthBuild program with Job Corps, WIA Youth Programs, the workforce investment system, including local workforce investment boards (WIBs), One-Stop Career Centers, and their partner programs (for example, Federal, State, and local education agencies), while at the same time retaining many of the same affordable housing goals as the HUD program. The Transfer Act transfers the authority for the YouthBuild program from the Cranston-Gonzalez National Affordable Housing Act (49 U.S.C. 12899
The Transfer Act authorizes the expansion of activities authorized under the YouthBuild program to include many activities authorized under the WIA Title I youth formula program. This rule maintains all the goals of the YouthBuild program as originally developed under HUD, but shifts the emphasis to education and skills training for at-risk youth participants. The Department will continue to support the development of affordable housing which was a goal of the HUD program.
The Transfer Act retains the out-of-school and age requirements that were in the Cranston-Gonzalez Act for YouthBuild, targeting eligible youth who are school dropouts and are between the ages of 16 and 24 years old. The Transfer Act further provides that at least 75 percent of participants must be school drop-outs who are members of low-income families, foster care youth, youth offenders, youths with a disability, children of an incarcerated parent, or migrant youths. In addition,
We have administered the YouthBuild program, including making grants, since the passage of the Transfer Act. In drafting the Notice of Proposed Rulemaking (NPRM), we relied on the knowledge gained from administering the program, along with the experience gained in developing the WIA Youth Program. Consistent with the Transfer Act, the rule incorporates technical modifications to the YouthBuild program to make it consistent with WIA job training, education, and employment goals. Moreover, the rule authorizes education and workforce investment activities such as occupational skills training, internships, and job shadowing, as well as community service and peer-centered activities. In addition, the rule describes how we will use performance indicators developed for Federal youth employment and training programs to enhance the accountability of YouthBuild programs.
On August 27, 2010, ETA published the YouthBuild NPRM at 75 FR 52671 (Aug 27, 2010). The NPRM explained our main focus is to prepare at-risk youth for employment, although the construction and rehabilitation of affordable housing continues to be a major component of the YouthBuild training program. Therefore, the NPRM increased the emphasis on the education and occupational skills training provided by YouthBuild programs. Specifically, the NPRM proposed that the occupational skills training offered in YouthBuild programs must begin upon program enrollment and be tied to the award of an industry-recognized credential; i.e., the National Center for Construction Education and Research (NCCER), the Home Builder's Institute's (HBI) HPACT curriculum, or the Building Trades Multi-Craft Core curriculum. Additionally, the NPRM placed emphasis on coordinating training with registered apprenticeship programs, which will allow participants to enter such programs upon exiting YouthBuild.
The NPRM proposed the use of some YouthBuild funds to pay for supervision and training costs to allow participants to develop skills and obtain work experience in the rehabilitation or construction of community buildings and other public facilities. The NPRM advanced these and other new activities to better assist at-risk youth in preparing for employment.
Finally, in the NPRM, we solicited comments on whether YouthBuild should continue to focus on construction skills training or whether skills training should be expanded to other industry areas.
The comment period for the NPRM was open from August 27, 2010 to October 26, 2010. We received twenty-nine comment letters in response to the NPRM. The commenters represented a broad range of constituencies for the YouthBuild program, including seven private citizens, five local and community employment and training organizations, two union organizations, five local YouthBuild programs, two local governments, two Federal agencies, three state governments, one advocacy organization, and two individuals with YouthBuild U.S.A.
The comments raised a variety of concerns, some general and some pertaining to specific provisions or specific proposals. After reviewing the comments, we have modified some provisions and retained others as originally proposed in the NPRM. The issue most frequently raised in the comments concerned the NPRM's specific proposals for various program requirements. Most of these comments were requests for clarification about specific program requirements, such as the time allowed for follow-up services for program participants. Several commenters also addressed the question whether the YouthBuild program should continue to focus on construction skills training or if we should allow other occupational skills training in YouthBuild.
We received several comments that were beyond the scope of the proposed rule and included issues with the YouthBuild Solicitation for Grant Applications, published at 73 FR 58653 (October 7, 2008), and individual State laws. These are issues that cannot be resolved or implemented through this regulatory process or are not within the Department's purview. Additionally, comments submitted in a manner inconsistent with the specific directions of the NPRM or submitted after the comment period closed were not considered.
When developing this final rule the substantive issues raised by the comments were taken into careful consideration. These issues and our reasons for developing the final rule as it is written are discussed below.
Sections 672.100, .105, and .110 deal with the purpose, scope, and definitions related to the YouthBuild program. Significantly, under § 672.100, we emphasize that YouthBuild is a workforce development program in addition to a program that aims to increase the amount of affordable housing for low-income and homeless individuals and families. This emphasis implements one of the primary goals of the Transfer Act, which, in moving the administration of YouthBuild from HUD to the Department, was to make YouthBuild a program that focuses on occupational skills development.
This section describes the YouthBuild program as administered by the Department. One commenter requested either an expansion or clarification of the description of the YouthBuild program. The commenter suggested changing the description of the program as being for secondary school dropouts, to read “at least 75 [percent] of whom have left school without a diploma.” The commenter states this would make it clear at the outset that not all YouthBuild participants must lack a High-School diploma.
We believe that § 672.300 clearly articulates who may be an eligible participant by stating that at least 75 percent of participants must lack a High-School diploma, while no more than 25 percent of participants may have a diploma but are still basic skills deficient as defined in section 101(4) of WIA. Nevertheless, we have accommodated the commenter's concern by adding the words “most of whom” to make clear that there are some YouthBuild participants who need not be high school dropouts.
This section details the goals of the YouthBuild program. We received four comments from two commenters on this section. We changed § 672.105(a) by emphasizing that YouthBuild participants should obtain education and training for high-demand and local
The commenter also recommended changing § 672.105(a)(3) from the goal being to “reduce the rate of homelessness in communities with YouthBuild programs,” to the goal being “to expand the supply of permanent affordable housing * * *” The commenter believes the change is more accurate and is a direct reflection of the Transfer Act. We agree with the commenter and have changed the language at § 672.105(a)(3) to more accurately reflect the language of the Transfer Act.
The other commenter requested that the final rule articulate the importance of recruiting young women and young women with children as provided in the Transfer Act. The commenter went on to explain that special efforts to recruit young women into YouthBuild are essential to increasing their participation because few women are exposed to the construction trades and other non-traditional occupations while they are in school.
We agree with the commenter about the importance of recruiting young women and participants with children but we don't feel it is appropriate to amend the statement of goals. Instead, we will consider the effort to recruit, or plans to recruit young women put forth by YouthBuild programs and applicants as an important factor in the Solicitation for Grant Application selection process.
This section explains the definitions applicable to this final rule. We received comments, which we discuss below, on several of the definitions. Those definitions on which we did not receive comments have been adopted as proposed.
In part, the proposed definition of “alternative school” reads, “An ‘alternative school' must be recognized by the authorizing entity designated by the State, must award a high school diploma and, must be affiliated with YouthBuild programs. * * *” One commenter pointed out that some YouthBuild programs are recognized by authorizing entities but only offer GEDs while other YouthBuild programs offer GEDs and High School Diplomas and are recognized by authorizing entities. The commenter goes on to ask what the impact of these regulations would be on the alternative school status of those YouthBuild programs that offer GEDs and High School Diplomas.
We have changed the rule so that schools offering both a high school diploma and a GED, when authorized by the appropriate entity, can be included as an alternative school. For the purposes of participation in a sequential services strategy, schools that offer only High School Diplomas will continue to be considered alternative schools. In order for a YouthBuild Program's academic component to meet the definition of a “sequential service strategy,” as defined in § 672.110, the program's alternative school must award a high school diploma and not a GED. This allows YouthBuild programs with alternative schools to enroll out-of-school youth participants into their alternative school prior to enrollment into their YouthBuild program, while enabling them to maintain their out-of-school youth eligibility at the time of their enrollment into the YouthBuild program as long as it is part of a “sequential service strategy.” This flexibility is only granted to YouthBuild programs with alternative schools that award high school diplomas and not GEDs because research establishes that individuals who receive a high school diploma have a higher long-term earning potential than individuals who receive a GED. GEDs are also generally achieved by participants within the first year of service. The flexibility for YouthBuild grantees to use a “sequential service strategy” is an incentive for more programs to move towards high school diploma granting academic components, and supports earlier dropout recovery of future YouthBuild participants and prevents programs from having to drop youth out of their program so they can then reenroll as an out-of-school youth.
We received several comments seeking to expand the definition for “Community or Other Public Facility.” The NPRM explained that “community or other public facility” means those facilities which are publicly owned and publicly used for the benefit of the community. Examples include public-use buildings such as recreation centers, libraries, public park shelters, or public schools. This term may also encompass facilities used by the program but only if the facility is available for public entry and use.
One commenter wanted the definition to include churches or faith-based facilities. Another commenter agreed that buildings owned by faith-based, non-profit organizations should be included in the definition. Another commenter also suggested that if the definition of community and public facilities could be expanded, it would increase opportunities for employment training and community benefits. The commenter further stated that proposed projects should be individually evaluated based on several factors including the extent of rehabilitation or construction required to make the project habitable, the project's likelihood to provide comprehensive training value to young people, and the project's projected value to the broader community, regardless of ownership or public use. Two other comment letters contend that since the Transfer Act does not state that “community or other public facilities” must be publicly owned, the definition should include privately held non-profit facilities.
We agree with the commenters and revise the definition of “community or other public facilities” to include privately owned non-profit facilities, including facilities owned by faith-based organizations, as well as publicly owned facilities, as long as those facilities are available for public entry and used for the benefit of the public. While grant funds can be used in the rehabilitation or construction of buildings owned by faith-based organization, funds may not be used to rehabilitate or construct a facility, or portion of a facility, that will be used for religious purposes.
Any work done by YouthBuild participants on a community or public facility must be directly related to training for YouthBuild participants and follow the relevant Office of Management and Budget's (OMB) cost principles for grants. (OMB Circulars A–87, 2 CFR part 225 and A–122, 2 CFR part 230). Under these cost principles, any activity funded with grant funds
However, costs for normal maintenance and upkeep that does not add to the value or prolong the useful life of land, buildings, or equipment are allowable costs not subject to pre-approval by the Department. 2 CFR part 225, Appendix B, § 25; 2 CFR part 230, Appendix B, § 27.
The NPRM contemplates that buildings privately owned by non-profit grantees fall within the definition of “community or other public facilities.” We do not think that there is any reason to distinguish between grantee and non-grantee owned non-profit facilities that are privately owned, thus we agree with the commenters that the definition should be expanded. However, proposed projects on privately owned facilities, including facilities owned by faith-based organizations, must meet the public entry and use restrictions outlined in the definition and the cost principles already discussed.
We received no comments on the definition for “homeless individual”. However, the definition for “homeless individual” from the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11302) provided in the NPRM was amended before publication of this final rule by sec. 1003(a)(2) of the Homeless Emergency Assistance and Rapid Transition to Housing Act of 2009. 42 U.S.C. 11302(a). As a result, we are changing the rule text by removing the detailed definition of “homeless individual” to cite only the McKinney-Vento Homeless Assistance Act in the final rule to incorporate any future changes in the definition. Therefore, for the purposes of YouthBuild, the definition of “homeless individual” at Section 103 of the McKinney-Vento Homeless Assistance Act applies.
One commenter described the definition of “Indian'” and “Indian tribe” as too limiting and potentially offensive to Native Alaskans. The commenter suggested that we replace the term “Indian and Indian Tribe” with “American Indian/Alaska Native. We appreciate the sensitivity explicit in the commenter's suggestion. However, in this instance we are constrained from changing the term because the final rule reflects the Transfer Act's adoption of the definitions of these terms from sec. 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450(b)).
In the NPRM, we defined “Low-Income Family” as a family whose income does not exceed 80 percent of the median income for the area unless the U.S. Secretary of Labor (Secretary) determines that a higher or lower ceiling is warranted. This term is defined in the Transfer Act. One commenter wanted the rule to increase the median income level from 80 percent of the median income for the area to 120 percent of the median income for a low-income family, due to the difficulty some YouthBuild programs are having finding low-income homebuyers.
We have determined that the definition of “Low-income family” will remain unchanged in the rule to mean a family whose income does not exceed 80 percent of the median income for the area unless the Secretary determines that a higher or lower ceiling is warranted. The term “low-income family” was taken from United States Housing Act of 1937 (42 U.S.C. 1437a(b)(2)) and is a widely recognized term and metric. However, at the discretion of the Secretary, we may consider temporary increases in the median income level based on economic conditions. If such a temporary increase is determined to be necessary it will be done so in future SGAs or through guidance.
Further, we have made several non-substantive changes to this definition to improve readability.
We received one comment on the definition of “Migrant Youth.” The commenter stated that the proposed definition was too limiting because it did not include workers affiliated with the seasonal fishing industry. We understand the commenter's concern with the possible limitations of the definition of “migrant youth.” Because YouthBuild is a WIA-funded program, we first considered using a definition for “Migrant Youth” that incorporates the WIA definition for migrant farmworker from the National Farmworker Jobs Program found at WIA Sec. 167(h)(3). Under WIA, a “Migrant seasonal farmworker” is a seasonal farmworker whose agricultural labor requires travel to a job site such that the farmworker is unable to return to a permanent place of residence within the same day. (WIA sec. 167 (h)(3)(A)(4)(A)). However, we believed that using the definition found in the statute limited the number of potential program participants. Accordingly, we chose to adapt our definition of “Migrant Youth” from the broader definition of “migrant farmworker” found in Farmworker Bulletin 00–02, which relates to eligibility in the Migrant Seasonal Farmworker Youth Program, and expands on the definition of “migrant seasonal farmworker” found in WIA. Using this broader definition allows a larger population of potential YouthBuild participants to be served by the program. The definition of “migrant farmworker” found in Farmworker Bulletin 00–02 uses the North American Industry Classification System (NAICS) codes to determine whether or not a worker is a “migrant farmworker.” The definition of “migrant farmworker” in the Farmworker Bulletin excludes workers whose work is classified as “aqua-culture,” which includes the seasonal fishing industry. In addition, using the definition of “migrant seasonal farmworker” from Farmworker Bulletin 00–02 allows for consistency throughout ETA programs, as both the National Farmworker Jobs Program and the Office of Foreign Labor Certifications use similar definitions that exclude the seasonal fishing industry. Because we have based our definition on Farmworker Bulletin 00–02, and because that definition does not include workers in the seasonal fishing industry, we have decided not to include seasonal fishing industry workers as part of the definition of migrant youth.
We received no comments on the remaining definitions, and therefore have adopted each as proposed.
This subpart deals with the selection process, the funding process, and the application process for potential grantees to apply through an SGA.
We did not receive any comments on this section. The final rule adopts the regulation as proposed.
We did not receive any comments on this section. The final rule adopts proposed regulation as proposed.
This section describes the criteria for selecting grantees. One commenter requested that we offer separate funding for rural programs, urban programs, and new programs as was the case when HUD administered YouthBuild. The commenter maintained that it is difficult for rural programs to compete against urban programs. Additionally, the commenter believed the minimum amount of funds for which a program can apply is an amount too large for smaller YouthBuild programs. We acknowledge the commenter's concerns in that some rural programs may have difficulty in obtaining grant awards because often the suggested minimum amount of a YouthBuild grant award is more than some rural programs need to operate successfully. We believe, however, that the commenter's concerns are addressed in the annual SGAs. When awarding grant funds the Grant Officer considers a variety of factors, including geographic diversity and the need for affordable housing in an area. Additionally, YouthBuild SGAs do not have a minimum level of funding which applicants must request; the minimum amounts in the SGA are only suggested amounts. Applicants may request an amount of funding that is less than the suggested minimum grant award amount.
Two commenters expressed some difficulties in obtaining data addressing the required indicators of need, poverty, unemployment rates, and high school drop-out rates referenced in § 672.210(c). They further related that there is no standardized methodology for calculating unemployment or drop-out rates among States and local communities. The commenters believe this situation makes it unfair to rate applications from different regions against each other.
We understand it may be difficult to obtain data which demonstrates the various indicators of need in § 672.210(c) for different State and local communities. However, contrary to the commenters' assertion, we do not evaluate grant applications by comparing them to one another or measuring them against other grant applications. Each respective YouthBuild application submitted in response to an SGA is rated only against the criteria established in the SGA. Furthermore, we do not mandate that applicants obtain data which demonstrates the various indicators of need from specific sources. YouthBuild applicants are free to use whatever source they prefer for data showing indicators of need as long as they can demonstrate in their grant application the validity of the data and its accuracy in showing he community's need for the YouthBuild program.
One commenter suggested adding “counseling and case management” to § 672.210(d) which reads, “[t]he commitment of an applicant to provide skills training, leadership development, and education to participants.” The commenter contends that without the commitment of personal support for the individual participant offered by YouthBuild programs through counseling and case management, the ability of participants to achieve the desired outcomes would be dramatically reduced.
We agree that the offer of counseling and case management is important for participants' success in YouthBuild. We also believe that these services are being provided by YouthBuild programs as part of their commitment to provide skills training, leadership development, and education to participants. Furthermore, § 672.310(a)(2) details some of the eligible activities, including counseling services, that may be funded in YouthBuild programs. However, we agree with the commenter that counseling and case management should be included as a basis for selection in the grant application process. Accordingly, we have added counseling and case management to § 672.210(d) as part of the required selection criteria.
Two commenters proposed new language to be added to § 672.210(e). Proposed § 672.210(e) establishes that one, of many, selection criteria is, “[t]he focus of a proposed program on preparing youth for postsecondary education and training opportunities or in-demand occupations in the construction industry.” The commenters proposed that this section be changed to read, “[t]he focus of a proposed program on preparing youth for postsecondary education or jobs within their communities, including high-demand occupations and entrepreneurship opportunities.” The commenters stated the reason the change is necessary is because in rural and Native communities, “demand” occupations may not be reflected accurately in data due to the small size of many employers. Further, the complete absence of products and services in a community often reflects need but this need is not captured by actual employment data. One of these commenters suggests that these factors place programs in these communities in the awkward position of encouraging young people to leave their communities, and also may encourage young people to apply for jobs for which they have no transportation or cannot afford the transportation to access.
We agree with the commenters' concern. The selection criteria and the process through which grantees are selected, as stated at § 672.210(e), is specifically described in sec. 173A(c)(4)(E) of WIA. Section 173A(c)(4)(E) states that applicants will be judged based on “the focus of a proposed program on preparing youth for occupations in demand or postsecondary education and training opportunities.” Therefore, we have amended the text in § 672.210(e) by adding the word “local” to address the commenters' concerns about demand occupations.
Two commenters noted that rural and Tribal programs are disadvantaged by the criteria in § 672.210(f)(1) because they have limited partnership choices which affect the applicant's performance under the selection criterion that deals with an applicant's demonstrated ability to enter partnerships with various entities. One commenter went on to explain that the lack of One-Stop Centers and other workforce investment systems in rural areas and Tribal lands make it difficult for programs in these areas to seek partnerships with those entities as required in § 672.210(f)(1). To remedy this, the commenter suggested that Job Corps be added as a specific workforce investment partner in the rule.
We are aware that rural and Tribal programs may have limited partnership choices and that Job Corps would make a good partner for the YouthBuild program. However, we do not believe it is necessary to specifically mention Job Corps in the text of § 672.210(f)(1) because Job Corps is a One-Stop partner and applicants are already evaluated on the extent to which they propose to coordinate activities with such partners. Therefore, specifically adding in a Job Corps provision to this section would be redundant. To address the issue about potential partners that the commenter raised, we issued Training and Employment Notice (TEN) 50–08, on
We understand the difficult task of obtaining partnerships, especially for those applicants in rural areas or Tribal lands, this is why the workforce system coordination clause in § 672.210(f)(1) contains the caveat, “or the extent of the applicant's good faith efforts, as determined by the Secretary, in achieving such coordination”.” This clause allows the Grant Officer to credit an applicant's effort to obtain partnerships, even if that effort was ultimately unsuccessful.
One commenter suggested that we strengthen in § 672.210(i)(1) through (5) the emphasis on the quality and coordination of the partnerships and the nature of the partnering relationship, rather than on the number of partnerships. The commenter stated that, “while partnerships are desirable and often essential, both for delivering services and leveraging resources, we see risks in over-emphasizing and incentivizing partnerships as the way to deliver services.”
We believe that we have appropriate measures in place to prevent the over-emphasis on the number of partnerships versus the quality of partnerships in the grant selection process. In our SGAs, YouthBuild applicants are not rated simply on the number of partners, but also must demonstrate the level of commitment, the qualifications, and the abilities of the partners to contribute to participants' success, and the strength and the maturity of the partnership. Therefore, in assessing the selection criteria in § 672.210(i)(1) through (5), we seek to analyze the qualitative aspects of the described partnership and how likely the partnership will contribute to the overall success of a YouthBuild participant.
The same commenter suggested adding the adult justice system to proposed § 672.210(i)(4) which describes the extent to which an applicant should partner with the juvenile justice system, because many of the participants are classified as adults. Additionally, the commenter suggested that we add a paragraph to § 672.210(i)(4) stating that a selection criterion for YouthBuild applicants is the demonstrated service they can receive from partnerships with the adult and juvenile justice system for referrals of eligible participants through diversion or re-entry from incarceration.
We agree with the commenter's two suggestions and have made the suggested changes in the rule, because many possible YouthBuild participants are classified as adults in the justice system. Consequently, it would be the adult justice system that would be able to provide assistance with reporting recidivism rates and referrals of these potential participants. This will enable YouthBuild to better attract participants from its targeted population.
This section describes the process and timeline for notifying a grant applicant of a YouthBuild grant application approval or disapproval.
One commenter recommended the addition of the following: “The [Department] will establish a threshold level of points required to be eligible for funding, and will make known what was the actual cut-off point for funding, if it was above that threshold as a result of high quality competition, in each round. Upon request the [Department] will provide the specific scores for each proposal and written feedback regarding the weaknesses of the proposal. It will also accept appeals from applicants who can demonstrate after reviewing the scores that a specific error in scoring was made on a technical point, such as whether a particular item of required documentation was provided. If the Secretary determines a correction is warranted, the Secretary may make that correction from subsequent year appropriations.”
We find that these suggestions are unnecessary. As explained in our YouthBuild SGAs, proposals that are timely and responsive to the requirements of the SGA are rated against listed criteria by an independent panel comprised of representatives from the Department, HUD, the U.S. Department of Justice, the U.S. Department of Health and Human Services, and other peers. The ranked scores serve as the primary basis for selecting applications for funding, in conjunction with other factors such as: urban, rural, and geographic balance; whether the areas to be served have previously received grants for YouthBuild programs; the availability of funds; and which proposals are most advantageous to the Department. Also in the SGAs, we state that, upon request, we provide feedback to applicants on portions of their specific application we believe can be improved. However, we do not provide guidance on any portions that we believe are strengths in an application. We take this approach because we understand that what works for one grant applicant may not work for other grant applicants that have different challenges and needs that YouthBuild may help in addressing. Further, we do not provide a threshold for scores in the regulation or in the current SGAs because the numerical scores are only one part of the overall final award decision, other factors (listed above) are also brought into consideration. Also, the Department has routinely received enough high scoring applications submitted in response to SGAs, thus there is no need to set a threshold score to ensure that enough high quality grants given out. In addition, an applicant has a right to appeal the decision on their grant application under sec. 186 of WIA. Finally, the Secretary reserves the right to make any corrections she believes necessary in awarding grants for YouthBuild.
Subpart C deals with eligibility determinations of YouthBuild program participants, required program activities, designated minimum timeframes for certain activities, and services that must be carried out by programs.
Section 672.300 implements sec. 173A(e)(1) of WIA. This section defines who is eligible to become a YouthBuild participant. Specifically, § 672.300(a)(1) through (3), implementing sec. 173A(e)(1)(A) of WIA, states that an individual eligible for YouthBuild participation must be between 16 and 24 years old, a school dropout or a dropout who is enrolled in an alternative school as defined § 672.110, and either is a member of a low-income family, in foster care, a youth offender, disabled, a child of an incarcerated parent, or a migrant youth. Under sec. 173A(e)(1)(B) of WIA no more than 25 percent of the participants in a particular YouthBuild program may be individuals that do not meet the criteria described above, provided that they meet one of the exceptions listed in sec. 173A(e)(1)(B) of WIA. These exceptions are set out in § 672.300(b) of the final rule.
One commenter suggested increasing YouthBuild's current exception in § 672.300(b)(1) for participants who have a high school diploma or GED and an educational deficiency from 25 percent to 40 percent, because this would aid recruitment and broaden YouthBuild's participant base, and enable YouthBuild programs to move even more participants more quickly
One commenter suggested that the rule include guidance on what documentation is acceptable for determining the eligibility of a participant.
We do not view the regulations as the proper place to provide detailed operational guidance. The regulations set the general rules governing the YouthBuild program and we provide administrative guidance to provide the detailed operational procedures. The type of documentation we accept to establish participant eligibility is broad, and often changing due to changes made at the Federal, State, or local level to the forms required, changes in the relevant legal definitions at the Federal, State, and local level, or because of other changes to the documentation that we currently accept. By including this information in the regulation, we could not easily adapt to the changes described above and could not make the changes that we believe are necessary in a timely fashion. In addition, upon award of a YouthBuild grant, each grantee is provided with a Department-issued YouthBuild handbook that helps grantees understand what documentation is acceptable to be used to determine a participant's eligibility. This handbook also provides eligibility guidelines for grantees to use when selecting participants. Finally, each grantee is required to have in place written policies it will use to determine the eligibility status of a perspective participant.
Another commenter recommended that rather than calling the young people “dropouts,” the regulation should describe them as young people who left school without a diploma. The commenter reasoned that language used to describe the participants should carefully avoid labels of all kinds, and in many quarters “dropout” has a negative connotation. We understand the commenter's concerns about labeling participants with a word that could have a negative connotation. However the term “drop out,” as currently used in WIA sec. 173A(e)(1)(A)(iii) and as defined in WIA sec. 101(39), is a clear, fair, commonly-used and concise term used to describe the actions of youth who voluntarily left high school without a diploma.
We did not receive any comments on this section. The final rule adopts the regulation as proposed.
This section implements sec. 173A(e)(3) and 173A(c)(2)(A) of WIA, which outline new education and workforce investment activities. These activities, newly permitted under the YouthBuild program, consist of postsecondary education services and activities, including tutoring, study skills training and dropout prevention activities; other paid and unpaid work experiences, including internships and job shadowing; alternative secondary school services, occupational skills training, and counseling services and related activities, such as comprehensive guidance and counseling on drug and alcohol abuse and referral.
One commenter had a general concern that the wording of § 672.310 may leave some YouthBuild programs and applicants with the impression that it will be at the individual program's discretion as to whether or not they will provide certain services. The commenter is correct that the intent of the regulation is to provide program operators with some discretion over the services they may provide. While a YouthBuild program must offer several required services, we allow some variation in the overall services available in a program because we do not believe that a one-size fits all approach would help programs be successful. We recognize that because YouthBuild is a nation-wide program, there will be differences between the needs and resources between regions and among individual programs. This is not to say that YouthBuild programs can pick and choose services in a vacuum. Grantees must structure programs so that at least 90% of the participants' time is spent on eligible education activities (50%) and eligible workforce investment activities (40%). YouthBuild Federal project officers monitor program progress and work with grantees to make sure that grantees' programs produce positive outcomes for the program and for the participants, while giving detailed information on required activities and allowable activities.
The same commenter stated that Mental Toughness is an important element that contributes greatly to cohesive culture–building, and motivates young people to engage with the program and with each other. Consequently, the commenter recommended that Mental Toughness/Orientation be mentioned in the regulations and that programs be allowed to use their grant funds for this activity. We agree that Mental Toughness can be an important component of a YouthBuild program. Because of its potential positive impact, we issued guidance on Mental Toughness/Orientation (Training and Employment Guidance Letter (TEGL) 14–09 issued on February 25, 2010), which discusses the allowable costs for initial intake or informal interviews with YouthBuild participants to gauge prospective participants and their readiness for the rigors of the YouthBuild program. While we recognize that Mental Toughness can have a very positive impact on programmatic and participant success, we do not feel it is appropriate to mandate this technique to all grantees. Since YouthBuild is a nation-wide program, there will be differences in the needs, resources, and approaches between regions and among individual programs.
One commenter recommended that we clarify that YouthBuild programs are permitted to use grant funds for post-secondary educational training costs where a participant completes secondary education while still enrolled in the program, or where a participant is otherwise ready for post-secondary study. Section 672.310(a)(1)(iv), which mirrors Sec. 173A(c)(2)(A)(iv)(IV) of WIA, provides that counseling and assistance in obtaining post-secondary education and required financial aid is an eligible education activity for grant funds and is available to the participant whether the participant is still in the program or has exited and is receiving follow-up services. The regulation follows the language of the statute. It is an allowable activity under § 672.310(a) for grantees to spend grant funds on post-secondary education costs described in § 672.530(e)(1) and (2). We urge grantees to use these funds reasonably for participants, both during their time in YouthBuild and after they exit and are receiving follow-up services, so that they may assist as many participants as possible with post-secondary education costs such as application fees or fees associated with financial aid. However, grantees have discretion to determine whether to spend grant funds to directly fund the costs of post-secondary education.
Another commenter recommended that funding rules should allow
One commenter wanted the final rule to offer participants a stipend for transportation because it would aid in their ability to participate successfully in a YouthBuild program. The commenter stated that many low to very low income individuals lack dependable transportation and that providing participants with a stipend for public transportation would improve successful outcomes. We agree with the commenter's understanding of the importance of transportation to the success of participants. The NPRM, at § 672.310(a)(4) would permit programs to use grant funds to provide supportive services, which includes aiding participants in obtaining transportation, including public transportation, to and from YouthBuild locations and worksites because it is considered a supportive service under WIA sec. 101(46). We have carried this provision into the Final Rule.
Another commenter wanted the final rule to provide guidance on how programs are authorized to provide funds for childcare. Childcare is another supportive service available under § 672.310(a)(4).
One commenter stated that the 10 percent restriction on grant funding in § 672.310(c)(2) should be increased to allow for additional exposure to other sectors of the construction industry beyond residential construction. We are constrained by WIA sec. 173A(c)(2)(C), which states that no more than ten percent of grant funds may be used for the supervision and training for participants in the rehabilitation or construction of community and other public facilities.
We received two comments about the amount of time a participant is permitted to be enrolled in the YouthBuild program. One commenter wanted to know if there was an exception to the requirement that participants must be offered full-time participation for a period of at least six months and not more than 24 months. Section 173A(e)(2) of WIA provides no exception to this requirement. Therefore we cannot permit an exception in the final rule.
The other commenter requested that the rule discourage programs from establishing their program length at the minimum level because many YouthBuild students' incoming reading and math skill levels and workforce readiness are typically so limited that YouthBuild participation and program engagement longer than six months is required to help improve these skills. The same commenter went on to recommend that the rule make it clear that every enrollee may participate for up to 24 months, or for however long the program receives funding, whichever is shorter.
The suggested change is not needed. Because we are focused on outcomes within the requirements of the Transfer Act, we work with programs to ensure participants' success regardless of the time spent in a YouthBuild program. We understand that the various programs and participants face different challenges and, therefore, we encourage programs to work towards successful outcomes for participants, whether occurring after six months or longer. In addition, § 672.325 requires that each participant exiting a YouthBuild program be provided follow-up services for a minimum of nine months to assist participants in obtaining or retaining employment, or applying for and transitioning to post-secondary education or training. Therefore, each participant who exits a YouthBuild program, even after only six months, receives additional services to help ensure a successful transition into employment or post-secondary education.
This section explains the required structure of YouthBuild programs so that participants in the program are offered specific educational and related services and activities during at least 50 percent of their participation time, workforce investment activities during at least 40 percent of their participation time, with the 10 percent time remaining designated for YouthBuild participants to conduct leadership development and community service activities, or additional workforce investment activities or educational activities. The 40 percent workforce investment activities participation time is a new requirement under sec. 173A(e)(3)(B) of WIA.
We received two comments on the 10 percent time limit designated for YouthBuild participants to conduct construction skills training and construction on affordable housing and public facilities. One commenter suggested that YouthBuild programs be permitted to use the 10 percent time limit for YouthBuild participants to work on community projects to include the opportunity for participants to work on commercial projects. Both commenters stated that such a broadening of the use of the additional time could serve to bring YouthBuild programs and Registered Apprenticeship programs into closer mutual understanding and alignment and allow additional exposure to these other sectors of the construction industry.
We agree with the commenter that permission to work on commercial projects would expose participants to other sectors of the construction industry. Therefore, we will allow YouthBuild participants to work on commercial projects as long as those commercial projects directly involve the building of affordable housing for low income and homeless families and individuals. One of the goals of the YouthBuild program, as articulated in sec. 173A(a)(4), is to increase the amount of permanent affordable housing for homeless individuals and low-income families. Therefore, due to the limited amount of time for YouthBuild participants to do construction, coupled with our goal of increasing affordable housing for homeless individuals and low-income families, we will permit participants to work on public facility-based projects and commercial projects, as long as those commercial projects are building affordable housing.
In response to comments solicited in the NPRM, we have determined that YouthBuild programs may offer participants other occupational skills training besides construction skills training. Each YouthBuild program is required to offer construction skills training, but participants do not need to
In addition, we will continue to require YouthBuild programs to provide community service and leadership development opportunities for every YouthBuild participant. We expect that, when possible, YouthBuild programs will align community service projects and leadership development activities with the participant's occupational training and will provide participants with an opportunity for community service relevant to their training, allowing participants to use their skills and training to serve their communities. For example, relevant community service opportunities for a participant pursuing health care career training might include volunteering at a local clinic or volunteering to educate the community about preventative health care. Other current examples include participants volunteering at a community food pantry, tutoring younger youth, participating in a graffiti removal campaign, cleaning a city park, or organizing and speaking at voter registration drives.
These community service opportunities should intend to address real needs in the community. It is expected that participants will play a key role in the design, selection, and implementation of service projects. Additionally, participants are encouraged to perform additional community service or volunteer in local non-profit organizations independent of the YouthBuild program.
We discuss the options we considered for expanding occupational skills training beyond construction skills training in detail below.
In the NPRM, we explained that current grantees have expressed an interest in expanding their program training beyond construction to other occupational skills training because YouthBuild programs have difficulty in placing participants in the construction industry when demand for construction workers in a local area is low. Additionally, we learned from grantees that many youth can benefit from the YouthBuild program, but are not interested in ultimately entering careers in the construction industry. Because of these concerns, we asked for comments in the NPRM on whether YouthBuild should continue to focus on construction skills training or if the skills training should be expanded to other industry areas.
In response, we received fourteen comments on the issue of whether to allow YouthBuild programs to provide occupational skills training in addition to construction skills training. One comment was outside the scope of this rulemaking. Ten commenters stated that we should allow programs to focus on other occupational skills training besides construction. Three commenters wanted to keep the focus of occupational skills training on construction in YouthBuild programs.
Based on our analysis of the comments, we developed three options. The first option was to maintain the current program approach which is to allow construction skills training only. The second and third options both involved allowing other occupational skills training in YouthBuild besides construction. The second option would require some construction skills training as a prerequisite for participants to undergo other occupational skills training. The third option allowed participants to do other occupational skill straining without first engaging in construction skills training.
Three commenters advocated allowing only construction skills training in YouthBuild. One commenter stated that it was important to support youth who have the technical skills and industry-recognized credentials to fill future jobs in the construction industry. This commenter went on to suggest that YouthBuild participants should be helped to understand that many skills acquired through YouthBuild constructions skills training are transferable to other industries.
Another commenter supported maintaining construction skills training because the growing U.S. population and the aging building environment in the U.S. will combine to drive demand for construction workforce development efforts like YouthBuild. This commenter also stated that the increasingly complex skills necessary for construction due to the energy efficiency and sustainable construction movement will drive demand for programs like YouthBuild. The commenter also addressed the benefits of using construction skills training in YouthBuild by explaining that it provides a step-by-step learning opportunity with well-defined knowledge benchmarks. The commenter explained that once construction skills were learned, the participant could immediately apply this knowledge in the participant's non-construction work experiences. The commenter also stated that through construction skills training, YouthBuild participants could see tangible results of their training. Furthermore, the commenter felt that YouthBuild participants would be better prepared to address home maintenance or repair issues themselves through construction skills learned in training. Finally, this commenter addressed the statement made in the NPRM that many YouthBuild participants are not interested ultimately in entering construction careers. The commenter said that participants are not limited to placement in construction occupations and that plans targeting the participant's ultimate career goal could be part of an individual's “placement plan”.
The third commenter in support of only construction skill training stated that from personal experience in operating a YouthBuild program for more than a decade, the commenter has found that participants may discover an interest in careers other than construction as a result of construction skills training in YouthBuild. The commenter also stated that emphasizing construction skills training enables programs to teach a work-ethic, provide hands-on training in a demand occupation that may lead to apprenticeship opportunities, increase the supply of affordable housing for low-income and homeless individuals and families, and promote and assist students interested in other in demand occupations after exiting YouthBuild.
While we agree with many of the commenters' arguments, we have decided not to continue to require YouthBuild grantees to provide only construction skills training for a number of reasons. Sec. 173A(c)(2)(A)(ii) of WIA allows other occupational skills training. Additionally, sec. 173A(a)(1) states that one of the purposes of the program is to enable participants to obtain the skills necessary to achieve economic self-sufficiency in occupations in demand, which may not include jobs in the construction industry in a local area. We agree with the commenters that a program allowing for other occupational skills training besides or in addition to construction skills affords YouthBuild programs and participants more flexibility in matching available training opportunities to participants' interests. This approach also allows programs to try and match skills training with local job market data when appropriate or possible, to develop a program better suited to both the needs of the community and the interests of the participants, which we believe will lead to better employment outcomes for participants.
Four of the commenters recommended allowing other occupational skills training but stated that construction skills training should remain a core or primary component of YouthBuild training. Three of the commenters recommended that YouthBuild should continue to focus on construction skills training as the primary mode by which participants learn job-related and leadership skills. One of these commenters stated that some programs have identified innovative and unique opportunities to impart in-demand skills to participants including agricultural and forestry skills, technology-based skills like computer repair, cosmetology, and entrepreneurship skills. This commenter further recommended that YouthBuild programs should be provided with an approved list of other occupational skills training based on sound models proposed or implemented by local programs, including rural and Native-serving programs. However, this commenter stressed that construction [skills training] should continue to be the primary mode by which young people learn job-related and leadership skills. The commenter went on to suggest that any other occupational skills training “track” should be pre-approved by the Department and should be secondary to construction skills training.
Another commenter supported allowing YouthBuild programs the flexibility to include additional high-demand, service-oriented skills training that would provide access to entry-level jobs and post-secondary placement in promising career tracks. However, the commenter stated that additional occupational skills training should be offered as an enhancement to accompany constructions skills training, not as a replacement for construction as the core element of YouthBuild training. The commenter stated that construction skills training continues to be of value to YouthBuild participants because it is attractive to young men who are underrepresented in youth employment programs. The commenter pointed out that more than 30 percent of YouthBuild graduates enter construction jobs and that construction careers should recover as green building expands. Finally, the commenter asserted that Public Housing authorities seek to hire disadvantaged youth to “green” public housing, and construction companies will hire youth with criminal records who have gotten back on track.
We understood these four comments as advocating an approach that would make construction skills training a required element for all YouthBuild participants. While we appreciate the approach these commenters recommend, we have determined that we will not require YouthBuild programs to make construction skills training a prerequisite for other occupational skills training. We agree with the commenters that construction skills training is important to YouthBuild because it is a vehicle that allows programs to teach transportable skills sets to participants while imparting them with experiences in team work in a community service context. We want to make it clear that, based on sec. 173A(c)(2)(A)(i) of WIA, YouthBuild programs have to make construction skills training available as a part of every program. However, when possible, we believe that participants, working with YouthBuild administrators and educators, should able to make a decision about the occupational skills training they want to undertake. Feedback received from several YouthBuild programs suggests this approach, matching training opportunities based on local, in-demand jobs with participants' interests, will lead to better educational and job placement outcomes. We will work with YouthBuild programs to develop innovative job training programs as one commenter suggested.
Six commenters recommended that YouthBuild programs should be allowed to train participants in other occupational skills besides construction without first going through construction training.
Of the six commenters that recommended a change from construction skills training to other occupational skills training, four of these commenters cited the depressed construction industry labor demand as a reason to expand the skills training in YouthBuild. Two of these commenters went on to explain that limiting skills training in YouthBuild to construction work harms existing skilled workers by reducing their ability to find a job in a time of high unemployment in the construction industry since there is a surplus of construction workers seeking limited job opportunities.
Another commenter stated that workforce training in construction does not offer participants useful employment skills to enter the labor market in communities where there are few or no jobs in construction. This commenter explained that allowing YouthBuild programs to tailor the training offered to more closely mirror employment opportunities available within local labor markets would increase the number of participants who successfully achieve job placements after completion of the program.
Additionally, three of the commenters cited the lack of participant interest in construction skills training as a basis for supporting other occupational skills training. Another commenter stated that, in one particular YouthBuild program, most female students, when asked, preferred a different career track than construction. One commenter stated that the heart of YouthBuild is a project-based learning environment and that construction skills training is simply one method of conducting it. Furthermore, the commenter believed that because participants' needs, interests, and abilities may not support construction skills training, grantees should be given flexibility to train young people for any high demand field, as long as programs can demonstrate use of an effective project-based learning environment. This commenter stated that what is essential to the YouthBuild program is that participants' experiences in YouthBuild include hands-on training that meet real community needs in a team-based setting.
In response to the comments received, we have carefully considered the issue of whether to expand the skills training offered by YouthBuild from construction skills to other occupational skills training. As discussed, we have determined that we will allow other occupational skills training in YouthBuild programs, because we believe that allowing programs to be able to match job training opportunities with local, in-demand jobs will lead to more successful employment outcomes for YouthBuild participants. This will also allow programs, when possible, a better way to match training opportunities with participants' interests. However, because the Transfer Act made clear that the YouthBuild program continues to be a construction training program, we have determined that YouthBuild programs must continue to offer construction skills training as an element in all YouthBuild programs.
Section 173A(c)(2)(A)(i) and (ii) of WIA permits grantees to use grant funds for workforce investment activities including work experience and skills training in rehabilitation and construction activities and occupational skills training. We have determined,
In addition, sec. 173A(c)(3)(B)(i) and (v) of WIA require grant applications to include information about the local labor market, including projections on career opportunities in growing industries and descriptions of educational and job training activities that will prepare participants for employment in in-demand occupations in local labor markets. We believe that allowing other occupational skills training in YouthBuild in addition to construction, especially for local in-demand occupations such as healthcare, “green” jobs, and information technology allows the Department and grantees to better achieve the purposes of the Transfer Act.
We will work to ensure that the other occupational skills training should lead to some benchmarked outcome such as a nationally recognized certificate or certification, an associate degree, or a recognizable skills achievement that will assist the participant in pursuing a sustainable career pathway. We will provide further guidance on this issue as necessary.
While we believe that occupational skills training can be a valuable part of any YouthBuild program, we stress that construction skills training remains a mandatory offering for all YouthBuild programs. Construction skills training is a project-based, easily benchmarked method for teaching occupational and teamwork skills that are transferable to virtually any part of the country. As we discussed in the NPRM, YouthBuild creates a sense of self-worth for its participants by providing job skills training in the construction industry and highlighting the important role that each individual can have on community development and engagement. In addition, youth can witness their success and contributions through the rehabilitation and construction of affordable housing for homeless individuals and families and low-income families. This provides a sense of accomplishment that many participants will experience for the first time through a YouthBuild program.
Another commenter suggested changes to § 672.320(a) and (b). The commenter felt the language in paragraphs (a) and (b) could lead to the misunderstanding that a program might be out of compliance if a participant leaves the program before actually participating in education or workforce investment activities at the specified percentages. The commenter pointed out that the operative word in the statute is “offered” and argued that programs should not be penalized for the actual levels of participation that are demonstrated by participants who do not complete the program. Finally, the commenter suggested modifying these paragraphs to read: “(a) Eligible education activities * * * during at least 50 percent of the program cycle in which they have enrolled;” and “(b) Eligible workforce investment activities * * * during at least 40 percent of the program cycle in which they have enrolled.”
We believe the language as written is sufficient to avoid any unfair penalties for non-compliance. The current language in § 672.320(a) and (b) focuses on the services that participants are offered during the time they participate in the program because it is the structure of the program and not participant activity in those services that governs compliance.
This section requires that follow-up services be provided to YouthBuild participants for a period of not less than 9 months but no more than 12 months after participants exit a YouthBuild program. One commenter wanted clarification whether the rule required that all participants be provided follow-up services or if only those participants that achieve placement were to be provided follow-up services. All participants that exit the program must be provided follow-up services, whether or not they achieve placement. The text of the Final Rule has been changed to clarify this provision.
Another commenter suggested that the follow-up period be no less than six months with the cap on follow-up periods being the end of the grant period. The commenter felt that some YouthBuild programs have excellent post-exit follow-up services, and that some participants require more intensive follow-up services. Similarly, another commenter wanted to extend the period of follow-up for up to two years. We agree that some participants need intensive services. However, the length of time allotted for follow-up services is set by law in sec. 173A(c)(2)(A)(vii) of WIA at a maximum of 12 months. Additionally, the 9 month minimum for follow-up services is essential for measuring programmatic outcomes. Specific outcomes for the program are measured in 3 quarter (or 9 month) increments. For participants and programs to be measured properly throughout their time in YouthBuild, a minimum 9 month follow-up period is required by the common performance measures.
Subpart D deals with the required performance indicators for grants, required levels of grant performance, grant reporting requirements, and grant reporting due dates.
This section explains the required indicators, such as certificate attainment, that must be reported by YouthBuild grantees.
One commenter recommended that OSHA–10, First-Aid/CPR, Weatherization Tactics, and the 48 hour HAZWOPER certificates all be considered recognized credentials and counted towards program performance. Another commenter asked about other industry-recognized credentials, particularly for weatherization and green construction or other green industries that may be applicable to YouthBuild and can be reported in the performance indicators.
We appreciate the time and effort necessary to earn these certificates and the benefits that accrue from them. Credential attainment is a common measure for WIA and other workforce programs. As a result, certifications that may be counted towards program performance must meet the requirements established in TEGL 17–05. This TEGL explains that the parameters for recognized credential are, “participation in secondary school, post-secondary school, adult education program, or any other organized program of study leading to a degree or certificate.” The parameters for credentials were further clarified in TEGL 15–10, which says that “a credential is awarded in recognition of an individual's attainment of measurable technical or occupational
Examples of industry-recognized credentials in the construction field include the credentials earned through the National Center for Construction Education and Research's program, the Home Builder's Institute's (HBI) HPACT curriculum, and the Building Trades Multi-Craft Core curriculum, are the ones most widely used throughout YouthBuild. Examples of credentials that are recognized in industries other than construction include, Certified Nursing Assistant, Certified Java Programmer, National Institute for Automotive Service Excellence Certificate, Certified Novell Engineer, and industry-recognized licensure. While these lists are not exhaustive, they give a few examples of credentials that would qualify for the performance measures.
This section explains that expected levels of performance for each of the common performance indicators are national standards that will be established at a later date and will be provided in separately issued guidance.
Three commenters requested that we consider basing performance level expectations on peer group data, specifically rural, urban and tribal data, and or statewide data or negotiations for other WIA programs, and that accommodations for sustained economic downturn be factored into these expectations in some manner. One commenter suggested that sustained economic distress (which can vary regionally) and urban, rural and tribal data warrant less uniform and more individualized performance level expectations without compromising the goal of continuous improvement in performance. Additionally, according to a commenter, performance measures should be, in part, based on average entrance scores—not just Educational Functioning Levels (levels that measure a defined set of skills and competencies as developed by the U.S. Department of Education, 34 CFR 462.3), and on placement outcomes as well. One of the commenters additionally recommended that all students should be required to meet the outcome measures for literacy and numeracy, but that only the more advanced students should be held to criteria concerning academic or occupational credentials and placement.
We have determined it is not necessary to change the performance measures. In 2006, we issued TEGL No. 17–05, which dealt with Common Measures and performance accountability in ETA programs such as YouthBuild. This guidance set forth one set of measures to be used for common measure performance purposes. Furthermore, this TEGL describes the participant information that must be collected and reported for ETA programs that will be used to assess the performance of grantees under the common measures. We appreciate the commenters' concerns but the purpose a common set of measures that apply across similar programs is to enable us to compare the accomplishments of different programs and to determine which strategies are successful so that we can apply them to improve similar programs.
Developing individualized performance targets based on individual and unique situations would result in performance reports based on varying definitions and methodologies. This would make it difficult both to assess the YouthBuild program as a whole and to determine YouthBuild's impact on the workforce system. Furthermore, since the Department began administration of the YouthBuild program, we have held the program to goals that are higher than the Government Performance Results Act (GPRA) goals. We do not want to lower the expected performance outcomes based on individualized factors because we believe that doing so would be detrimental to YouthBuild participants. YouthBuild programs should strive to meet the performance goals set by the Department to ensure successful post-secondary and job placement outcomes for participants. We believe that these aggregate goals have motivated and will continue to motivate YouthBuild grantees to continue working towards improved performance outcomes. For these reasons, and for the reasons discussed above, we will continue to use the standards announced in TEGL 17–05 that apply to ETA programs such as YouthBuild.
Another commenter stated that it is essential that data collected to develop the performance indicators for YouthBuild be disaggregated by gender and other characteristics, so that young women's participation in the program can be evaluated. We do track this data and disaggregate participation by, among other things, gender for review of program activity. We have an electronic management information system (MIS) that performs this operation for internal analysis. This information allows us to craft policy to address program concerns as they arise.
Another commenter recommended that we mention reduction in recidivism as a performance measure that the Secretary may require to be tracked. As explained above, we have determined that it is important to use the Common Measures for the YouthBuild program which are also required by sec. 173A(c)(3)(B)(xii) of WIA. We will provide the details of the performance indicators in administrative guidance and will take the comments into consideration as performance standards are established. If we later conclude that the standard identified by the commenter, or any other performance standard is appropriate, § 672.400(a)(4) allows us to require additional performance indicators not listed in § 672.400(a)(1) through (3).
Another commenter recommended that YouthBuild programs be held to the same or equivalent standards required of apprenticeship programs under 29 CFR part 29. The commenter reasoned that the standards set forth at 29 CFR 29.5, would ensure a quality program.
We appreciate the commenter's suggestions as means to enhance YouthBuild standards. However, if we were to apply all of the requirements of 29 CFR part 29 to YouthBuild, we would extend the period of training beyond the period of performance authorized in the Transfer Act.
We did not receive any comments on this section. The final rule adopts the regulation as proposed.
We did not receive any comments on this section. The final rule adopts the regulation as proposed.
This subpart deals with other Federal regulations that apply to YouthBuild programs, and cost limitations and fund matching requirements.
This section explains the other regulations focusing on administrative standards, non-discrimination requirements, audit requirements, and other requirements that apply to YouthBuild programs.
One commenter recommended that the occupational skills and safety training provided by grantees include comprehensive training on equal
We agree that a work environment free of unlawful discrimination is very important. Therefore, § 672.500 specifically refers to the WIA nondiscrimination regulations at 29 CFR part 37 that apply to YouthBuild. Furthermore, the nondiscrimination provisions of WIA in sec. 188 require YouthBuild grantees to ensure equal opportunity and prevent discrimination in their programs. WIA sec. 188 ensures nondiscrimination and equal opportunity for various categories of persons, including persons with disabilities, who apply for and participate in programs and activities operated by recipients of WIA Title I financial assistance. Finally, while we do not require YouthBuild grantees to conduct comprehensive Equal Employment Opportunity training for program participants, the programs are required by 29 CFR 37.29 through 37.32 to post, in a conspicuous place in the YouthBuild facility, an equal opportunity hiring policy applicable to YouthBuild program staff.
Another commenter requested that we specify young women as a target population in YouthBuild's nondiscrimination regulations in Subpart E of the Rule. Section 672.500 explicitly states that the non-discrimination provisions in 29 CFR part 37 are applicable to YouthBuild. Part 37 broadly prohibits all forms of discrimination for WIA Title I programs (which include YouthBuild), including against women. Specifically, 29 CFR 37.5 states that “[n]o individual in the United States may, on the ground of race, color, religion, sex, national origin, age, disability, political affiliation or belief … be excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment in the administration of or in connection with any WIA Title I—funded program or activity.” We believe that these applicable non-discrimination provisions sufficiently protect YouthBuild participants, including young women
We did not receive any comments on this section. The final rule adopts the regulation as proposed.
Two commenters recommended that the restriction or cap of the cost of supervision and training for participants in the rehabilitation or construction of community and other public facilities be raised from 10 percent to 25 percent or 30 percent, or be eliminated. One commenter explained that the current housing crisis has affected rural and tribal YouthBuild programs by making it difficult for these programs to maintain a pipeline of rehabilitation and construction projects for skills training.
We understand that the comments are aimed at increasing training projects for YouthBuild participants and producing projects that may bring added value to the broader community. However, we may not alter the cost limitation by regulation because it is statutorily mandated in WIA Section 173A(c)(2)(C).
We did not receive any comments on this section. The final rule adopts the regulation as proposed.
This section provides that funds must be applied toward allowable costs to be counted as leveraged funds.
One commenter stated that by focusing solely on allowable costs, the regulations penalize rural and Native groups, which have fewer opportunities to match and to leverage funds, as well as any group that raises funds for unallowable costs to advance their program goals. The commenter suggests creating a third category for which programs are acknowledged and rewarded (with application review points or monitoring visit assessment ratings) called “Other Funds Raised to Support the Program.” The commenter states this would encourage programs to fundraise for legitimate needs (but “unallowable” costs) while assisting us to fully capture local support for YouthBuild. The commenter also suggested that match and leveraged funding level requirements and criteria be lowered for rural and tribal programs in high-poverty and/or persistently poor census tracts or counties, in recognition of very limited assets and resources in these communities.
While we recognize that rural and tribal programs are often located in high-poverty and/or persistently poor census tracts, we have decided not to lower the match requirement. We believe that well -run YouthBuild programs can not rely solely on Federal grant funds. YouthBuild programs, to be effective, must have several different funding sources in order to be able to provide the various services participants need. The required match over a three year period of performance brings necessary resources and partners to the program. Therefore, we do not believe that the requirement is so onerous that it prevents these kinds of grantees from serving as YouthBuild grantees.
Furthermore, the match requirement demonstrates the commitment of the community and the program to provide the necessary resources for the success of the YouthBuild program. Our program experience is that that a significant number of rural and native applicants have been able to meet the match requirement, therefore we do not believe that that requirement prevents rural and tribal programs from serving as YouthBuild grantees.
We want to clarify that costs which benefit the grant program (whether paid for with Federal or non-Federal resources) and are otherwise allowable under the cost principles are allowable under the grant and may be used as leveraged funds as long as no other statutory, regulatory, or grant provision prohibits the use of such funds for that purpose. In response to the commenter's proposed third category, the type of funds the commenter characterizes are already taken into account. An additional category is not needed since leveraged or matched funds are already considered in the review of the application.
This section explains the costs associated with real property that are allowable solely for the purpose of training YouthBuild participants.
We received four comments on this section, one of which was outside the scope of the NPRM. One commenter recommended that personal protective equipment (PPE) be allowed as an expense for YouthBuild training activities in § 672.525(c)(1) in order to ensure that YouthBuild participants comply with Federal and State health and safety standards.
We agree that the protection and safety of YouthBuild participants during construction training is of the highest importance. Therefore, we have amended the final rule to include PPE as an allowable expense for YouthBuild training activities under § 675.525(c)(1).
Two commenters asked that the cost of land acquisition for the construction of a new building for the purposes of
We did not receive any comments on this section. However, as described above in the discussion of § 672.310, we have added language to § 672.530(e) to clarify that the costs for providing additional benefits, described in § 672.530(e)(1) through (3), to participants or individuals who have exited the program and are receiving follow-up services, can still be incurred after participants terminate participation in the program.
This section explains what effect stipends and other assistance received from YouthBuild have on a participant's income for purposes of establishing need for other Federally sponsored needs-based programs.
One commenter stated that wages paid to participating youth as part of construction skills training should be exempt from income considerations for Temporary Assistance for Needy Families (TANF), Section 8 rental assistance programs, and Medicaid income thresholds. The commenter goes on to explain that access to nutrition, housing, and health care should not be diminished by participating in an employment and training program that will help participants become self-sufficient.
We agree. Under the WIA regulations at 20 CFR 667.272(c), allowances, earnings, and payments to individuals participating in programs under Title I of WIA are not considered as income for purposes of determining eligibility for and the amount of income transfer and in-kind aid furnished under any Federal or Federally-assisted program based on need other than as provided under the Social Security Act (42 U.S.C. 301). Since YouthBuild is a WIA Title I Program, income earned from participation in the YouthBuild program should not disqualify participants from benefitting from other Federally-sponsored needs-based programs that are available to them.
This section deals with program income requirements, as specified in the applicable Uniform Administrative Requirements at 29 CFR 95.24 and 97.25.
One commenter stated that it was disappointing to learn that, in the NPRM, we proposed that revenue from the sale or rental of YouthBuild construction and rehabilitation projects would not be counted as program income because it would be discouraging to participants to see the fruits of their labors not reinvested in improving and sustaining their program.
We agree with the commenter that under the Uniform Administrative Requirements rental income is considered program income and can be used to pay for allowable costs incurred by the program. We have amended § 672.540(b) to reflect this change. However, under the Uniform Administrative Requirements, income derived from the sale of YouthBuild construction and rehabilitation projects is not considered program income. We encourage grantees to reinvest any revenue realized through sales back into the YouthBuild programs to promote long-term sustainability.
This section deals with the Davis-Bacon wage rules that cover prevailing wage rates on Federally-funded or -assisted construction projects. We received five comments on this section. Two commenters stated that many groups may be confused by the Davis-Bacon Act labor standards and its application to YouthBuild. One commenter suggested that we offer separate guidance on this issue. At this time, ETA has no plans to offer guidance on Davis-Bacon labor standards' applicability to YouthBuild. However, the Department's Wage and Hour Division (WHD), which is responsible for the administration of the Davis-Bacon Act labor standards, does offer compliance guidance at its Web site at
The other commenter requested a definition of “Davis-Bacon-covered laborer or mechanic work.” The definition of laborer or mechanic work for Davis-Bacon purposes can be found at 29 CFR 5.2.
Proposed § 672.545(b)(1) of the NPRM explained that YouthBuild participants could be classified as “trainees” for Davis-Bacon purposes if they are individually registered in a trainee program approved by ETA. Two commenters objected to classifying YouthBuild participants as “trainees” on Davis-Bacon covered projects that would allow the YouthBuild “trainee” to be paid less than the Davis-Bacon Labor Standards require. Both commenters go on to say that allowing YouthBuild “trainees” to be paid lower rates than workers subject to the Davis-Bacon wage requirements would provide an incentive to hire YouthBuild “trainees” for construction work instead of journey-level construction workers and apprentices in many of the building and construction trades. It also, according to one commenter, could result in the loss of jobs and job opportunities for laborers. The commenters also suggest that establishing YouthBuild programs as “trainee” programs would place them in direct competition with many formal apprenticeship programs registered with the Department because in many instances, according to the commenters, the two training programs draw upon the same pool of candidates. Both commenters argue that because there are other benefits attached to participation in YouthBuild such as needs-based stipends and other services, this would place YouthBuild “trainees” at a competitive advantage with apprentices and journey-workers by making YouthBuild “trainees” cheaper to employ. One commenter states that this affects the construction industry by weakening its ability to attract and retain skilled workers. This commenter goes on to argue that the YouthBuild program does not qualify as a certified and registered training program under ETA and therefore, YouthBuild participants should not be classified as “trainees” for Davis-Bacon purposes.
However, this commenter encourages us to promote cooperation and partnerships between YouthBuild and registered apprenticeship programs and to promote the transfer of YouthBuild training credit within these apprentice programs. Furthermore, the other commenter argues that there is nothing in the Transfer Act that indicates the purpose of YouthBuild is to create trainee programs registered with ETA. Finally, the commenter states that it seems clear that Congress intended YouthBuild to serve as a source of qualified applicants for formal pre-apprenticeship and registered apprenticeship training programs in the building and construction industry.
The two commenters linked comments about the YouthBuild Trainee—Apprenticeship Preparation
The YB–TAP standards are a set of national standards developed in close consultation with ETA's Office of Apprenticeship (OA). The standards provide the basis for a YouthBuild program to establish an OA-approved trainee training program. By using the YB–TAP standards, a YouthBuild program can participate in a nationally approved trainee training program that allows it to pay participants less than the Davis-Bacon journey worker wage rates when performing work on Federal and federally assisted construction projects to which Davis-Bacon requirements apply.
Our intent in developing the YB–TAP was to design standards specifically for YouthBuild to create a more formal pathway into registered apprenticeships for YouthBuild participants, to create consistency in the construction skills training offered by YouthBuild programs across the country, and to provide another portable credential for YouthBuild program participants. Additionally, YB–TAP provided greater flexibility for YouthBuild programs to work on sites covered by Davis-Bacon, and thus expand the pool of potential worksites for grantees which often struggle to find suitable projects for worksite training. Of the 223 DOL-funded YouthBuild programs, 28 have registered with YB–TAP to-date; 12 of those requested and received a certification to have participants work at Davis-Bacon-covered sites, which allows them to be paid at less than the journey worker prevailing wage.
However, as a result of implementing YB–TAP, we found unintended consequences have arisen that are a concern for YouthBuild programs. Many of the organizations that YouthBuild seeks to partner with see YB–TAP as being in direct competition because programs are allowed to pay their participants, as trainees, less than the prevailing wage rate. The lower ratio of journey workers to trainees approved in the YB–TAP program makes it less expensive for a contractor to hire a YouthBuild-sponsored construction crew versus a journey worker staffed crew, and the YB–TAP standards, in effect, create a competing apprenticeship-like program approved by the Department.
Therefore, while these provisions for trainees who may be paid less than Davis-Bacon journeyman wage rates remain in effect as part of the Davis-Bacon Act labor standards, we have deleted the references to trainees and registered trainee programs in § 672.545(b)(1) to indicate that we will not approve programs as “trainee” programs for Davis-Bacon wage rate purposes without further notice. We believe this change is currently in the best interests of the YouthBuild program for the reasons discussed above.
We did not receive any comments on this section. The final rule adopts the regulation as proposed.
This subpart deals with other requirements, such as safety requirements and YouthBuild housing requirements, with which all programs must comply.
This section explains the safety standards that YouthBuild grantees must meet.
A commenter wrote that though safety is a preeminent concern for YouthBuild grantees, following National Institute for Occupational Safety and Health (NIOSH) and Occupational Safety and Health Administration (OSHA) standards can present significant challenges. That commenter explains that Mental Toughness is only effective if young people gain some exposure to the worksite, and it is not practical to provide such training at the beginning of Mental Toughness. The commenter asks that grantees be given some discretion in the timing of OSHA safety training to accommodate the purpose of Mental Toughness. The commenter also suggests that many YouthBuild grantees do not own or manage their own construction sites. They build in cooperation with a housing partner, such as Habitat for Humanity. The commenter believes it would be appropriate to follow the safety standards used by the housing partner.
On November 14, 2006, we published, at 71 FR 66349, a
Based upon the concerns raised by these commenters and others, the NPRM required that YouthBuild grantees not only comply with Federal and State health and safety standards, including the hazardous orders in the WHD child labor regulations, but also that they: Provide comprehensive safety training for youth working on YouthBuild construction projects; have written, jobsite-specific, safety plans overseen by an on-site supervisor with authority to enforce safety procedures as part of the grant application; provide necessary personal protective equipment to youth working on YouthBuild projects; and submit injury incident reports to ETA. The intent of these requirements is to protect the health and safety of YouthBuild participants on YouthBuild work sites, and to ensure that YouthBuild grantees comply with child labor laws.
We reiterate the importance of the NIOSH and OSHA safety standards for YouthBuild programs to ensure participant safety; therefore, we will not grant programs the discretion to provide the training after youth have already been on the worksite. The dangers inherent in youth working in construction and the well documented youth fatalities in construction which are directly related to noncompliance with child labor laws and occupational safety and health regulations makes it imperative that YouthBuild participants receive NIOSH and OSHA training before admittance to the work site. However, we recommend that any safety standards that may exist in addition to the required safety standards already discussed should be observed by YouthBuild participants. Therefore, it is appropriate for participants also to follow the safety standards of a YouthBuild housing partner, as the commenter suggested, as long as the standards compliment Federal, State, and local safety standards and provide at least the same level of safety as the required Federal, State and local standards.
Another commenter recommended that the requirement that grantees comply with Federal child labor laws be extended to include state child labor laws as well. We agree it is important for programs to comply with state child
The same commenter contended that we need to develop an injury surveillance system to routinely collect, analyze and report the injury data that grantees will be required to submit under the proposed rules. We agree with the importance of capturing this information and already have a system in place in which to capture the data.
Further, the commenter stressed the need to conceptualize and implement health and safety training as an integral and essential component of occupational skills development. The commenter felt that health and safety training was an “add-on” to occupational skills training instead of being an integral component of occupational skills development. We disagree with this assessment. Safety of the participants and the program staff is of significant importance to the Department. This is expressed not only in the proposed rule, but in all of the YouthBuild SGAs.
This section explains the requirements and process for filing reports when youth are injured while working on YouthBuild projects.
One commenter asked that we specify the process of reporting and filing injury incident reports for accidents involving youth that occur while youth are working on YouthBuild projects. This commenter goes on to ask that we provide details on what forms must be used in filing injury incidents, where to obtain the reports, and where the form is filed.
As we explained in § 672.605 of the NPRM and in this final rule, a YouthBuild grantee is responsible for sending a copy of OSHA's injury incident report form, to the U.S. Department of Labor, Employment and Training Administration within 7 days of any reportable injury suffered by a YouthBuild participant. The injury incident report form is available from OSHA and can be downloaded at
We did not receive any comments on this section. The final rule adopts the regulation as proposed.
This section explains that, for a period of at least ten years, all YouthBuild housing must be rented or sold to low income or homeless individuals and families, and that housing must be kept in a clean and sanitary condition. In addition, this section outlines some of the rules that must be followed when leasing YouthBuild housing to homeless or low income families and individuals.
One commenter expressed concern that there is a potential for exploitation for private benefit without requiring grantees to have written policies governing the rehabilitation of low income houses that are occupied. The same commenter went on to suggest that the Department's lawyers examine what impact, if any, Federal rules relating to relocation may have on the rehabilitation of occupied housing. The commenter pointed out that the Uniform Relocation Act and related statutes provide certain rights to residents who are relocated as a result of Federally-assisted housing activities.
We share the commenter's concern that there is a chance for exploitation for private benefit without requiring grantees to have a written policy. Furthermore, we appreciate the commenter's concerns over the applicability of the Uniform Relocation Act as it pertains to grantees rehabilitating occupied low income housing. We will examine the issues and, if necessary, will produce guidance addressing both of these issues.
The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603(a) requires agencies to prepare and make available for public comment an initial regulatory flexibility analysis (IRFA) which will describe the impact of a regulation on small entities. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an IRFA, if the final rule is not expected to have a significant economic impact on a substantial number of small entities. Furthermore, under the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 (SBREFA), an agency is required to produce compliance guidance for small entities if the rule has a significant economic impact on a substantial number of small entities. The RFA defines small entities as small business concerns, small not-for-profit enterprises, or small governmental jurisdictions. The final rule directly affects all YouthBuild grantees, of which there are currently 226. About half of these are small entities (generally non-profit, community-based organizations). We do not believe that the final rule will have a significant economic impact on a substantial number of these small entities. We have certified this to the Chief Counsel for Advocacy, Small Business Administration, under the Regulatory Flexibility Act. The primary issues affected by the final rule are discussed below.
The YouthBuild program has existed since 1978. YouthBuild began as a Federal grant program in 1994 and was administered by HUD until 2006 when it was transferred to the Department. YouthBuild operates as a voluntary grant program. While there are matching and leverage requirements, organizations apply for Federal grant funds. Also, grant funds may be used to pay for requirements in the final rule that address participant safety, worksite environmental standards, and a required follow-up time period for YouthBuild enrollees.
The final rule requires that all applicable National Institute for Occupational Safety and Health (NIOSH) and Occupational Safety and Heath Administration (OSHA) regulations be followed for youth who are on YouthBuild participant construction sites. The NIOSH safety standards are standard requirements for all Federally-funded construction worksites across the United States. The requirements will not add demonstrably to the cost of any YouthBuild program because safety equipment required by NIOSH standards can be purchased using YouthBuild grant funds provided by the Department. Further, the cost of the other requirements—supervisor training, development of safety plans, safety reporting, etc.—can be paid for with grant funds as well.
In addition, the final rule requires that all Federal environmental standards, including National Environmental Policy Act of 1969 (NEPA), be followed. This is a standard for all Federally-funded construction worksites across the United States and is already established procedure at many YouthBuild work sites. YouthBuild grant funds may be used to ensure compliance with the required environmental standards.
The YouthBuild program will have a beneficial economic impact on small entity program participants. While there are match and leverage requirements under YouthBuild, the grantees are applying to receive additional resources to carry out their purposes for the benefit of participants. Finally, we are aware of no public concern that the rule will have a significant economic impact
Accordingly, we certify that this final rule will not have a significant economic impact on a substantial number of small entities.
One of the purposes of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
The collection of data described in this final rule contains requirements to implement reporting and recordkeeping requirements for the YouthBuild program. This reporting structure features standardized data collection for program participants, and quarterly narrative and Management Information System (MIS) performance report formats. All data collection and reporting will be done by YouthBuild grantees.
These requirements were previously reviewed and approved for use by OMB under 44 U.S.C. 3507 and 5 CFR part 1320, and assigned OMB control number 1205–0464 under the provisions of the PRA. YouthBuild grantees will collect and report selected standardized information on participants in YouthBuild programs for the purposes of general program oversight, evaluation, and performance assessment. ETA will provide all grantees with a YouthBuild management information system (MIS) to use for collecting participant data and for preparing and submitting the required quarterly reports. We have determined that this final rule contains no new information collection requirements.
We estimate that the public reporting burden for this collection of information will amount to 16,280 hours. This total includes all paperwork required by this rule over the course of one program year for all grantees nationwide.
Executive Orders (E.O.) 13563 and 12866 direct 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that: (1) Has an annual effect on the economy of $100 million or more or adversely and materially affects a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities (also referred to as “economically significant”); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866
We received one comment on E.O. 12866 addressing whether this rule is a significant regulatory action. The commenter was concerned that YouthBuild participants who were employed on Davis-Bacon sites would displace skilled construction apprentices and journey workers because the YouthBuild participant could be paid a lower than Davis-Bacon required wage. The commenter suggested that this would result in the unemployment of these trade workers and the effect on the economy could be large, ranging from loss of income and loss of buying power, to increased Federal unemployment support and increased need for other social services. However, in response to the comment, we have determined that YouthBuild participants that work on Davis-Bacon worksites will be subject to Davis-Bacon wage rates. Therefore, YouthBuild participants could not be employed at lower than Davis-Bacon wage rates.
E.O. 13563, issued after publication of the NPRM, asked agencies to identify, to the extent possible, the necessity of the regulation as well as the costs and benefits of the regulation.
YouthBuild is a workforce development program that provides employment, education, leadership development, and training opportunities to disadvantaged and low-income youth between the ages of 16 and 24, most of whom are secondary school drop outs and are either a member of a low-income family, a foster care youth, a youth offender, a youth with a disability, a child of an incarcerated parent, or a migrant youth. This regulation is necessary for the orderly operation and management of the YouthBuild program because the Department has not published regulations governing the YouthBuild program since it was transferred from HUD to the Department in 2006.
Program participants receive numerous benefits through their participation in the YouthBuild program. Participants receive education services that may lead to either a high school diploma or GED. Further, they receive occupational skills training and are encouraged to pursue a post- secondary education or additional training, including registered apprenticeship programs. The program is designed to create a skilled workforce either in the construction industry, through the rehabilitation and construction of housing for homeless individuals and families and low- income families, as well as public facilities, or in other high wage, high-demand jobs. The program also benefits the larger community because it provides more new and rehabilitated affordable housing.
In contrast to the benefits provided to both program participants and their communities, the cost to YouthBuild programs to provide these services is minimal. The money to provide these benefits to program participants is provided to YouthBuild programs both through an annual grant competition overseen by the Department, as well as any additional leveraged resources obtained by YouthBuild programs. Based on these factors, we have reviewed the costs and benefits of the regulation and have determined that this regulatory approach maximizes net benefits.
While the regulatory requirements defined and implemented by this final rule for this grant program will not have an annual, measurable effect on the economy of $100 million or more, the final rule raises novel policy issues about, among other things, application of Davis-Bacon wage rules, Federal cost limitations, and the expansion of the YouthBuild program approved training to other occupational skills besides construction skills training. Therefore, this rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of E.O. 12866 and submitted to OMB for review.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531)
The YouthBuild Transfer Act requires that housing rehabilitated or constructed with YouthBuild grant funds be for the purposes of housing homeless individuals and families or low-income families. In order for the Department to ensure that the YouthBuild program is administered in compliance with the legislation, each grantee must ensure that the owner of the property where YouthBuild funds are spent to construct or rehabilitate residential units records a restrictive covenant on the property, limiting the use of the units to housing for homeless individuals and families and low-income families. Such a restrictive covenant will not result in a taking without just compensation. This is a contractually-based restriction and therefore property owners are compensated for any limitations on the use of their land. Property owners enter into these contracts creating the restriction voluntarily and they receive consideration in the form of services from the YouthBuild program to build or rehabilitate their housing for the burden on their property. Subsequent purchasers will have notice of the covenant and will be able to determine purchase price with knowledge of the limitations on the use of the property. Furthermore, the restrictive covenant will expire 10 years from the date of issuance of occupancy permit, giving flexibility to the grantee and/or property owner within a reasonable time period. We are committed to upholding the integrity of the YouthBuild program in all its aspects and believe that a restrictive covenant is the best way to meet the purpose of the legislation to increase the supply of housing for homeless individuals and families and low-income families.
This final rule has been drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform, and will not unduly burden the Federal court system. The final rule has been written so as to minimize litigation and provide a clear legal standard for affected conduct and has been reviewed carefully to eliminate drafting errors and ambiguities.
Executive Order 13045 concerns the protection of children from environmental health risks and safety risks. This final rule has no impact on the environmental health or safety of children.
Executive Order 13175 addresses the unique relationship between the Federal Government and Indian Tribal governments. The order requires Federal agencies to take certain actions when regulations have “Tribal implications.” Required actions include consulting with Tribal governments before promulgating a regulation with Tribal implications and preparing a Tribal impact statement. The order defines regulations as having Tribal implications when they have substantial direct effects 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.
This final rule addresses a voluntary grant program, YouthBuild, which is administered by the U.S. Department of Labor. Although there are tribal YouthBuild grantees, we conclude that this final rule does not directly affect one or more Indian Tribes, the relationship between the Federal Government and Indian Tribes, or the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have reviewed this final rule in accordance with the requirements of the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.), the regulations of the Council on Environmental Quality (40 CFR. part 1500), and the Department's NEPA procedures (29 CFR. part 11). The final rule will not have a significant impact on the quality of the human environment, and, thus, we have not prepared an environmental assessment or an environmental impact statement.
Section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105–277, 112 Stat. 2681), requires us to assess the impact of this final rule on family well-being. A rule that is determined to have a negative effect on families must be supported with an adequate rationale.
We have assessed this final rule and determines that it will not have a negative effect on families. Indeed, we maintain that this rule will strengthen families by providing low-income housing and occupational training for low-income families and others.
This final rule is not subject to Executive Order 13211, because it will not have a significant adverse effect on the supply, distribution, or use of energy.
The Privacy Act of 1974 is implicated when a regulation: (1) Requires either collection of information that the agency will retrieve by an individual's name or other personal identifier or would create a program where the agency's program records will be retrieved by an individual's name or personal identifier; and (2) involves computerized matching of records from a Privacy Act System of Records with any other records.
This final rule is not affected by the Privacy Act of 1974 as it does not require the Department to collect information on an individual's name or other personal identifier or involve computerized matching of records from a Privacy Act System of Records with any other records.
We drafted this final rule in plain language.
Therefore, according to the preamble, ETA amends 20 CFR chapter V by adding part 672 to read as follows:
29 U.S.C. 2918a.
(a) YouthBuild is a workforce development program that provides employment, education, leadership development, and training opportunities to disadvantaged and low-income youth between the ages of 16 and 24, most of whom are secondary school drop outs and are either a member of a low-income family, a foster care youth, a youth offender, a youth with a disability, a child of an incarcerated parent, or a migrant youth.
(b) Program participants receive education services that may lead to either a high school diploma or General Educational Development (GED). Further, they receive occupational skills training and are encouraged to pursue a post- secondary education or additional training, including registered apprenticeship programs. The program is designed to create a skilled workforce either in the construction industry, through the rehabilitation and construction of housing for homeless individuals and families and low- income families, as well as public facilities, or in other high wage, high-demand jobs. The program also benefits the larger community because it provides more new and rehabilitated affordable housing.
(a) The overarching goal of the YouthBuild program is to provide disadvantaged and low-income youth the opportunity to obtain education and employment skills in local in-demand and high-demand jobs to achieve economic self-sufficiency. Additionally, the YouthBuild program has as goals:
(1) To promote leadership skills development and community service activities. YouthBuild programs will foster the development of leadership skills and a commitment to community improvement among youth in low-income communities.
(2) To enable youth to further their education and training. YouthBuild programs will provide counseling and assistance in obtaining post-secondary education and/or employment and training placements that allow youth to further their education and training.
(3) To expand the supply of permanent affordable housing and reduce the rate of homelessness in communities with YouthBuild programs. The program seeks to increase the number of affordable housing units available and to decrease the number of homeless individuals and families in their communities.
(b) Through these educational and occupational opportunities, to enable youth participants to provide a valuable contribution to their communities. The YouthBuild program will add skilled workers to the workforce by educating and training youth who might have otherwise succumbed to the negative influences within their environments.
(1) A community-based organization;
(2) A faith-based organization;
(3) An entity carrying out activities under this Title, such as a local school board;
(4) A community action agency;
(5) A State or local housing development agency;
(6) An Indian tribe or other agency primarily serving Indians;
(7) A community development corporation;
(8) A State or local youth service or conservation corps; and
(9) Any other entity eligible to provide education or employment training under a Federal program (other than the program carried out under this part).
(1) Whose native language is a language other than English; or
(2) Who lives in a family or community environment where a language other than English is the dominant language.
(1) Worked at least 25 days in agricultural labor that is characterized by chronic unemployment or underemployment;
(2) Made at least $800 from agricultural labor that is characterized by chronic unemployment or underemployment, if at least 50 percent of his or her income came from such agricultural labor;
(3) Was employed at least 50 percent of his or her total employment in agricultural labor that is characterized by chronic unemployment or underemployment; or
(4) Was employed in agricultural labor that requires travel to a jobsite such that the farmworker is unable to return to a permanent place of residence within the same day.
(1) Registered under the Act of August 16, 1937 (commonly known as the “National Apprenticeship Act”; 50 Stat. 664, chapter 663; 20 U.S.C. 50
(2) A program with a plan containing all terms and conditions for the qualification, recruitment, selection, employment and training of apprentices, as required under 29 CFR parts 29 and 30, including such matters as the requirement for a written apprenticeship agreement.
The Secretary uses funds authorized for appropriation under sec. 173A of the Workforce Investment Act (WIA) to administer YouthBuild as a national program under Title I, Subtitle D of the Act. YouthBuild grants are awarded to eligible entities, as defined in § 672.110, through a competitive selection process described in § 672.205.
The Secretary announces the availability of grant funds through a Solicitation for Grant Applications (SGA). The SGA contains instructions for what is required in the grant application, describes eligibility requirements, the rating criteria that will be used in reviewing grant applications, and special reporting requirements to operate a YouthBuild project.
In order to receive funds under the YouthBuild program, an eligible entity applying for funds (applicant) must meet selection criteria established by the Secretary which include:
(a) The qualifications or potential capabilities of an applicant;
(b) An applicant's potential to develop a successful YouthBuild program;
(c) The need for an applicant's proposed program, as determined by the degree of economic distress of the community from which participants would be recruited (measured by indicators such as poverty, youth unemployment, and the number of individuals who have dropped out of secondary school) and of the community in which the housing and public facilities proposed to be rehabilitated or constructed are located (measured by indicators such as incidence of homelessness, shortage of affordable housing, and poverty);
(d) The commitment of an applicant to provide skills training, leadership development, counseling and case management, and education to participants;
(e) The focus of a proposed program on preparing youth for postsecondary education and training opportunities or local in-demand occupations;
(f) The extent of an applicant's coordination of activities to be carried out through the proposed program with:
(1) Local boards, One-Stop Career Center operators, and One-Stop partners participating in the operation of the One-Stop delivery system involved, or the extent of the applicant's good faith efforts, as determined by the Secretary, in achieving such coordination;
(2) Public education, criminal justice, housing and community development, national service, or postsecondary education or other systems that relate to the goals of the proposed program; and
(3) Employers in the local area.
(g) The extent to which a proposed program provides for inclusion of tenants who were previously homeless individuals or families in the rental of housing provided through the program;
(h) The commitment of additional resources to the proposed program (in addition to the funds made available through the grant) by:
(1) An applicant;
(2) Recipients of other Federal, State, or local housing and community development assistance who will sponsor any part of the rehabilitation, construction, operation and maintenance, or other housing and community development activities undertaken as part of the proposed program; or
(3) Entities carrying out other Federal, State, or local activities or activities conducted by Indian tribes, including vocational education programs, adult and language instruction educational programs, and job training using funds provided under WIA,
(i) An applicant's ability to enter partnerships with:
(1) Education and training providers including:
(i) The kindergarten through twelfth grade educational system;
(ii) Adult education programs;
(iii) Community and technical colleges;
(iv) Four-year colleges and universities;
(v) Registered apprenticeship programs; and
(vi) Other training entities.
(2) Employers, including professional organizations and associations. An applicant will be evaluated on the extent to which employers participate in:
(i) Defining the program strategy and goals;
(ii) Identifying needed skills and competencies;
(iii) Designing training approaches and curricula;
(iv) Contributing financial support; and
(v) Hiring qualified YouthBuild graduates.
(3) The workforce investment system which may include:
(i) State and local workforce investment boards;
(ii) State workforce agencies; and
(iii) One-Stop Career Centers and their cooperating partners.
(4) The juvenile and adult justice systems, and the extent to which they provide:
(i) Support and guidance for YouthBuild participants with court involvement;
(ii) Assistance in the reporting of recidivism rates among YouthBuild participants; and
(iii) Referrals of eligible participants through diversion or re-entry from incarceration.
(5) Faith-based and community organizations, and the extent to which they provide a variety of grant services such as:
(i) Case management;
(ii) Mentoring;
(iii) English as a Second Language courses; and
(iv) Other comprehensive supportive services, when appropriate.
(j) The applicant's potential to serve different regions, including rural areas and States that may not have previously received grants for YouthBuild programs; and
(k) Such other factors as the Secretary determines to be appropriate for purposes of evaluating an applicant's potential to carry out the proposed program in an effective and efficient manner.
(l) The weight to be given to these factors will be described in the SGA issued under § 672.205.
The Secretary will, to the extent practicable, notify each eligible entity applying for funds no later than 5 months from the date the application is received, whether the application is approved or disapproved. In the event additional funds become available, ETA reserves the right to use such funds to
(a)
(1) Not less than age 16 and not more than age 24 on the date of enrollment; and
(2) A school dropout or an individual who has dropped out of school and reenrolled in an alternative school, if that reenrollment is part of a sequential service strategy; and
(3) Is one or more of the following:
(i) A member of a low-income family as defined in § 672.110;
(ii) A youth in foster care;
(iii) A youth offender;
(iv) A youth who is an individual with a disability;
(v) The child of a current or formerly incarcerated parent; or
(vi) A migrant youth as defined in § 672.110.
(b)
(1) Are basic skills deficient as defined in section 101(4) of WIA, even if they have their high school diploma, GED credential, or other State-recognized equivalent; or
(2) Have been referred by a local secondary school for participation in a YouthBuild program leading to the attainment of a secondary school diploma.
Special rules for determining income for veterans are found in 20 CFR 667.255 and for the priority of service provisions for qualified persons are found in 20 CFR part 1010. Those special rules apply to covered persons who are eligible to participate in the YouthBuild program.
Grantees may provide one or more of the following education and workforce investment and other activities to YouthBuild participants—
(a) Eligible education activities include:
(1) Services and activities designed to meet the educational needs of participants, including:
(i) Basic skills instruction and remedial education;
(ii) Language instruction educational programs for individuals with limited English proficiency;
(iii) Secondary education services and activities, including tutoring, study skills training, and dropout prevention activities, designed to lead to the attainment of a secondary school diploma, GED credential, or other State- recognized equivalent (including recognized alternative standards for individuals with disabilities);
(iv) Counseling and assistance in obtaining post-secondary education and required financial aid; and
(v) Alternative secondary school services;
(2) Counseling services and related activities, such as comprehensive guidance and counseling on drug and alcohol abuse and referral to appropriate treatment;
(3) Activities designed to develop employment and leadership skills, which may include community service and peer-centered activities encouraging responsibility and other positive social behaviors, and activities related to youth policy committees that participate in decisionmaking related to the program; and
(4) Supportive services, as defined under Title I of WIA Section 101(46), and provision of need-based stipends, as defined in § 672.110.
(b) Eligible workforce investment activities include:
(1) Work experience and skills training (coordinated, to the maximum extent feasible, with registered apprenticeship programs) in housing rehabilitation and construction activities described in paragraphs (c)(1) and (2) of this section;
(2) Occupational skills training;
(3) Other paid and unpaid work experiences, including internships and job shadowing; and
(4) Job search assistance.
(c) Other eligible activities include:
(1) Supervision and training for participants in the rehabilitation or construction of housing, including residential housing for homeless individuals and families or low-income families, or transitional housing for homeless individuals and families;
(2) Supervision and training for participants in the rehabilitation or construction of community or other public facilities, except that, as provided in § 672.505(b), not more than 10 percent of the funds awarded for each grant may be used for such supervision and training;
(3) Ongoing training and technical assistance for staff of grant recipients that is related to developing and carrying out the YouthBuild program;
(4) Payment of a portion of the administrative costs of the program as provided in § 672.505(a);
(5) Adult mentoring;
(6) Provision of wages, stipends, or additional benefits to participants in the program as provided in § 672.530; and
(7) Follow-up services as provided in § 672.325.
An eligible individual selected for participation in the program must be offered full-time participation in the program for not less than 6 months and not more than 24 months.
YouthBuild grantees must structure programs so that participants in the program are offered:
(a) Eligible education activities, as specified in § 672.310(a), during at least 50 percent of the time during which they participate in the program; and
(b) Eligible workforce investment activities, as specified in § 672.310(b), during at least 40 percent of the time during which they participate in the program. Grantees must provide the eligible workforce investment activities described in § 672.310(b)(1) as part of their program of eligible workforce investment activities.
(c) The remaining 10 percent of the time of participation can be used for the activities described in paragraphs (a) and (b) of this section and/or for leadership development and community service activities.
Follow-up services must be provided to all YouthBuild participants for a period of not less than 9 months but no more than 12 months after participants exit a YouthBuild program. These are services that assist participants in obtaining or retaining employment, or applying for and transitioning to post-secondary education or training.
(a) The performance indicators for YouthBuild grants are:
(1) Placement in employment or education;
(2) Attainment of a degree or certificate;
(3) Literacy and numeracy gains; and
(4) Such other indicators of performance as may be required by the Secretary.
(b) We will provide the details of the performance indicators in administrative guidance.
(a) Expected levels of performance for each of the common performance indicators are national standards that are provided in separately issued guidance. Short-term or other performance indicators will be provided in separately issued guidance or as part of the SGA or grant agreement. Performance level expectations are based on available YouthBuild data and data from similar WIA Youth programs and may change between grant competitions. The expected national levels of performance will take into account the extent to which the levels promote continuous improvement in performance.
(b) The levels of performance established will, at a minimum:
(1) Be expressed in an objective, quantifiable, and measurable form; and
(2) Indicate continuous improvement in performance.
Each grantee must provide such reports as are required by the Secretary in separately issued guidance, including:
(a) The Quarterly Performance Report;
(b) The quarterly narrative progress report;
(c) The financial report; and
(d) Such other reports as may be required by the grant agreement.
(a) Quarterly reports are due no later than 45 days after the end of the reporting quarter, unless otherwise specified in the reporting guidance issued under § 672.410; and
(b) A final financial report is required 90 days after the expiration of a funding period or the termination of grant support.
Each YouthBuild grantee must comply with the following:
(a) The regulations found in this part.
(b) The general administrative requirements found in 20 CFR part 667, except those that apply only to the WIA Title I–B program and those that have been modified by this section.
(c) The Department's regulations on government-wide requirements, which include:
(1) The regulations codifying the Office of Management and Budget's government-wide grants requirements: Circular A–110 (codified at 2 CFR part 215), and Circular A–102 at 29 CFR parts 95 and 97, as applicable;
(2) The Department's regulations at 29 CFR part 37, which implement the nondiscrimination provisions of WIA section 188;
(3) The Department's regulations at 29 CFR parts 93, 94, and 98 relating to restrictions on lobbying, drug free workplace, and debarment and suspension; and
(4) The audit requirements of OMB Circular A–133 stated at 29 CFR part 99, as required by 29 CFR 96.11, 95.26, and 97.26, as applicable.
Each recipient of a grant under the YouthBuild program may provide the services and activities described in these regulations either directly or through subgrants, contracts, or other arrangements with local educational agencies, postsecondary educational institutions, State or local housing development agencies, other public agencies, including agencies of Indian tribes, or private organizations.
(a) Administrative costs for programs operated under YouthBuild are limited to no more than 15 percent of the grant award. The definition of administrative costs can be found in 20 CFR 667.220.
(b) The cost of supervision and training for participants involved in the rehabilitation or construction of community and other public facilities is limited to no more than 10 percent of the grant award.
(a) The cost-sharing or matching requirements applicable to a YouthBuild grant will be addressed in the grant agreement.
(b) The value of construction materials used in the YouthBuild program is an allowable cost for the purposes of the required non-Federal share or match.
(c) The value of land acquired for the YouthBuild program is not an allowable cost-sharing or match.
(d) Federal funds may not be used as cost-sharing or match resources except as provided by Federal law.
(e) The value of buildings acquired for the YouthBuild program is an allowable match, provided that the following conditions apply:
(1) The purchase cost of buildings used solely for training purposes is allowable; and
(2) For buildings used for training and other purposes, the allowable amount is determined based on the proportionate share of the purchase price related to direct training activities.
(f) Grantees must follow the requirements of 29 CFR 95.23 or 29 CFR 97.24 in the accounting, valuation, and reporting of the required non-Federal share.
(a) Leveraged funds may be used to support allowable YouthBuild program activities and consist of payments made for allowable costs funded by both non-YouthBuild Federal, and non-Federal, resources which include:
(1) Costs which meet the criteria for cost-sharing or match in § 672.515 and are in excess of the amount of cost-sharing or match resources required;
(2) Costs which would meet the criteria in § 672.515 except that they are paid for with other Federal resources; and
(3) Costs which benefit the grant program and are otherwise allowable under the cost principles but are not allowable under the grant because of some statutory, regulatory, or grant provision, whether paid for with Federal or non-Federal resources.
(b) The use of leveraged funds must be reported in accordance with Departmental instructions.
(a) As provided in paragraphs (b) and (c) of this section, the costs of the following activities associated with real property are allowable solely for the purpose of training YouthBuild participants:
(1) Rehabilitation of existing structures for use by homeless individuals and families or low-income families or for use as transitional housing.
(2) Construction of buildings for use by homeless individuals and families or low-income families or for use as transitional housing.
(3) Construction or rehabilitation of community or other public facilities, except, as provided in § 672.510(b), only
(b) The costs for acquisition of buildings that are used for activities described in paragraph (a) of this section are allowable with prior grant officer approval and only under the following conditions:
(1) The purchase cost of buildings used solely for training purposes is allowable; and
(2) For buildings used for training and other purposes, the allowable amount is determined based on the proportionate share of the purchase cost related to direct training.
(c) The following costs are allowable to the extent allocable to training YouthBuild participants in the construction and rehabilitation activities specified in paragraph (a) of this section:
(1) Trainees' tools and clothing including personal protective equipment (PPE);
(2) On-site trainee supervisors;
(3) Construction management;
(4) Relocation of buildings; and
(5) Clearance and demolition.
(d) Architectural fees, or a proportionate share thereof, are allowable when such fees can be related to items such as architectural plans or blueprints on which participants will be trained.
(e) The following costs are unallowable:
(1) The costs of acquisition of land.
(2) Brokerage fees.
Allowable participant costs include:
(a) The costs of payments to participants engaged in eligible work-related YouthBuild activities.
(b) The costs of payments provided to participants engaged in non-work- related YouthBuild activities.
(c) The costs of needs-based stipends.
(d) The costs of supportive services.
(e) The costs of providing additional benefits to participants or individuals who have exited the program and are receiving follow-up services, which may include:
(1) Tuition assistance for obtaining college education credits;
(2) Scholarships to an Apprenticeship, Technical, or Secondary Education program; and
(3) Sponsored health programs.
Under 20 CFR 667.272(c), allowances, earnings, and payments to individuals participating in programs under Title I of WIA are not considered as income for purposes of determining eligibility for and the amount of income transfer and in-kind aid furnished under any Federal or Federally-assisted program based on need other than as provided under the Social Security Act (42 U.S.C. 301).
(a) Except as provided in paragraph (b) of this section, program income requirements, as specified in the applicable Uniform Administrative Requirements at 29 CFR 95.24 and 97.25, apply to YouthBuild grants.
(b) Revenue from the sale of buildings rehabilitated or constructed under the YouthBuild program to homeless individuals and families and low-income families is not considered program income. Grantees are encouraged to use that revenue for the long-term sustainability of the YouthBuild program.
(a) YouthBuild programs and grantees are subject to Davis-Bacon labor standards requirements under the circumstances set forth in paragraph (b) of this section. In those instances where a grantee is subject to Davis-Bacon requirements, the grantee must follow applicable requirements in the Department's regulations at 29 CFR parts 1, 3, and 5, including the requirements contained in the Davis-Bacon contract provisions set forth in 29 CFR 5.5.
(b) YouthBuild participants are subject to Davis-Bacon Act labor standards when they perform Davis-Bacon-covered laborer or mechanic work, defined at 29 CFR 5.2, on Federal or Federally-assisted projects that are subject to the Davis-Bacon Act labor standards. The Davis-Bacon prevailing wage requirements apply to hours worked on the site of the work.
(c) YouthBuild participants who are not registered and participating in a training program approved by the Employment and Training Administration must be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed.
(a) Grantees must follow the recordkeeping requirements specified in the Uniform Administrative Requirements, at 29 CFR 95.53 and 29 CFR 97.42, as appropriate.
(b) Grantees must maintain such additional records related to the use of buildings constructed or rehabilitated with YouthBuild funds as specified in the grant agreement or in the Department's guidance.
(a) YouthBuild Grantees must comply with 20 CFR 667.274, which applies Federal and State health and safety standards to the working conditions under WIA-funded projects and programs. These health and safety standards include “hazardous orders” governing child labor under 29 CFR part 570 prohibiting youth ages 16 and 17 from working in identified hazardous occupations.
(b) YouthBuild grantees are required to:
(1) Provide comprehensive safety training for youth working on YouthBuild construction projects;
(2) Have written, jobsite-specific, safety plans overseen by an on-site supervisor with authority to enforce safety procedures;
(3) Provide necessary personal protective equipment to youth working on YouthBuild projects; and
(4) Submit required injury incident reports.
YouthBuild grantees must ensure that YouthBuild program sites comply with the Occupational Safety and Health Administration's (OSHA) reporting requirements in 29 CFR part 1904. A YouthBuild grantee is responsible for sending a copy of OSHA's injury incident report form, to U.S. Department of Labor, Employment and Training Administration within 7 days of any reportable injury suffered by a YouthBuild participant. The injury incident report form is available from OSHA and can be downloaded at
YouthBuild Program grantees are required, where applicable, to comply with all environmental protection statutes and regulations.
(a) YouthBuild grantees must ensure that all residential housing units which are constructed or rehabilitated using YouthBuild funds must be available solely for:
(1) Sale to homeless individuals and families or low-income families;
(2) Rental by homeless individuals and families or low-income families;
(3) Use as transitional or permanent housing for the purpose of assisting in the movement of homeless individuals and families to independent living; or
(4) Rehabilitation of homes for low-income homeowners.
(b) For rentals of residential units located on the property which are constructed or rehabilitated using YouthBuild funds:
(1) The property must maintain at least a 90 percent level of occupancy for low-income families. The income test will be conducted only at the time of entry for each available unit or rehabilitation of occupant-owned home. If the grantee cannot find a qualifying tenant to lease the unit, the unit may be leased to a family whose income is above the income threshold to qualify as a low-income family but below the median income for the area. Leases for tenants with higher incomes will be limited to not more than two years. The leases provided to tenants with higher incomes are not subject to the termination clause that is described in paragraph (b)(2) of this section.
(2) The property owner must not terminate the tenancy or refuse to renew the lease of a tenant occupying a residential rental housing unit constructed or rehabilitated using YouthBuild funds except for serious or repeated violations of the terms and conditions of the lease, for violation of applicable Federal, State or local laws, or for good cause. Any termination or refusal to renew the lease must be preceded by not less than a 30-day written notice to the tenant specifying the grounds for the action. The property owner may waive the written notice requirement for termination in dangerous or egregious situations involving the tenant.
(c) All transitional or permanent housing for homeless individuals or families or low-income families must be safe and sanitary. The housing must meet all applicable State and local housing codes and licensing requirements in the jurisdiction in which the housing is located.
(d) For sales or rentals of residential housing units constructed or rehabilitated using YouthBuild funds, YouthBuild grantees must ensure that owners of the property record a restrictive covenant at the time that an occupancy permit is issued against such property which includes the use restrictions set forth in paragraphs (a), (b), and (c) of this section and incorporates the following definitions at § 672.110: Homeless Individual; Low- Income Housing; and Transitional Housing. The term of the restrictive covenant must be at least 10 years from the time of the issuance of the occupancy permit, unless a time period of more than 10 years has been established by the grantee. Any additional stipulations imposed by a grantee or property owner should be clearly stated in the covenant.
(e) Any conveyance document prepared in the 10-year period of the restrictive covenant must inform the buyer of the property that all residential housing units constructed or rehabilitated using YouthBuild funds are subject to the restrictions set forth in paragraphs (a), (b), (c), and (d) of this section.
Health Resources and Services Administration (HRSA), HHS.
Notice of proposed rulemaking.
This proposed rule revises existing regulations under sections 401–432 of the Health Care Quality Improvement Act of 1986 and section 1921 of the Social Security Act, governing the National Practitioner Data Bank, to incorporate statutory requirements under section 6403 of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act), Public Law 111–148. The Department of Health and Human Services (HHS) also is removing Title 45 of the Code of Federal Regulations (CFR) part 61, which implemented the Healthcare Integrity and Protection Data Bank.
Section 6403 of the Affordable Care Act, the statutory authority for this regulatory action, was designed to eliminate duplicative data reporting and access requirements between the Healthcare Integrity and Protection Data Bank (established under section 1128E of the Social Security Act) and the National Practitioner Data Bank. Section 6403 of the Affordable Care Act requires the Secretary to establish a transition period to transfer all data in the Healthcare Integrity and Protection Data Bank to the National Practitioner Data Bank, and, once completed, to cease operations of the Healthcare Integrity and Protection Data Bank. Information previously collected and disclosed through the Healthcare Integrity and Protection Data Bank will then be collected and disclosed through the National Practitioner Data Bank. This regulatory action consolidates the collection and disclosure of information from both data banks into one part of the CFR.
We invite comments on this proposed rule. To be considered, submit comments on or before April 16, 2012.
You may submit comments in one of three ways, as listed below. The first is the preferred method. To avoid duplication, please submit your comments in only
1.
2.
3.
Because of staffing and resource limitations, and to ensure that no comments are misplaced, we cannot accept comments by facsimile (FAX) transmission.
In commenting, please refer to file code # HRSA–0906–AA87. Comments received on a timely basis will be available for public inspection as they are received in Room 14–101 of the Health Resources and Services Administration, 5600 Fishers Lane, Rockville, MD., on Monday through Friday of each week from 8:30 a.m. to 5:00 p.m. (phone: 301–443–1785).
We will consider all comments we receive by the date and time specified in the Dates section of this preamble, and will respond to the comments in the preamble of the final rule.
Cynthia Grubbs, Director, Division of Practitioner Data Banks, Bureau of Health Professions, Health Resources and Services Administration, Parklawn Building, 5600 Fishers Lane, Room 8–103, Rockville, MD 20857; telephone number: (301) 443–2300.
The paragraphs below provide a summary of the legal authorities governing the National Practitioner Data Bank and the Healthcare Integrity and Protection Data Bank.
The National Practitioner Data Bank (NPDB) was established by the Health Care Quality Improvement Act of 1986 (HCQIA), as amended (42 U.S.C. 11101
Section 1921 of the Social Security Act (herein referred to as section 1921), as amended by section 5(b) of the Medicare and Medicaid Patient and Program Protection Act of 1987, Public Law 100–93, and as amended by the Omnibus Budget Reconciliation Act of 1990, Public Law 101–508, expanded the scope of the NPDB. Section 1921 requires each State to adopt a system for reporting to the Secretary certain adverse licensure actions taken against health care practitioners and entities by any authority of the State responsible for the licensing of such practitioners or entities. It also requires each State to report any negative action or finding that a State licensing authority, a peer review organization, or a private accreditation entity had taken against a health care practitioner or health care entity.
Groups with access to this information include all organizations eligible to query the NPDB under the HCQIA (hospitals, other health care entities that have formal peer review and provide health care services, State
Final regulations implementing section 1921 were issued on January 28, 2010 (75 FR 4656). The NPDB began collecting and disclosing section 1921 information on March 1, 2010.
Section 1128E of the Social Security Act (herein referred to as section 1128E), as added by section 221(a) of the Health Insurance Portability and Accountability Act of 1996, Public Law 104–191, directed the Secretary to establish and maintain a national health care fraud and abuse data collection program for the reporting and disclosing of certain final adverse actions taken against health care practitioners, providers, or suppliers. This data bank is known as the Healthcare Integrity and Protection Data Bank (HIPDB). Section 1128E required Federal and State government agencies and health plans to report to the HIPDB the following final adverse actions: Licensing and certification actions; criminal convictions and civil judgments related to the delivery of health care services; exclusions from Federal or State health care programs; and other adjudicated actions or decisions. Federal and State government agencies and health plans have access to this information. Individual practitioners, providers, and suppliers may self-query the HIPDB.
The HIPDB began collecting reports in November 1999. Requirements of both HCQIA and section 1921 overlap with the requirements under section 1128E, although each law has unique characteristics, including differences in the types of reportable actions and the types of agencies, entities, and officials with access to information. For example, all three reporting schemes require the reporting of State licensure actions. The HCQIA, however, only requires the reporting of licensure actions taken against physicians and dentists that are based on professional competence or conduct. In contrast, sections 1921 and 1128E do not have a requirement that reportable adverse licensure actions be based on professional competence or conduct and also differ in the types of subjects reported. In addition, sections 1921 and 1128E authorize access to many of the same types of agencies, organizations, and officials. For example, both statutes authorize access by law enforcement agencies, agencies that administer or pay for health care services or programs, and State licensing authorities. Private-sector hospitals and health care service providers are only able to access information reported under the HCQIA and section 1921, but not under section 1128E.
Section 6403 of the Patient Protection and Affordable Care Act of 2010 (hereinafter referred to as section 6403), Public Law 111–148, amends sections 1921 and 1128E to eliminate duplication between the HIPDB and the NPDB, and requires the Secretary to establish a transition period for transferring data collected in the HIPDB to the NPDB and to cease HIPDB operations. Information previously collected and disclosed through the HIPDB will then be collected and disclosed through the NPDB. No new data elements have been added as a result of section 6403. All actions currently reported in the NPDB and HIPDB will be reported to the NPDB.
All security standards that are currently in place to protect the confidentiality of information in the Data Banks will be retained. HRSA follows the National Institute of Standards and Technology (NIST) security guidelines. More specifically, the Data Bank has extensive operational, management, and technical controls that ensure the security of the system and protect the data in the system. The Data Bank contains information classified under the Privacy Act that is considered personally identifiable information (PII). On an annual basis, the Data Bank conducts a detailed security review process that tests the effectiveness of the security controls to ensure the PII in the system remains safe. Finally, every three years, the Data Bank is Certified and Accredited (C&A) as a requirement to have an Authority to Operate (ATO), in order to function as a Federal system.
The specific amendments section 6403 makes to sections 1921 and 1128E are described in greater detail in the paragraphs below.
Subsection (a) of section 6403 amends section 1128E to require reporting to the NPDB instead of the HIPDB. Subsection (a) also eliminates requirements in section 1128E related to reporting by State agencies; conforms the requirements for reporting Federal licensing and certification actions to those that apply to State agencies under section 1921; provides that the information reported pursuant to section 1128E will be available to the agencies, entities, and officials authorized to access information reported pursuant to section 1921; and authorizes the Secretary to establish reasonable fees for the disclosure of the information, with no exception from the fee for Federal government agencies. Finally, subsection (a) requires the Secretary, in implementing the amendments to section 1128E, to provide for the maximum appropriate coordination between part B of the HCQIA and section 1921.
Subsection (b) of section 6403 adds to section 1921 the State agency reporting requirements that were eliminated from section 1128E by subsection (a). These State actions, taken against health care practitioners, providers, and suppliers, include State licensing and certification actions, State health care-related criminal convictions and civil judgments, exclusions from State health care programs, and other adjudicated actions or decisions. Subsection (b) also conforms the requirements for reporting State licensing and certification actions to those that apply to Federal agencies under section 1128E and makes amendments to expand the data access provisions of section 1921(b) so that entities that were authorized to access final adverse action information reported to the HIPDB by State agencies under section 1128E will retain access to that information when it is reported to the NPDB under section 1921. Subsection (b) also adds new provisions under section 1921 that are modeled on similar provisions in section 1128E. These new provisions require the Secretary to disclose reported information to a subject of a report and establish other requirements designed to ensure that the information reported pursuant to section 1921 is accurate; authorize the Secretary to establish or approve reasonable fees for the disclosure of information reported pursuant to section 1921; and provide protection against liability in a civil action for entities reporting information as required by section 1921 (so long as such entities have no knowledge of the falsity of the information). Subsection
Subsection (c) of section 6403 amends section 1128C of the Social Security Act regarding the HHS Office of Inspector General's responsibilities with respect to section 1128E by deleting the HHS Office of Inspector General's responsibility to provide for the reporting and disclosure of certain final adverse actions against health care providers, suppliers, or practitioners pursuant to the data collection system established under section 1128E. Subsection (d) establishes requirements for a transition process; authorizes the Department of Veterans Affairs to access, free of charge for one year, information that was formerly reported only to the HIPDB; describes the availability of additional funds for the transition process, if necessary; and includes the effective date for the section.
Effectively, in addition to transferring HIPDB data and operations to the NPDB, section 6403 transfers all section 1128E reporting requirements by State agencies to section 1921, thereby eliminating duplication in certain State agency reporting requirements under both statutes, while leaving Federal agency and health plan reporting requirements under the authority of section 1128E. Section 6403 also creates a common list of queriers for section 1921 and section 1128E data. There are exceptions to this common querier list. Hospitals and other health care entities, professional societies, and QIOs have access to section 1128E data as well as licensing and certification actions under section 1921, but have no additional access to data as a result of section 6403. By maintaining many of the same reporting requirements and by maintaining different levels of access depending on who is requesting information in section 6403, Congress further indicated its intent that, despite the transition of HIPDB operations to the NPDB, original reporting and querying requirements remain the same to the greatest extent possible, while ensuring the maximum coordination among the three statutes. Section 6403 does not affect reporting requirements or query access under the HCQIA, so existing requirements under the HCQIA for hospitals, other health care entities, professional societies, or medical malpractice payers will not change.
The reporting and querying requirements of sections 1921 and 1128E, as amended by section 6403, are described in greater detail below.
As amended by section 6403, section 1921 requires each State to have in effect a system of reporting licensure and certification actions taken against a health care practitioner or entity by a State licensing or certification agency. Section 6403 defines a State licensing or certification agency to include State licensing authorities, peer review organizations, and private accreditation entities. Licensing and certification actions include certain adverse actions taken by a State licensing authority as well as any negative action or finding that a State licensing authority, a peer review organization, or a private accreditation entity has concluded against a health care practitioner or entity. Each State also must have in effect a system of reporting information with respect to any final adverse action (not including settlements in which no findings of liability have been made) taken against a health care practitioner, provider, or supplier by a State law or fraud enforcement agency. These final adverse actions include criminal convictions or civil judgments in State court related to the delivery of health care services, exclusions from participation in a State health care program, and any other adjudicated action or decision. In addition, final adverse actions include any licensure or certification action taken against a supplier by a State licensing or certification agency. Section 1921 information is now available to agencies administering Federal health care programs, including private entities administering such programs under contract; State licensing or certification agencies, and Federal agencies responsible for the licensing and certification of health care practitioners, providers, and suppliers; State agencies administering or supervising the administration of State health care programs; health plans; State law or fraud enforcement agencies; and the U.S. Attorney General and other law enforcement officials as the Secretary deems appropriate. In addition, QIOs, as well as hospitals, professional societies, and other health care entities have access to “licensure and certification actions” reported under section 1921. These entities do not have access to “final adverse actions” added to section 1921 by section 6403. Potential subjects of section 1921 reports, including health care practitioners, health care entities, providers, and suppliers, may self-query.
Section 6403 amends section 1128E to require the Secretary to maintain a national health care fraud and abuse data collection program under this section for the reporting of certain final adverse actions against health care practitioners, providers, and suppliers. The Secretary shall furnish the information collected under section 1128E to the NPDB. Federal government agencies and health plans are required to report to the NPDB the following final adverse actions: licensing and certification actions; criminal convictions and civil judgments in Federal or State court related to the delivery of health care services; exclusions from Federal health care programs; and other adjudicated actions or decisions.
The information collected under section 1128E shall be available from the National Practitioner Data Bank to all agencies, authorities, and officials which are authorized under the amended section 1921 access provisions. However, under the section 1921 access provisions, hospitals, other health care entities, professional societies, and QIOs are only authorized to receive certain section 1921 information. Individual practitioners, providers, and suppliers may self-query the NPDB to receive section 1128E information.
The table below further illustrates the impact that section 6403 has on current data bank requirements, presenting the requirements for the HCQIA, section 1921 and 1128E before the passage of section 6403, and the proposed requirements after passage of section 6403.
The table is only a summary of the statutory reporting and querying requirements before and after passage of section 6403. All elements in the table, including definitions of terms used, are detailed in various sections of this proposed rule.
Sections 6403(a)(3) and 6403(b)(4) require the Secretary to provide for the maximum appropriate coordination among HCQIA, section 1921, and section 1128E when implementing the provisions of section 6403. We have made significant efforts to develop this proposed rule in a manner that minimizes the burden on reporters. Reporters previously responsible for reporting adverse actions to both the NPDB and HIPDB only needed to submit one report per action, provided that reporting was done through the Department's web-based system that sorted the appropriate actions into the HIPDB, the NPDB, or both. Similarly, under the revised regulations, reporters will only need to submit one report per action.
Congress's mandate that the Secretary provide for the maximum appropriate coordination among the statutes makes it necessary, in certain cases, to make slight modifications when combining sometimes overlapping statutory requirements. These instances are described in the paragraphs below, and in the discussion of the proposed regulatory definitions.
We clarified statutory language used to describe report subjects in several ways. First, we used the term “health care practitioner, physician, and dentist” throughout these regulations to refer to “health care practitioner” report subjects for sections 1921 and 1128E. We are clarifying that the “health care practitioner” report subjects under both sections 1921 and 1128E include health care practitioners, physicians, and dentists to help ensure consistency in the merged data, as the NPDB definition of “health care practitioner” excludes physicians and dentists whereas the HIPDB definition includes physicians and dentists. The definitions for physician and dentist are provided for separately and therefore they are included as report subjects.
Second, we clarified statutory language with respect to report subjects by consistently using the term “entity, provider, and supplier” in referring to section 1921 entity report subjects. Both original and amended section 1921 reporting requirements include certain adverse actions taken against a “health care practitioner or entity,” and NPDB regulations use the HCQIA definition of “health care entity” to define the range of these report subjects. It is clear from the context of section 6403 that the use of the term “entity” also includes “supplier” subjects. Specifically, section 6403(b), which added the disclosure and correction provision in section 1921(d), refers only to “health care practitioner” and “entity” report subjects. It is not reasonable to conclude that Congress intended to prevent providers and suppliers from having access to their own reports or being able to dispute a report, while giving that ability to health care practitioners and entities. Although the provision only uses the terms practitioner and entity it must be read broadly to keep the Congressional intent of not making significant changes to current reporting and querying requirements. Therefore, we apply this provision to all section 1921 report subjects, including health care practitioners, physicians, dentists, entities, providers, and suppliers.
Finally, the proposed rule sometimes refers to “practitioner, physician, dentist, provider, and supplier” as one grouping. The manner in which the regulation defines supplier may be read to include physicians and dentists. In the proposed rule, where physicians
HIPDB regulations include sanctions against Federal and State agencies and health plans for failure to report as required. For Federal and State government agencies, the Secretary provides for publication of a public report that identifies those agencies that have failed to report information as required. Health plans that fail to report information as required under section 1128E are subject to a civil money penalty of up to $25,000 for each action not reported. While section 6403 transfers State agency reporting requirements from section 1128E to section 1921, we plan to maintain existing sanction authority (publication of a public report) for those State agencies that are required to report licensure and certification actions, exclusions from State health care programs, criminal convictions and civil judgments in a State court, and other adjudicated actions or decisions. Further, we plan to maintain existing sanction authority, as stated above, and which currently exists in section 1128E, for those Federal agencies that fail to report. These sanctions are currently part of the agency's compliance plan, and we are attempting to maintain consistency between current and future Data Bank operational policy.
The authorization dates for collecting adverse actions under section 1921 and section 1128E are based on the original legislation for the requirements and are unchanged by the passage of section 6403. Amendments made by section 6403 represent a reorganization of existing statutory requirements and not an imposition of new actions. Therefore, the passage section 6403 does not affect reporters' obligations to report action back to the dates currently in use for the system. Actions taken by State agencies transferred from section 1128E to section 1921 will retain their original authorization dates.
The current regulations governing the NPDB which are not expanded or modified by section 6403 are not subject to review or comment under this Notice of Proposed Rulemaking, e.g., reporting requirements for medical malpractice payers, and eligible entities that may query the NPDB under the authority of the HCQIA.
We describe the proposed amendments below according to the sections of the regulations which they affect.
The proposed rule amends this section by incorporating the statutory provisions for section 1128E of the Social Security Act.
The proposed rule amends this section by revising the reporting requirements to include those organizations and agencies required to report under section 1921 and section 1128E (both as amended by section 6403).
The proposed rule adds existing definitions from the HIPDB regulations as well as new statutory definitions to this section. Because this proposed rule combines requirements already specified in current NPDB and HIPDB regulations, it was necessary to modify the regulatory definitions for certain terms or combine similar regulatory definitions for the same term. In one instance, for the term “Act,” a definition is deleted in its entirety. We believe this approach is consistent with the mandate that the Secretary provide for the maximum appropriate coordination among the HCQIA, section 1921, and section 1128E. This proposed rule also clarifies new statutory definitions. These clarifications merely provide additional examples of the scope of the definitions.
As a result, we propose to add the following new terms to this section, which are in the current HIPDB regulations:
The term “civil judgment” is currently defined in the HIPDB regulations, and we have not modified this existing definition.
The term “criminal conviction” is currently defined in the HIPDB regulations, and we have not modified this existing definition.
The term “exclusion” is currently defined in the HIPDB regulations, and we have not modified this existing definition.
(a) The U.S. Department of Justice;
(b) The U.S. Department of Health and Human Services;
(c) Federal law enforcement agencies, including law enforcement investigators;
(d) Any other Federal agency that either administers or provides payment for the delivery of health care services, including, but not limited to the U.S. Department of Defense and the U.S. Department of Veterans Affairs; and
(e) Federal agencies responsible for the licensing and certification of health care practitioners, physicians, dentists, providers, and suppliers.
The definition of the term “government agency” is set forth in section 1128E(g)(3) of the Social Security Act to describe the range of Federal government agencies that are required to report under section 1128E (as revised by section 6403). These proposed rules refer to the section 1128E term, “government agencies,” as “Federal government agencies” to provide clarification between the Federal agencies required to report under section 1128E and certain State agencies (which are defined separately) that must report under section 1921. These proposed rules specify that the definition includes, but is not limited to, those agencies listed.
The term “health care provider” is currently defined in HIPDB regulations. We slightly modified this definition by replacing the phrase “means a provider” with “means, for purposes of this part, a provider” to avoid any confusion with the manner that Medicare defines such term.
The term “health care supplier” is currently defined in HIPDB regulations. We slightly modified this definition by replacing the phrase “means a provider” with “means, for purposes of this part, a provider” to avoid any confusion with the manner that Medicare defines such term.
(a) A policy of health insurance;
(b) A contract of a service benefit organization;
(c) A membership agreement with a health maintenance organization or other prepaid health plan;
(d) A plan, program, agreement, or other mechanism established, maintained, or made available by a self-insured employer or group of self-insured employers, a health care practitioner, physician, dentist, provider, or supplier group, third-party administrator, integrated health care delivery system, employee welfare association, public service group, or organization or professional association;
(e) An insurance company, insurance service, or insurance organization that is licensed to engage in the business of selling health care insurance in a State and which is subject to State law which regulates health insurance; and
(f) An organization that provides benefit plans whose coverage is limited to outpatient prescription drugs.
The term “health plan” is currently defined in the HIPDB regulations. We slightly modified this definition by replacing the phrase “practitioner, provider, or supplier” with the phrase “health care practitioner, physician, dentist, provider, or supplier.” We slightly modified this definition by replacing the phrase “means a plan” with “means, for purposes of this part, a plan” to avoid any confusion with the HIPAA definition. Additionally, we broadened the definition to respond to an expressed need to include stand-alone prescription drug plans, like those offered under the Medicare Part D program.
The term “other adjudicated actions or decisions” is currently defined in HIPDB regulations. To reflect a change in terminology made by section 6403, we modified this definition by replacing the term, “State government agency” with “State law or fraud enforcement agency” when referring to those State agencies that take “other adjudicated actions or decisions.”
(a) A State law enforcement agency;
(b) A State Medicaid fraud control unit (as defined in section 1903(q) of the Social Security Act); and
(c) A State agency administering (including those providing payment for services) or supervising the administration of a State health care program (as defined in section 1128(h) of the Social Security Act).
Section 6403(b)(3) added the term “State law or fraud enforcement agency” in section 1921(g)(2) of the Social Security Act to describe those State agencies (in addition to State licensing or certification agencies) that were formerly required to report final adverse actions under section 1128E and that are now required to report those actions under section 1921. We added “a State agency administering (including those providing payment for services) a State health care program” as an example of an agency that would report exclusions from State health care programs. These State agencies also would take certain other adjudicated actions or decisions defined in the regulations, such as “personnel-related actions,” when providing health care services through State-owned hospitals and other facilities. Because these agencies have a role in investigating and preventing health care fraud and abuse, they were included in the definition.
Section 6403(b)(3) amended section 1921 by adding the term “State licensing or certification agency.” This term, which is defined in section 1921(g)(1) of the Social Security Act, is intended to combine two categories of current NPDB and HIPDB reporters: (1) State agencies responsible for licensing health care practitioners and entities (also referred to in NPDB regulations as “State licensing and certification authorities”), peer review organizations, and private accreditation entities (all of which currently report to the NPDB under section 1921); and (2) State agencies responsible for the licensing and certification of health care practitioners, providers, and suppliers (which report to the HIPDB under section 1128E). We also clarified the definition by providing examples from the HIPDB regulations of the scope of State agencies that license or certify health care practitioners, physicians, dentists, health care entities, providers, and suppliers.
In addition to the new terms we propose to add in this section, we also propose to slightly amend the definitions of the following existing terms. These amendments are necessary to ensure the maximum appropriate coordination among requirements for the HCQIA, and sections 1921 and 1128E of the Social Security Act.
For this definition, we deleted the reference to “the Act” and inserted the complete statutory reference for the HCQIA. This change was necessary to avoid confusion among the different statutes governing NPDB operations.
(a) A hospital;
(b) An entity that provides health care services, and engages in professional review activity through a formal peer review process for the purpose of furthering quality health care, or a committee of that entity; or
(c) A professional society or a committee or agent thereof, including those at the national, State, or local level, of physicians, dentists, or other health care practitioners that engages in professional review activity through a formal peer review process, for the purpose of furthering quality health care.
For purposes of paragraph (b) of this definition, an entity includes: a health maintenance organization which is licensed by a State or determined to be qualified as such by the Department of Health and Human Services; and any group or prepaid medical or dental practice which meets the criteria of paragraph (b).
To avoid any confusion with the manner that Medicare defines such terms, we replaced the phrase “health care entity means” with “health care entity means, for the purposes of this part.”
The current NPDB and HIPDB definitions for the term “health care practitioner” have slight differences, although both Data Banks ultimately collect information on the same range of practitioners. First, the NPDB definition excludes physicians and dentists because the HCQIA provides separate definitions for physicians and dentists. Conversely, the HIPDB definition for “health care practitioner” includes physicians and dentists. Second, the HIPDB definition includes individuals who, without authority, hold themselves out to be licensed or authorized. While this language regarding individuals who hold themselves out to be licensed or authorized is not explicitly stated in the original NPDB definition of “health care practitioner,” it is included in the NPDB definitions for “physician” and “dentist,” and has been part of NPDB “health care practitioner” definition in reporting guidance since the NPDB began operations. A final difference in the two regulatory definitions is that the HIPDB definition also refers to the terms “licensed health care practitioner,” “licensed practitioner,” and “practitioner.”
To reconcile these differences in definitional language, while still maintaining the statutory requirements, we made two changes to the NPDB definition. First, we expanded the original NPDB term of “health care practitioner” to include the additional terms used in the HIPDB definition (i.e., “licensed health care practitioner, licensed practitioner, or practitioner”). Second, we included in the definition individuals who, without authority, hold themselves out to be licensed or authorized. Although this proposed definition excludes physicians and dentists (and the original HIPDB definition does not), we refer to “health care practitioners, physicians, and dentists” throughout these proposed rules to ensure that the statutory requirements are fulfilled.
To avoid any confusion with the manner that Medicare defines such terms, we replaced the phrase “means an entity” with “means, for purposes of this part, an entity.”
(a) A final determination of denial or termination of an accreditation status from a private accreditation entity that indicates a risk to the safety of a patient(s) or quality of health care services;
(b) Any recommendation by a peer review organization to sanction a health care practitioner, physician, or dentist; or
(c) Any negative action or finding that under the State's law is publicly available information and is rendered by a Federal or State licensing or certification authority, including but not limited to, limitations on the scope of practice, liquidations, injunctions, and forfeitures. This definition also includes final adverse actions rendered by a Federal or State licensing or certification authority, such as exclusions, revocations, or suspension of license or certification, that occur in conjunction with settlements in which no finding of liability has been made (although such a settlement itself is not reportable under the statute). This definition excludes administrative fines or citations and corrective action plans and other personnel actions, unless they are:
(1) Connected to the delivery of health care services, or
(2) Taken in conjunction with other adverse licensure or certification actions such as revocation, suspension, censure, reprimand, probation, or surrender.
To date, we have allowed reporting entities to apply their own specific definition of negative action or finding. This provides States and other reporting entities the flexibility to interpret their own statutes and governing policies to meet the reporting requirements of the NPDB and HIPDB. We have also received comments from reporting entities that suggest a need for a more formal definition of negative finding. We welcome comments that address the definition of any negative action or finding, specifically comments that clarify the definition of negative finding.
Both NPDB and the HIPDB regulations defined the term “negative action or finding.” The NPDB definition was limited to negative actions or findings by peer review organizations, private accreditation entities, and State authorities that license (including licensure and certification) health care practitioners and entities. The HIPDB definition included negative actions or findings by Federal or State agencies responsible for the licensing or certification of health care practitioners, providers, and suppliers. Our proposed definition incorporates language from the HIPDB definition to ensure that the NPDB will collect the full range of section 1921 and section 1128E reporting requirements for Federal and State licensing and certification authorities.
In addition, we slightly modified language in the original HIPDB definition regarding the reporting of administrative fines or citations, and corrective action plans and other personnel actions, to make it consistent with existing section 1921 language. Under our proposed definition, administrative fines or citations, and corrective action plans and personnel actions, must be reported if they are either (1) related to the delivery of health care services or (2) taken with another reportable action. The “or” replaces the “and” in the original HIPDB definition. While this change may slightly expand the reporting requirements for certain Federal agencies, we believe it is fully consistent with Congress's efforts to otherwise harmonize Federal and State licensure and certification reporting requirements.
(a) Evaluates and seeks to improve the quality of health care provided by a health care entity, provider, or supplier;
(b) Measures a health care entity's, provider's, or supplier's performance based on a set of standards and assigns a level of accreditation;
(c) Conducts ongoing assessments and periodic reviews of the quality of health care provided by a health care entity, provider, or supplier; and
(d) Has due process mechanisms available to health care entities, providers, or suppliers.
In the current NPDB regulations, private accreditation entities are limited to those that accredit health care entities. The definition excludes private accreditation entities that accredit health care practitioners. While the term “entities,” with respect to subjects of section 1921 reports, is now understood to include providers and suppliers (and the term “suppliers” includes individuals as well as organizations), it is still our understanding that accreditation organizations only accredit organizations and business entities, and not individuals. Therefore it is our expectation that, under the limited reporting requirements that apply to accreditation organizations, private accreditation entities would only report organizations and business entities. To the extent that an accreditation organization also accredits sole proprietorships and takes reportable actions against them, we anticipate that these sole proprietorships would be reported to the NPDB as organization, and not as individual, subjects.
Both the NPDB and the HIPDB regulations included definitions for “voluntary surrender.” The HIPDB regulations referred to this term as “voluntary surrender,” while the NPDB regulations used the term “voluntary surrender of license.” In these proposed rules, we refer to this term as “voluntary surrender of license or certification” for two reasons. First, the revised term clarifies the scope of voluntary surrenders to be reported under sections 1921 and 1128E (i.e., Federal and State licensing and certification actions). Second, the change will prevent confusion among organizations that report surrenders of clinical privileges under the HCQIA.
The NPDB and HIPDB regulatory definitions for voluntary surrender were nearly identical with respect to voluntary surrenders of State licensure. However, the HIPDB definition also contained language with respect to surrender of Federal licensure, as well as Federal and State certification (including certification agreements or contracts for participation in Federal or State health care programs). This additional HIPDB language was included in the NPDB definition to ensure that original HIPDB reporting requirements remained unchanged.
In addition to the definitions we have added or clarified, we also propose to eliminate the term “Act” from section 60.3. We chose this approach to avoid confusion when referencing the different statutes governing NPDB operations. NPDB regulations currently define “Act” as the Health Care Quality Improvement Act of 1986, title IV of Public Law 99–660, as amended. HIPDB regulations define “Act” as the Social Security Act. We instead reference each of these statutes (as well as other governing statutes) by name where they appear in the regulations.
We also propose to use the NPDB definition for the term, “State,” as it relates to all requirements under the HCQIA and sections 1921 and 1128E. Both NPDB and HIPDB regulations include a definition for “State,” however, they differ in that the NPDB definition includes two additional territories (American Samoa and the Northern Mariana Islands) that are not part of the HIPDB definition. While this change to the original HIPDB regulatory definition may slightly modify requirements for certain organizations, this should not be overly burdensome as these territories have reported few, if any, actions in the past. We believe the simplicity of this change outweighs the very slight potential increase in burden based on the addition of these two territories. Furthermore, the NPDB definition of “State” is included in statute, while the HIPDB definition is not. Therefore, the Secretary has greater flexibility to conform the definition to that of the NPDB.
We propose to amend this section by changing the reference to “§ 60.11” to read “§ 60.12” and including references to the newly added §§ 60.10, 60.11, 60.13, 60.14, 60.15, and 60.16. We also remove the reference to reporting to the Board of Medical Examiners.
We propose to amend this section of the existing NPDB regulations by:
a. Revising the introductory text of this section to include references to the newly added §§ 60.10, 60.13, 60.14, 60.15, and 60.16 and redesignated §§ 60.11 and 60.12;
b. Adding the August 21, 1996 legacy reporting date for section 1128E actions; and
c. Removing paragraphs (a)–(d) and replacing them with a list of reportable actions. This list reflects the combination of reporting categories from the NPDB and the HIPDB regulations.
The proposed rule brings the HIPDB reporting time frame in line with the NPDB and eliminates references from the current HIPDB regulation to reporting by the close of an entity's next monthly reporting cycle. The proposed rule also eliminates from the current NPDB regulation the requirement for reporting within a 15-day window for those entities that have a dual obligation to report to a State authority. Thus all reports must be made within 30-calendar days from the date the final adverse action was taken. This rule also clarifies the State reporting obligations for persons or entities responsible for submitting malpractice payments (§ 60.7), negative actions or findings (§ 60.11), and adverse actions (§ 60.12). Reports for these three categories are submitted directly to the NPDB and a copy of the report must be mailed to the appropriate State licensing or certification agency. This has been the operational practice of the NPDB since 1990 and fulfills the statutory State reporting obligation for these reporters.
We propose to amend this section by:
a. Revising the title to include reporting of whether an action is on appeal. This information currently must be reported for final adverse actions specified in HIPDB regulations;
b. Revising the first and last sentences in paragraph (b) to include the requirement to report revisions to actions for all licensure and certification actions, criminal convictions, civil judgments, exclusions, and other adjudicated actions or decisions. The HIPDB regulations require reporting of revisions to these actions;
c. Revising the third sentence of paragraph (b) to include the requirement to report when an action is on appeal for licensure and certification actions, criminal convictions, civil judgments, exclusions, and other adjudicated actions; and
d. Adding a new sentence at the end of paragraph (a) and new paragraphs (c) and (d) to clarify current data bank policy regarding notifying subjects of a report and the steps subjects may take to ensure the information reported is accurate. These clarifications generally are included in HIPDB regulations, but the same policy has applied to the NPDB as well.
(We propose no changes to this section.)
We propose to amend this section by revising the reference to “§ 60.11” in the last sentence of paragraph (c) to read “§ 60.12.” This change reflects the fact that § 60.11 was redesignated as § 60.12 in these proposed rules. We are also adding “Individual Tax Identification Number (ITIN)” to § 60.8(b)(4) after the word Social Security Number.
We propose to amend § 60.9 to reflect the changes made by section 6403 to the section 1921 licensure action reporting requirements by State agencies. The title of this section was revised to include licensure and certification actions, as required under section 6403(b)(1)(A)(i). The term “certification” has two distinct meanings in the current NPDB and HIPDB regulations. First, in both sets of regulations, “certification” is related to licensure. Licensure includes certification and other forms of authorization to provide health care services, and, based on their individual laws and requirements, States may “license,” “certify,” or “register” certain types of health care practitioners, health care entities, providers, or suppliers. For example, States may certify nurse's aides. Second, in section 1128E and the HIPDB regulations, the term “certification” is also used to refer to certification of a health care practitioner, provider, or supplier to participate in a Federal or State health care program. In this context, certification includes certification agreements and contracts for participation in a government health care program. State certification actions such as termination of a hospital's Medicaid participating provider agreement or contract are now being reported to the NPDB under this part.
We also propose to modify paragraphs (a) and (b) to reflect the range of subjects reported under this section to include health care practitioners, physicians, dentists, health care entities, providers, and suppliers. In addition, we propose to amend paragraphs (a)(1) through (a)(4) to reflect changes to those reporting requirements made by section 6403(b)(1)(A), which intended to harmonize State licensure and certification action reporting requirements with Federal licensure and certification action reporting
We propose to redesignate § 60.10 as § 60.11, and add a new § 60.10 to implement the reporting requirements for Federal licensure and certification agencies. These agencies must report to the NPDB the following final adverse actions that are taken against a health care practitioner, physician, dentist, provider, or supplier (regardless of whether the final adverse action is the subject of a pending appeal):
(a) Formal or official actions, such as revocation or suspension of a license or certification agreement or contract for participation in Federal health care programs (and the length of any such suspension), reprimand, censure, or probation;
(b) Any dismissal or closure of the proceedings by reason of the health care practitioner, physician, dentist, provider, or supplier surrendering their license or certification agreement or contract for participation in Federal health care programs, or leaving the State or jurisdiction;
(c) Any other loss of the license or loss of the certification agreement or contract for participation in a Federal health care program, or the right to apply for, or renew, a license or certification agreement or contract of the health care practitioner, physician, dentist, provider, or supplier, whether by operation of law, voluntary surrender, nonrenewal (excluding nonrenewals due to nonpayment of fees, retirement, or change to inactive status), or otherwise; and
(d) Any other negative action or finding by such Federal agency that is publicly available information.
Further, we are substituting the acronym “ITIN” in place of the word “Individual Tax Identification Number” in § 60.10(b)(1)(ii).
We propose to redesignate § 60.11 as § 60.12 and add redesignated § 60.10 as § 60.11. In accordance with the changes to the scope of “entity” report subjects required by section 6403, we propose to amend paragraph (a) of this section to include the reporting of health care practitioners, physicians, dentists, health care entities, providers, and suppliers. While peer review organizations will continue to report negative actions or findings taken against health care practitioners, physicians, or dentists, private accreditation entities are required to report actions taken against health care entities, providers, or suppliers. Paragraph (a) is revised to reflect that the reporting entity, (i.e., peer review organization or private accreditation entity) not the State, must submit reports directly to the NPDB and then provide a copy of the report to the appropriate State licensing or certification authority by mail. The remaining paragraphs (b)—(d) are accordingly modified to reflect this reporting scheme.
We propose to redesignate § 60.12 as § 60.17 and add redesignated § 60.11 as § 60.12. As done with § 60.11, the reporting scheme under paragraph (a) is revised to reflect that health care entities send reports directly to the NPDB and provide a copy of the report to the State Board of Medical Examiners.
Further, we propose to slightly modify the heading of § 60.12(a) to read “Reporting by Health Care Entities to the NPDB.”
We propose to redesignate § 60.13 as § 60.18, and add a new § 60.13 to implement the requirements of section 6403. Under this provision, Federal and State prosecutors are required to report criminal convictions against health care practitioners, physicians, dentists, providers, or suppliers related to the delivery of a health care item or service (regardless of whether the conviction is the subject of a pending appeal).
We propose to redesignate § 60.14 as § 60.19, and add a new § 60.14 to implement the requirements of section 6403. Under this provision Federal and State attorneys and health plans must report civil judgments against health care practitioners, physicians, dentists, providers, or suppliers related to the delivery of a health care item or service (regardless of whether the civil judgment is the subject of a pending appeal).
We propose to redesignate § 60.15 as § 60.20, and add a new § 60.15 to implement the requirements of section 6403. Under this provision, Federal government agencies and State law and fraud enforcement agencies must report health care practitioners, physicians, dentists, providers, and suppliers excluded from participating in Federal or State health care programs, including exclusions resulting from a settlement that is not reported because no findings or admissions of liability have been made (regardless of whether the exclusion is the subject of a pending appeal).
We propose to redesignate § 60.16 as § 60.21, and add a new § 60.16 to implement the requirements of section 6403. Under this provision, Federal government agencies, State law and fraud enforcement agencies, and health plans must report other adjudicated actions or decisions as defined in § 60.3 related to the delivery, payment or provision of a health care item or service against health care practitioners, physicians, dentists, providers, and suppliers (regardless of whether the other adjudicated action or decision is subject to a pending appeal).
As previously noted, we propose redesignating § 60.12 as § 60.17.
We propose to redesignate § 60.13 as § 60.18. We propose to amend § 60.18, paragraph (a) of the existing NPDB regulations to clarify to whom information under the HCQIA as well as the amended sections 1921 and 1128E components of the NPDB would be made available by:
a. Redesignating § 60.13 as § 60.18 to implement the requirements of section 6403;
b. Revising the reference to “§ 60.11” in paragraph (a)(1) to read “§ 60.12;”
c. Revising the reference to “§ 60.12” in paragraph (a)(1)(v) to read “§ 60.17;”
d. Adding the references to include §§ 60.10, 60.11, 60.13, 60.14, 60.15, and 60.16 in paragraph (a)(2);
e. Revising paragraph (a)(2)(i) to include the following language in parentheses after the word administering: “including those providing payment for services;”
f. Replacing the text in paragraphs (a)(2), (ii), (iv), (v), (vi), and (vii) to reflect the revised list of entities which may receive information reported under §§ 60.9, 60.10, 60.11, 60.13, 60.14, 60.15 and 60.16; and
g. Inserting paragraph (a)(2)(viii).
Based on section 6403 amendments, State licensing or certification agencies and Federal agencies responsible for the licensing and certification of health care practitioners, physicians, dentists, providers and suppliers are authorized to query the NPDB under section 1921 and 1128E. We understand the statutory language to limit query access to those State licensing and certification agencies that license or certify health care practitioners, physicians, dentists, entities, providers, or suppliers. These agencies would include only authorities of the State responsible for licensure or certification and would exclude peer review organizations and private accreditation entities. Such an interpretation of the statutory language is consistent with the goal of maintaining existing NPDB and HIPDB reporting and querying requirements to the greatest extent possible.
Consistent with section 6403 language, hospitals and other health care entities, professional societies, and QIOs will have access to section 1921 information reported in §§ 60.9 and 60.11, and section 1128E information reported in §§ 60.10, 60.13, 60.14, 60.15, and 60.16. Access to the section 1921 information for these groups was not affected by the passage of section 6403. Section 6403 expands the access that these groups have with respect to Federal information under section 1128E.
We propose to amend redesignated § 60.19(a) to reflect, based on section 6403 amendments, the full range of subjects that will be sent a copy of a report submitted about them.
We propose to slightly amend redesignated § 60.20 so that it reflects the limitations on disclosure provisions based on current NPDB and HIPDB regulatory language. These confidentiality requirements would apply to all information obtained from the NPDB.
The dispute process for the NPDB and the HIPDB is identical, however, HIPDB regulations currently provide a more detailed account of the process than do the NPDB regulations. Therefore, we are proposing to amend this section to include the HIPDB regulatory provisions for disputing the accuracy of data bank information.
Section 6403 added a provision to section 1921 that provides reporters of NPDB information immunity from liability in a civil action filed by the subject of a report, unless the individual, entity, or authorized agent submitting the report has actual knowledge of the falsity of the information contained in the report. HIPDB regulations also contain a similar immunity provision. We propose to add this provision, which will apply to all individuals who, and entities and authorized agents that, report information to the NPDB.
Reporting requirements have been established through Title IV of the Health Care Quality Improvement Act of 1986, Section 1921 of the Social Security Act, as amended by the Omnibus Budget Reconciliation Act of 1990, and Section 1128E of the Social Security Act as added by Section 221(a) of the Health Insurance Portability and Accountability Act of 1996, and through their respective regulatory procedures. As a result, most reporters and queriers have submitted information to and received information from the NPDB and the HIPDB since 1996. A few reporters, accreditation organizations, and peer review organizations, have submitted information to the NPDB since 2010.
As a result of Section 6403 of the Patient Protection and Affordable Care Act of 2010, the HIPDB will cease to function. Data contained in the HIPDB will be transferred to the NPDB, along with the reporting and querying functions. Therefore, we will announce through the issuance of notice(s) in the
This proposed rule is technical in nature. It involves transferring data reporting requirements under 45 CFR part 61 for the Healthcare Integrity and Protection Data Bank (HIPDB) to 45 CFR part 60 for the National Practitioner Data Bank (NPDB), another data bank receiving like reports. The result of this transfer does not increase the regulatory burden on affected entities; it alleviates duplication.
Executive Orders 13563 and 12866 direct 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
The Regulatory Flexibility Act (RFA) and the Small Business Regulatory Enforcement and Fairness Act of 1996, which amended the RFA, require HRSA to analyze options for regulatory relief of small businesses. For purposes of the
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4) requires agencies to assess anticipated costs and benefits for any rulemaking that may result in an annual expenditure of $136 million or more by State, local, or tribal governments, or the private sector. HRSA has determined that this rule does not impose any additional mandates on State, local, or tribal governments, or the private sector, that will result in an annual expenditure of $136 million or more. A full analysis under the UMRA is not necessary.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule imposing substantial direct requirements or costs on State and local governments, preempts State law, or otherwise has Federalism implications. In reviewing this proposed rule under the threshold criteria of Executive Order 13132, the Secretary has determined that this rule will not significantly affect the rights, roles, and responsibilities of State or local governments because the actions that are already reported under HIPDB are merely shifting to the NPDB.
This proposed rule does not add any new reporter categories, but information-collection requirements may be expanded for some reporters. For instance, the proposed rule interprets statutory references to “entity” reporting subjects under the amended section 1921 to include “health care providers and suppliers.” As a result, accreditation entities will now be required to report actions taken against providers and suppliers in addition to those subjects that meet the definition of a “health care entity.” However, these sorts of expansions are subtle and will not significantly alter the current requirements under the HIPDB and NPDB regulations. The NPDB and HIPDB regulations contain information collection requirements that have been approved by OMB under the Paperwork Reduction Act of 1995 (PRA) and assigned control numbers 0915–0126 and 0915–0239, respectively.
The only impact of the merging of 45 CFR Part 61 with 45 CFR Part 60 is to eliminate duplication and streamline internal operations. By combining two data banks into a single data bank, the need to capture like information in two data bases is eliminated.
Claims, Fraud, Health, Health maintenance organizations (HMOs), Health professions, Hospitals, Insurance companies, Malpractice, Reporting and recordkeeping requirements.
Billing and transportation services, Durable medical equipment suppliers and manufacturers, Health care insurers, Health maintenance organizations (HMOs), Health professions, Home health care agencies, Hospitals, Pharmaceutical suppliers and manufacturers, Reporting and recordkeeping requirements, Skilled nursing facilities.
For the reasons set forth in the preamble, HHS proposes to revise 45 CFR parts 60 and 61 as follows:
1. The authority citation for 45 CFR part 60 is revised to read as follows:
42 U.S.C. 11101–11152; 42 U.S.C. 1396r–2.
2. The Table of Contents for part 60 is revised to read as follows:
3. Revise part 60 to read as follows:
The Health Care Quality Improvement Act of 1986 (HCQIA), as amended, title IV of Public Law 99–660 (42 U.S.C. 11101
The regulations in this part establish reporting requirements applicable to hospitals, health care entities, Boards of Medical Examiners, professional societies of physicians, dentists, or other health care practitioners which take adverse licensure or professional review actions; State licensing or certification authorities, peer review organizations, and private accreditation entities that take licensure or certification actions or negative actions or findings against health care practitioners, physicians, dentists, health care entities, providers, or suppliers; entities (including insurance companies) making payments as a result of medical malpractice actions or claims; Federal government agencies, State law and fraud enforcement agencies and health plans that take final adverse actions against health care practitioners, physicians, dentists, providers, and suppliers. They also establish procedures to enable individuals or entities to obtain information from the NPDB or to dispute the accuracy of NPDB information.
(a) The U.S. Department of Justice;
(b) The U.S. Department of Health and Human Services;
(c) Federal law enforcement agencies, including law enforcement investigators;
(d) Any other Federal agency that either administers or provides payment for the delivery of health care services, including, but not limited to the U.S. Department of Defense and the U.S. Department of Veterans Affairs; and
(e) Federal agencies responsible for the licensing and certification of health care practitioners, physicians, dentists, providers, and suppliers.
(a) A hospital;
(b) An entity that provides health care services, and engages in professional review activity through a formal peer review process for the purpose of furthering quality health care, or a committee of that entity; or
(c) A professional society or a committee or agent thereof, including those at the national, State, or local level, of physicians, dentists, or other health care practitioners that engages in professional review activity through a formal peer review process, for the purpose of furthering quality health care.
For purposes of paragraph (b) of this definition, an entity includes: a health maintenance organization which is licensed by a State or determined to be qualified as such by the Department of Health and Human Services; and any group or prepaid medical or dental practice which meets the criteria of paragraph (b).
(a) A policy of health insurance;
(b) A contract of a service benefit organization;
(c) A membership agreement with a health maintenance organization or other prepaid health plan;
(d) A plan, program, agreement, or other mechanism established, maintained, or made available by a self-insured employer or group of self-insured employers, a health care practitioner, physician, dentist, provider, or supplier group, third-party administrator, integrated health care delivery system, employee welfare association, public service group or organization or professional association;
(e) An insurance company, insurance service or insurance organization that is licensed to engage in the business of selling health care insurance in a State and which is subject to State law which regulates health insurance; and
(f) An organization that provides benefit plans whose coverage is limited to outpatient prescription drugs.
(a) A final determination of denial or termination of an accreditation status from a private accreditation entity that indicates a risk to the safety of a patient(s) or quality of health care services;
(b) Any recommendation by a peer review organization to sanction a health care practitioner, physician, or dentist; or
(c) Any negative action or finding that, under the State's law, is publicly available information and is rendered by a licensing or certification authority, including but not limited to, limitations on the scope of practice, liquidations, injunctions, and forfeitures. This definition also includes final adverse actions rendered by a Federal or State licensing or certification authority, such as exclusions, revocations, or suspension of license or certification, that occur in conjunction with settlements in which no finding of liability has been made (although such a settlement itself is not reportable under the statute). This definition excludes administrative fines or citations and corrective action plans and other personnel actions, unless they are:
(1) Connected to the delivery of health care services, or
(2) Taken in conjunction with other adverse licensure or certification actions such as revocation, suspension, censure, reprimand, probation, or surrender.
(a) Evaluates and seeks to improve the quality of health care provided by a health care entity, provider, or supplier;
(b) Measures a health care entity's, provider's, or supplier's performance based on a set of standards and assigns a level of accreditation;
(c) Conducts ongoing assessments and periodic reviews of the quality of health care provided by a health care entity, provider, or supplier; and
(d) Has due process mechanisms available to health care entities, providers, or suppliers.
(a) Taken in the course of professional review activity;
(b) Based on the professional competence or professional conduct of an individual physician, dentist, or other health care practitioner which affects or could affect adversely the health or welfare of a patient or patients; and
(c) Which adversely affects or may adversely affect the clinical privileges or membership in a professional society of the physician, dentist, or other health care practitioner.
(d) This term excludes actions which are primarily based on:
(1) The physician's, dentist's, or other health care practitioner's association, or lack of association, with a professional society or association;
(2) The physician's, dentist's, or other health care practitioner's fees or the physician's, dentist's, or other health care practitioner's advertising or engaging in other competitive acts intended to solicit or retain business;
(3) The physician's, dentist's, or other health care practitioner's participation in prepaid group health plans, salaried employment, or any other manner of delivering health services whether on a fee-for-service or other basis;
(4) A physician's, dentist's, or other health care practitioner's association with, supervision of, delegation of authority to, support for, training of, or participation in a private group practice with, a member or members of a particular class of health care practitioner or professional; or
(5) Any other matter that does not relate to the competence or professional conduct of a physician, dentist, or other health care practitioner.
(a) To determine whether the physician, dentist, or other health care practitioner may have clinical privileges with respect to, or membership in, the entity;
(b) To determine the scope or conditions of such privileges or membership; or
(c) To change or modify such privileges or membership.
(a)(1) Is composed of a substantial number of the licensed doctors of medicine and osteopathy engaged in the practice of medicine or surgery in the area and who are representative of the practicing physicians in the area, designated by the Secretary under section 1153, with respect to which the entity shall perform services under this part, or
(2) Has available to it, by arrangement or otherwise, the services of a sufficient number of licensed doctors of medicine or osteopathy engaged in the practice of medicine or surgery in such area to assure that adequate peer review of the services provided by the various medical specialties and subspecialties can be assured;
(b) Is able, in the judgment of the Secretary, to perform review functions required under section 1154 in a manner consistent with the efficient and effective administration of this part and to perform reviews of the pattern of quality of care in an area of medical practice where actual performance is measured against objective criteria which define acceptable and adequate practice; and
(c) Has at least one individual who is a representative of consumers on its governing body.
(a) a State law enforcement agency;
(b) a State Medicaid fraud control unit (as defined in section 1903(q) of the Social Security Act); and
(c) a State agency administering (including those providing payment for services) or supervising the administration of a State health care program (as defined in section 1128(h) of the Social Security Act).
Information must be reported to the NPDB as required under §§ 60.7, 60.8, 60.9, 60.10, 60.11, 60.12, 60.13, 60.14, 60.15 and 60.16 in such form and manner as the Secretary may prescribe.
Information required under §§ 60.7, 60.8, and 60.12 must be submitted to the NPDB within 30 days following the action to be reported, beginning with actions occurring on or after September 1, 1990; information required under § 60.11 must be submitted to the NPDB within 30 days following the action to be reported, beginning with actions occurring on or after January 1, 1992; and information required under §§ 60.9, 60.10, 60.13, 60.14, 60.15, and 60.16 must be submitted to the NPDB within 30 days following the action to be reported, beginning with actions occurring on or after August 21, 1996.
(a) Malpractice payments (§ 60.7);
(b) Licensure and certification actions (§§ 60.8, 60.9, and 60.10);
(c) Negative actions or findings (§ 60.11);
(d) Adverse actions (§ 60.12);
(e) Health Care-related Criminal Convictions (§ 60.13);
(f) Health Care-related Civil Judgments (§ 60.14);
(g) Exclusions from Federal or State health care programs (§ 60.15); and
(h) Other adjudicated actions of decisions (§ 60.16).
Persons or entities responsible for submitting reports of malpractice payments (§ 60.7), negative actions or findings (§ 60.11), or adverse actions (§ 60.12) must additionally provide to their respective State authorities a copy of the report they submit to the NPDB.
(a) Persons and entities are responsible for the accuracy of information which they report to the NPDB. If errors or omissions are found after information has been reported, the person or entity which reported it must send an addition or correction to the NPDB and in the case of reports made under § 60.12, also to the Board of Medical Examiners, as soon as possible. The NPDB will not accept requests for readjudication of the case by the NPDB, and will not examine the underlying merits of a reportable action.
(b) An individual or entity which reports information on licensure or certification, negative actions or findings, clinical privileges, criminal convictions, civil or administrative judgments, exclusions, or adjudicated actions or decisions under §§ 60.8, 60.9, 60.10, 60.11, 60.12, 60.13, 60.14, 60.15, or 60.16 must also report any revision of the action originally reported. Revisions include, but are not limited to, reversal of a professional review action or reinstatement of a license. In the case of actions reported under §§ 60.9, 60.10, 60.13, 60.14, 60.15 or 60.16, revisions also include whether an action is on appeal. Revisions are subject to the same time constraints and procedures of §§ 60.5, 60.8, 60.9, 60.10, 60.11, 60.12, 60.13, 60.14, 60.15, or 60.16 as applicable to the original action which was reported.
(c) The subject will be sent a copy of all reports, including revisions and corrections to the report.
(d) Upon receipt of a report, the subject:
(1) Can accept the report as written;
(2) May provide a statement to the NPDB that will be permanently appended to the report, either directly or through a designated representative; (The NPDB will distribute the statement to queriers, where identifiable, and to the reporting entity and the subject of the report. Only the subject can, upon request, make changes to the statement. The NPDB will not edit the statement; however the NPDB reserves the right to redact personal indentifying and offensive language that does not change the factual nature of the statement.) or
(3) May follow the dispute process in accordance with § 60.21.
(a) Who must report. Each entity, including an insurance company, which makes a payment under an insurance policy, self-insurance, or otherwise, for the benefit of a physician, dentist, or other health care practitioner in settlement of or in satisfaction in whole or in part of a claim or a judgment against such physician, dentist, or other health care practitioner for medical malpractice, must report information as set forth in paragraph (b) of this section to the NPDB and to the appropriate State licensing board(s) in the State in which the act or omission upon which the medical malpractice claim was based. For purposes of this section, the waiver of an outstanding debt is not construed as a “payment” and is not required to be reported.
(b) What information must be reported. Entities described in paragraph (a) of this section must report the following information:
(1) With respect to the physician, dentist, or other health care practitioner for whose benefit the payment is made:
(i) Name,
(ii) Work address,
(iii) Home address, if known,
(iv) Social Security Number, if known, and if obtained in accordance with section 7 of the Privacy Act of 1974 (5 U.S.C. 552a note),
(v) Date of birth,
(vi) Name of each professional school attended and year of graduation,
(vii) For each professional license: the license number, the field of licensure, and the name of the State or Territory in which the license is held,
(viii) Drug Enforcement Administration registration number, if known,
(ix) Name of each hospital with which he or she is affiliated, if known;
(2) With respect to the reporting entity:
(i) Name and address of the entity making the payment,
(ii) Name, title, and telephone number of the responsible official submitting the report on behalf of the entity, and
(iii) Relationship of the reporting entity to the physician, dentist, or other health care practitioner for whose benefit the payment is made;
(3) With respect to the judgment or settlement resulting in the payment:
(i) Where an action or claim has been filed with an adjudicative body, identification of the adjudicative body and the case number,
(ii) Date or dates on which the act(s) or omission(s) which gave rise to the action or claim occurred,
(iii) Date of judgment or settlement,
(iv) Amount paid, date of payment, and whether payment is for a judgment or a settlement,
(v) Description and amount of judgment or settlement and any conditions attached thereto, including terms of payment,
(vi) A description of the acts or omissions and injuries or illnesses upon which the action or claim was based,
(vii) Classification of the acts or omissions in accordance with a reporting code adopted by the Secretary, and
(viii) Other information as required by the Secretary from time to time after publication in the
(c) Sanctions. Any entity that fails to report information on a payment required to be reported under this section is subject to a civil money penalty not to exceed the amount specified at 42 CFR 1003.103(c).
(d) Interpretation of information. A payment in settlement of a medical malpractice action or claim shall not be construed as creating a presumption that medical malpractice has occurred.
(a) What actions must be reported. Each Board of Medical Examiners must report to the NPDB any action based on reasons relating to a physician's or dentist's professional competence or professional conduct:
(1) Which revokes or suspends (or otherwise restricts) a physician's or dentist's license,
(2) Which censures, reprimands, or places on probation a physician or dentist, or
(3) Under which a physician's or dentist's license is surrendered.
(b) Information that must be reported. The Board must report the following information for each action:
(1) The physician's or dentist's name,
(2) The physician's or dentist's work address,
(3) The physician's or dentist's home address, if known,
(4) The physician's or dentist's Social Security number or Individual Tax Identification Number (ITIN), if known, and if obtained in accordance with section 7 of the Privacy Act of 1974 (5 U.S.C. 552a note),
(5) The physician's or dentist's date of birth,
(6) Name of each professional school attended by the physician or dentist and year of graduation,
(7) For each professional license, the physician's or dentist's license number, the field of licensure and the name of the State or Territory in which the license is held,
(8) The physician's or dentist's Drug Enforcement Administration registration number, if known,
(9) A description of the acts or omissions or other reasons for the action taken,
(10) A description of the Board action, the date the action was taken, its effective date and duration,
(11) Classification of the action in accordance with a reporting code adopted by the Secretary, and
(12) Other information as required by the Secretary from time to time after publication in the
(c) Sanctions. If, after notice of noncompliance and providing opportunity to correct noncompliance, the Secretary determines that a Board has failed to submit a report as required by this section, the Secretary will designate another qualified entity for the reporting of information under § 60.12.
(a) What actions must be reported. Each State is required to adopt a system of reporting to the NPDB actions, as listed below, which are taken against a health care practitioner, physician, dentist, health care entity, provider, or supplier (all as defined in § 60.3). The actions taken must be as a result of formal proceedings (as defined in § 60.3). The actions which must be reported are:
(1) Any adverse action taken by the licensing or certification authority of the State as a result of a formal proceeding, including revocation or suspension of a license, or certification agreement or contract for participation in a State health care program (and the length of any such suspension), reprimand, censure, or probation;
(2) Any dismissal or closure of the formal proceeding by reason of the health care practitioner, physician, dentist, health care entity, provider, or supplier surrendering the license or certification agreement or contract for participation in a State health care program, or leaving the State or jurisdiction;
(3) Any other loss of license or loss of the certification agreement or contract for participation in a State health care program, or the right to apply for, or renew, a license or certification agreement or contract of the health care practitioner, physician, dentist, health care entity, provider or supplier, whether by operation of law, voluntary surrender, nonrenewal (excluding nonrenewals due to nonpayment of fees, retirement, or change to inactive status), or otherwise.
(4) Any negative action or finding by such authority, organization, or entity regarding the health care practitioner, physician, dentist, health care entity, provider, or supplier.
(b) What information must be reported. Each State must report the following information (not otherwise reported under § 60.8):
(1) If the subject is an individual, personal identifiers, including:
(i) Name;
(ii) Social Security Number or ITIN, if known, and if obtained in accordance with section 7 of the Privacy Act of 1974 (5 U.S.C. 552a note);
(iii) Home address or address of record;
(iv) Sex; and
(v) Date of birth.
(2) If the subject is an individual, employment or professional identifiers, including:
(i) Organization name and type;
(ii) Occupation and specialty, if applicable;
(iii) National Provider Identifier (NPI);
(iv) Name of each professional school attended and year of graduation; and
(v) With respect to the professional license (including professional certification and registration) on which the reported action was taken, the license number, the field of licensure, and the name of the State or Territory in which the license is held.
(3) If the subject is an organization, identifiers, including:
(i) Name;
(ii) Business address;
(iii) Federal Employer Identification Number (FEIN), or Social Security Number when used by the subject as a Taxpayer Identification Number (TIN);
(iv) The NPI;
(v) Type of organization; and
(vi) With respect to the license (including certification and registration) on which the reported action was taken, the license and the name of the State or Territory in which the license is held.
(4) For all subjects:
(i) A narrative description of the acts or omissions and injuries upon which the reported action was based;
(ii) Classification of the acts or omissions in accordance with a reporting code adopted by the Secretary;
(iii) Classification of the action taken in accordance with a reporting code adopted by the Secretary, and the amount of any monetary penalty resulting from the reported action;
(iv) The date the action was taken, its effective date and duration;
(v) Name of the agency taking the action;
(vi) Name and address of the reporting entity; and
(vii) The name, title and telephone number of the responsible official submitting the report on behalf of the reporting entity.
(c) What information may be reported, if known. Reporting entities described in paragraph (a) of this section may voluntarily report, if known, the following information:
(1) If the subject is an individual, personal identifiers, including:
(i) Other name(s) used;
(ii) Other address;
(iii) FEIN, when used by the individual as a TIN; and
(iv) If deceased, date of death.
(2) If the subject is an individual, employment or professional identifiers, including:
(i) Other State professional license number(s), field(s) of licensure, and the name(s) of the State or Territory in which the license is held;
(ii) Other numbers assigned by Federal or State agencies, including, but not limited to Drug Enforcement Administration (DEA) registration number(s), Unique Physician Identification Number(s) (UPIN), and Medicaid and Medicare provider number(s);
(iii) Name(s) and address(es) of any health care entity with which the subject is affiliated or associated; and
(iv) Nature of the subject's relationship to each associated or affiliated health care entity.
(3) If the subject is an organization, identifiers, including:
(i) Other name(s) used;
(ii) Other address(es) used;
(iii) Other FEIN(s) or Social Security Number(s) used;
(iv) Other NPI(s) used;
(v) Other State license number(s) and the name(s) of the State or Territory in which the license is held;
(vi) Other numbers assigned by Federal or State agencies, including, but not limited to Drug Enforcement Administration (DEA) registration
(vii) Names and titles of principal officers and owners;
(viii) Name(s) and address(es) of any health care entity with which the subject is affiliated or associated; and
(ix) Nature of the subject's relationship to each associated or affiliated health care entity.
(4) For all subjects:
(i) Whether the subject will be automatically reinstated.
(ii) The date of appeal, if any.
(d) Access to documents. Each State must provide the Secretary (or an entity designated by the Secretary) with access to the documents underlying the actions described in paragraphs (a)(1) through (4) of this section, as may be necessary for the Secretary to determine the facts and circumstances concerning the actions and determinations for the purpose of carrying out section 1921.
(e) Sanctions for failure to report. The Secretary will provide for a publication of a public report that identifies failures to report information on adverse actions as required to be reported under this section.
(a) What actions must be reported. Federal licensing and certification agencies must report to the NPDB the following final adverse actions that are taken against a health care practitioner, physician, dentist, provider, or supplier (regardless of whether the final adverse action is the subject of a pending appeal):
(1) Formal or official actions, such as revocation or suspension of a license or certification agreement or contract for participation in Federal health care programs (and the length of any such suspension), reprimand, censure or probation,
(2) Any dismissal or closure of the proceedings by reason of the health care practitioner, physician, dentist, provider, or supplier surrendering their license or certification agreement or contract for participation in Federal health care programs, or leaving the State or jurisdiction,
(3) Any other loss of the license or loss of the certification agreement or contract for participation in Federal health care programs, or the right to apply for, or renew, a license or certification agreement or contract of the health care practitioner, physician, dentist, provider, or supplier, whether by operation of law, voluntary surrender, nonrenewal (excluding nonrenewals due to nonpayment of fees, retirement, or change to inactive status), or otherwise, and
(4) Any other negative action or finding by such Federal agency that is publicly available information.
(b) What information must be reported. Each Federal agency described in paragraph (a) must report the following information:
(1) If the subject is an individual, personal identifiers, including:
(i) Name;
(ii) Social Security Number or ITIN;
(iii) Home address or address of record;
(iv) Sex; and
(v) Date of birth.
(2) If the subject is an individual, employment or professional identifiers, including:
(i) Organization name and type;
(ii) Occupation and specialty, if applicable;
(iii) National Provider Identifier (NPI);
(iv) Name of each professional school attended and year of graduation; and
(v) With respect to the State professional license (including professional certification and registration) on which the reported action was taken, the license number, the field of licensure, and the name of the State or Territory in which the license is held.
(3) If the subject is an organization, identifiers, including:
(i) Name;
(ii) Business address;
(iii) Federal Employer Identification Number (FEIN), or Social Security Number (or ITIN) when used by the subject as a Taxpayer Identification Number (TIN);
(iv) The NPI;
(v) Type of organization; and
(vi) With respect to the State license (including certification and registration) on which the reported action was taken, the license and the name of the State or Territory in which the license is held.
(4) For all subjects:
(i) A narrative description of the acts or omissions and injuries upon which the reported action was based;
(ii) Classification of the acts or omissions in accordance with a reporting code adopted by the Secretary;
(iii) Classification of the action taken in accordance with a reporting code adopted by the Secretary, and the amount of any monetary penalty resulting from the reported action;
(iv) The date the action was taken, its effective date and duration;
(v) Name of the agency taking the action;
(vi) Name and address of the reporting entity; and
(vii) The name, title, and telephone number of the responsible official submitting the report on behalf of the reporting entity.
(c) What information may be reported, if known. Reporting entities described in paragraph (a) of this section may voluntarily report, if known, the following information:
(1) If the subject is an individual, personal identifiers, including:
(i) Other name(s) used;
(ii) Other address;
(iii) FEIN, when used by the individual as a TIN; and
(iv) If deceased, date of death.
(2) If the subject is an individual, employment or professional identifiers, including:
(i) Other State professional license number(s), field(s) of licensure, and the name(s) of the State or Territory in which the license is held;
(ii) Other numbers assigned by Federal or State agencies, including, but not limited to Drug Enforcement Administration (DEA) registration number(s), Unique Physician Identification Number(s) (UPIN), and Medicaid and Medicare provider number(s);
(iii) Name(s) and address(es) of any health care entity with which the subject is affiliated or associated; and
(iv) Nature of the subject's relationship to each associated or affiliated health care entity.
(3) If the subject is an organization, identifiers, including:
(i) Other name(s) used;
(ii) Other address(es) used;
(iii) Other FEIN(s) or Social Security Number(s) used;
(iv) Other NPI(s) used;
(v) Other State license number(s) and the name(s) of the State or Territory in which the license is held;
(vi) Other numbers assigned by Federal or State agencies, including, but not limited to Drug Enforcement Administration (DEA) registration number(s), Clinical Laboratory Improvement Act (CLIA) number(s), Food and Drug Administration (FDA) number(s), and Medicaid and Medicare provider number(s);
(vii) Names and titles of principal officers and owners;
(viii) Name(s) and address(es) of any health care entity with which the subject is affiliated or associated; and
(ix) Nature of the subject's relationship to each associated or affiliated health care entity.
(4) For all subjects:
(i) Whether the subject will be automatically reinstated.
(ii) The date of appeal, if any.
(d) Sanctions for failure to report. The Secretary will provide for a publication
(a) What actions must be reported. Peer review organizations and private accreditation entities are required to report any negative actions or findings (as defined in § 60.3) which are taken against a health care practitioner, physician, dentist, health care entity, provider, or supplier to the NPDB and provide a copy to the appropriate State licensing or certification agency. The health care practitioner, physician, dentist, health care entity, provider, or supplier must be licensed or otherwise authorized by the State to provide health care services. The actions taken must be as a result of formal proceedings (as defined in § 60.3).
(b) What information must be reported. Each peer review organization and private accreditation entity must report the information as required in § 60.9(b).
(c) What information may be reported, if known: Each peer review organization and private accreditation entity should report, if known, the information as described in § 60.9(c).
(d) Access to documents. Each peer review organization and private accreditation entity must provide the Secretary (or an entity designated by the Secretary) with access to the documents underlying the actions described in this section as may be necessary for the Secretary to determine the facts and circumstances concerning the actions and determinations for the purpose of carrying out section 1921.
(a) Reporting by health care entities to the NPDB.
(1) Actions that must be reported and to whom the report must be made. Each health care entity must report to the NPDB and provide a copy of the report to the Board of Medical Examiners in the State in which the health care entity is located the following actions:
(i) Any professional review action that adversely affects the clinical privileges of a physician or dentist for a period longer than 30 days;
(ii) Acceptance of the surrender of clinical privileges or any restriction of such privileges by a physician or dentist:
(A) While the physician or dentist is under investigation by the health care entity relating to possible incompetence or improper professional conduct, or
(B) In return for not conducting such an investigation or proceeding; or
(iii) In the case of a health care entity which is a professional society, when it takes a professional review action concerning a physician or dentist.
(2) Voluntary reporting on other health care practitioners. A health care entity may report to the NPDB information as described in paragraph (a)(3) of this section concerning actions described in paragraph (a)(1) in this section with respect to other health care practitioners.
(3) What information must be reported. The health care entity must report the following information concerning actions described in paragraph (a)(1) of this section with respect to a physician or dentist:
(i) Name,
(ii) Work address,
(iii) Home address, if known,
(iv) Social Security Number, if known, and if obtained in accordance with section 7 of the Privacy Act of 1974,
(v) Date of birth,
(vi) Name of each professional school attended and year of graduation,
(vii) For each professional license: the license number, the field of licensure, and the name of the State or Territory in which the license is held,
(viii) Drug Enforcement Administration registration number, if known,
(ix) A description of the acts or omissions or other reasons for privilege loss, or, if known, for surrender,
(x) Action taken, date the action was taken, and effective date of the action, and
(xi) Other information as required by the Secretary from time to time after publication in the
(b) Reporting by the Board of Medical Examiners to the NPDB. Each Board must report any known instances of a health care entity's failure to report information as required under paragraph (a)(1) of this section. In addition, each Board of Medical Examiners must simultaneously report this information to the appropriate State licensing board in the State in which the health care entity is located, if the Board of Medical Examiners is not such licensing board.
(c) Sanctions.
(1) Health care entities. If the Secretary has reason to believe that a health care entity has substantially failed to report information in accordance with this section, the Secretary will conduct an investigation. If the investigation shows that the health care entity has not complied with this section, the Secretary will provide the entity with a written notice describing the noncompliance, giving the health care entity an opportunity to correct the noncompliance, and stating that the entity may request, within 30 days after receipt of such notice, a hearing with respect to the noncompliance. The request for a hearing must contain a statement of the material factual issues in dispute to demonstrate that there is cause for a hearing. These issues must be both substantive and relevant. The hearing will be held in the Washington, DC, metropolitan area. The Secretary will deny a hearing if:
(i) The request for a hearing is untimely,
(ii) The health care entity does not provide a statement of material factual issues in dispute, or
(iii) The statement of factual issues in dispute is frivolous or inconsequential. In the event that the Secretary denies a hearing, the Secretary will send a written denial to the health care entity setting forth the reasons for denial. If a hearing is denied, or if as a result of the hearing the entity is found to be in noncompliance, the Secretary will publish the name of the health care entity in the
(2) Board of Medical Examiners. If, after notice of noncompliance and providing opportunity to correct noncompliance, the Secretary determines that a Board of Medical Examiners has failed to report information in accordance with paragraph (b) of this section, the Secretary will designate another qualified entity for the reporting of this information.
(a) Who must report. Federal and State prosecutors must report criminal convictions against health care practitioners, physicians, dentists, providers, and suppliers related to the delivery of a health care item or service (regardless of whether the conviction is the subject of a pending appeal).
(b) Entities described in paragraph (a) of this section must report the following information:
(1) If the subject is an individual, personal identifiers, including:
(i) Name;
(ii) Social Security Number (or ITIN) (States must report this information, if known, and if obtained in accordance with section 7 of the Privacy Act of 1974);
(iii) Home address or address of record;
(iv) Sex; and
(v) Date of birth.
(2) If the subject is an individual, that individual's employment or professional identifiers, including:
(i) Organization name and type;
(ii) Occupation and specialty, if applicable; and
(iii) National Provider Identifier (NPI).
(3) If the subject is an organization, identifiers, including:
(i) Name;
(ii) Business address;
(iii) Federal Employer Number (FEIN), or Social Security Number (or ITIN) when used by the subject as a Taxpayer Identification Number (TIN);
(iv) The NPI; and
(v) Type of organization.
(4) For all subjects:
(i) A narrative description of the acts or omissions and injuries upon which the reported action was based;
(ii) Classification of the acts or omissions in accordance with a reporting code adopted by the Secretary;
(iii) Name and location of court or judicial venue in which the action was taken;
(iv) Docket or court file number;
(v) Type of action taken;
(vi) Statutory offense(s) and count(s);
(vii) Name of primary prosecuting agency (or the plaintiff in civil actions);
(viii) Date of sentence or judgment;
(ix) Length of incarceration, detention, probation, community service, or suspended sentence;
(x) Amounts of any monetary judgment, penalty, fine, assessment, or restitution;
(xi) Other sentence, judgment, or orders;
(xii) If the action is on appeal;
(xiii) Name and address of the reporting entity; and
(xiv) The name, title, and telephone number of the responsible official submitting the report on behalf of the reporting entity.
(c) Entities described in paragraph (a) of this section and each State should report, if known, the following information:
(1) If the subject is an individual, personal identifiers, including:
(i) Other name(s) used;
(ii) Other address; and
(iii) FEIN, when used by the individual as a TIN.
(2) If the subject is an individual, that individual's employment or professional identifiers, including:
(i) State professional license (including professional certification and registration) number(s), field(s) of licensure, and the name(s) of the State or Territory in which the license is held;
(ii) Other numbers assigned by Federal or State agencies, to include, but not limited to Drug Enforcement Administration (DEA) registration number(s), Unique Physician Identification Number(s) (UPIN), and Medicaid and Medicare provider number(s);
(iii) Name(s) and address(es) of any health care entity with which the subject is affiliated or associated; and
(iv) Nature of the subject's relationship to each associated or affiliated health care entity.
(3) If the subject is an organization, identifiers, including:
(i) Other name(s) used;
(ii) Other address(es) used;
(iii) Other FEIN(s) or Social Security Numbers(s) (or ITINs) used;
(iv) Other NPI(s) used;
(v) State license (including certification and registration) number(s) and the name(s) of the State or Territory in which the license is held;
(vi) Other numbers assigned by Federal or State agencies, to include, but not limited to Drug Enforcement Administration (DEA) registration number(s), Clinical Laboratory Improvement Act (CLIA) number(s), Food and Drug Administration (FDA) number(s), and Medicaid and Medicare provider number(s);
(vii) Names and titles of principal officers and owners;
(viii) Name(s) and address(es) of any health care entity with which the subject is affiliated or associated; and
(ix) Nature of the subject's relationship to each associated or affiliated health care entity.
(4) For all subjects:
(i) Prosecuting agency's case number;
(ii) Investigative agencies involved;
(iii) Investigative agencies case or file number(s); and
(iv) The date of appeal, if any.
(d) Access to documents. Each State must provide the Secretary (or an entity designated by the Secretary) with access to the documents underlying the actions described in paragraphs (a)(1) through (4) of this section, as may be necessary for the Secretary to determine the facts and circumstances concerning the actions and determinations for the purpose of carrying out section 1921.
(e) Sanctions for failure to report. The Secretary will provide for publication of a public report that identifies those agencies that have failed to report information on criminal convictions as required to be reported under this section.
(a) Who must report. Federal and State attorneys and health plans must report civil judgments against health care practitioners, physicians, dentists, providers, or suppliers related to the delivery of a health care item or service (regardless of whether the civil judgment is the subject of a pending appeal). If a Government agency is party to a multi-claimant civil judgment, it must assume the responsibility for reporting the entire action, including all amounts awarded to all the claimants, both public and private. If there is no Government agency as a party, but there are multiple health plans as claimants, the health plan which receives the largest award must be responsible for reporting the total action for all parties.
(b) What information must be reported. Entities described in paragraph (a) of this section must report the information as required in § 60.13(b).
(c) What information may be reported, if known. Entities described in paragraph (a) of this section should report, if known the information as described in § 60.13(c).
(d) Access to documents. Each State must provide the Secretary (or an entity designated by the Secretary) with access to the documents underlying the actions described in paragraphs (a)(1) through (4) of this section, as may be necessary for the Secretary to determine the facts and circumstances concerning the actions and determinations for the purpose of carrying out section 1921.
(e) Sanctions for failure to report. Any health plan that fails to report information on a civil judgment required to be reported under this section will be subject to a civil money penalty (CMP) of not more than $25,000 for each such adverse action not reported. Such penalty will be imposed and collected in the same manner as CMPs under subsection (a) of section 1128A of the Social Security Act. The Secretary will provide for publication of a public report that identifies those Government agencies that have failed to report information on civil judgments as required to be reported under this section.
(a) Who must report. Federal Government agencies and State law and fraud enforcement agencies must report health care practitioners, physicians, dentists, providers, or suppliers excluded from participating in Federal or State health care programs, including exclusions that were made in a matter in which there was also a settlement that is not reported because no findings or admissions of liability have been made (regardless of whether the exclusion is the subject of a pending appeal).
(b) What information must be reported. Entities described in paragraph (a) of this section must report the following information:
(1) If the subject is an individual, personal identifiers, including:
(i) Name;
(ii) Social Security Number (or ITIN) (State law and fraud enforcement agencies must report this information if known, and if obtained in accordance with section 7 of the Privacy Act of 1974);
(iii) Home address or address of record;
(iv) Sex; and
(v) Date of birth.
(2) If the subject is an individual, that individual's employment or professional identifiers, including:
(i) Organization name and type;
(ii) Occupation and specialty, if applicable; and
(iii) National Provider Identifier (NPI).
(3) If the subject is an organization, identifiers, including:
(i) Name;
(ii) Business address;
(iii) Federal Employer Identification Number (FEIN) or Social Security Number (or ITIN) when used by the subject as a Taxpayer Identification Number (TIN);
(iv) The NPI; and
(v) Type of organization.
(4) For all subjects:
(i) A narrative description of the acts or omissions and injuries upon which the reported action was based;
(ii) Classification of the acts or omissions in accordance with a reporting code adopted by the Secretary;
(iii) Classification of the action taken in accordance with a reporting code adopted by the Secretary, and the amount of any monetary penalty resulting from the reported action;
(iv) The date the action was taken, its effective date and duration;
(v) If the action is on appeal;
(vi) Name of the agency taking the action;
(vii) Name and address of the reporting entity; and
(viii) The name, title, and telephone number of the responsible official submitting the report on behalf of the reporting entity.
(c) Entities described in paragraph (a) of this section should report, if known, the following information:
(1) If the subject is an individual, personal identifiers, including:
(i) Other name(s) used;
(ii) Other address;
(iii) FEIN, when used by the individual as a TIN;
(iv) Name of each professional school attended and year of graduation; and
(v) If deceased, date of death.
(2) If the subject is an individual, that individual's employment or professional identifiers, including:
(i) State professional license (including professional registration and certification) number(s), field(s) of licensure, and the name(s) of the State or Territory in which the license is held;
(ii) Other numbers assigned by Federal or State agencies, to include, but not limited to Drug Enforcement Administration (DEA) registration number(s), Unique Physician Identification Number(s) (UPIN), and Medicaid and Medicare provider number(s);
(iii) Name(s) and address(es) of any health care entity with which the subject is affiliated or associated; and
(iv) Nature of the subject's relationship to each associated or affiliated health care entity.
(3) If the subject is an organization, identifiers, including:
(i) Other name(s) used;
(ii) Other address(es) used;
(iii) Other FEIN(s) or Social Security Numbers(s) (or ITINs) used;
(iv) Other NPI(s) used;
(v) State license (including registration and certification) number(s) and the name(s) of the State or territory in which the license is held;
(vi) Other numbers assigned by Federal or State agencies, to include, but not limited to Drug Enforcement Administration (DEA) registration number(s), Clinical Laboratory Improvement Act (CLIA) number(s), Food and Drug Administration (FDA) number(s), and Medicaid and Medicare provider number(s);
(vii) Names and titles of principal officers and owners;
(viii) Name(s) and address(es) of any health care entity with which the subject is affiliated or associated; and
(ix) Nature of the subject's relationship to each associated or affiliated health care entity.
(4) For all subjects:
(i) If the subject will be automatically reinstated; and
(ii) The date of appeal, if any.
(d) Access to documents. Each State must provide the Secretary (or an entity designated by the Secretary) with access to the documents underlying the actions described in paragraphs (a) (1) through (4) of this section, as may be necessary for the Secretary to determine the facts and circumstances concerning the actions and determinations for the purpose of carrying out section 1921.
(e) Sanctions for failure to report. The Secretary will provide for publication of a public report that identifies those Government agencies that have failed to report information on exclusions or debarments as required to be reported under this section.
(a) Who must report. Federal Government agencies, State law or fraud enforcement agencies, and health plans must report other adjudicated actions or decisions as defined in § 60.3 related to the delivery, payment or provision of a health care item or service against health care practitioners, physicians, dentists, providers, and suppliers (regardless of whether the other adjudicated action or decision is subject to a pending appeal).
(b) Entities described in paragraph (a) of this section must report the information as required in § 60.15(b).
(c) Entities described in paragraph (a) of this section should report, if known, the information as described in § 60.15(c).
(d) Access to documents. Each State must provide the Secretary (or an entity designated by the Secretary) with access to the documents underlying the actions described in paragraphs (a) (1) through (4) of this section, as may be necessary for the Secretary to determine the facts and circumstances concerning the actions and determinations for the purpose of carrying out section 1921.
(e) Sanctions for failure to report. Any health plan that fails to report information on another adjudicated action or decision required to be reported under this section will be subject to a civil money penalty (CMP) of not more than $25,000 for each such action not reported. Such penalty will be imposed and collected in the same manner as CMPs under subsection (a) of section 1128A of the Social Security Act. The Secretary will provide for publication of a public report that identifies those Government agencies that have failed to report information on other adjudicated actions as required to be reported under this section.
(a) When information must be requested. Each hospital, either directly or through an authorized agent, must request information from the NPDB concerning a physician, dentist, or other health care practitioner, as follows:
(1) At the time a physician, dentist, or other health care practitioner, applies for a position on its medical staff (courtesy or otherwise), or for clinical privileges at the hospital; and
(2) Every two years concerning any physician, dentist, or other health care practitioner, who is on its medical staff (courtesy or otherwise) or has clinical privileges at the hospital.
(b) Failure to request information. Any hospital which does not request the information as required in paragraph (a) of this section is presumed to have knowledge of any information reported to the NPDB concerning this physician, dentist, or other health care practitioner.
(c) Reliance on the obtained information. Each hospital may rely upon the information provided by the NPDB to the hospital. A hospital shall not be held liable for this reliance unless the hospital has knowledge that the information provided was false.
(a) Who may request information and what information may be available. Information in the NPDB will be available, upon request, to the persons or entities, or their authorized agents, as described below:
(1) Information reported under §§ 60.7, 60.8, and 60.12 is available to:
(i) A hospital that requests information concerning a physician, dentist, or other health care practitioner who is on its medical staff (courtesy or otherwise) or has clinical privileges at the hospital;
(ii) A physician, dentist, or other health care practitioner who requests information concerning himself or herself;
(iii) A State Medical Board of Examiners or other State authority that licenses physicians, dentists, or other health care practitioners;
(iv) A health care entity which has entered or may be entering into an employment or affiliation relationship with a physician, dentist, or other health care practitioner, or to which the physician, dentist, or other health care practitioner has applied for clinical privileges or appointment to the medical staff;
(v) An attorney, or individual representing himself or herself, who has filed a medical malpractice action or claim in a State or Federal court or other adjudicative body against a hospital, and who requests information regarding a specific physician, dentist, or other health care practitioner who is also named in the action or claim. This information will be disclosed only upon the submission of evidence that the hospital failed to request information from the NPDB, as required by § 60.17(a), and may be used solely with respect to litigation resulting from the action or claim against the hospital;
(vi) A health care entity with respect to professional review activity; and
(vii) A person or entity requesting statistical information, in a form which does not permit the identification of any individual or entity.
(2) Information reported under §§ 60.9, 60.10, 60.11, 60.13, 60.14, 60.15, and 60.16 is available to the agencies, authorities, and officials listed below that request information on licensure or certification actions, any other negative actions or findings, or final adverse actions concerning an individual practitioner, physician, dentist, health care entity, provider, or supplier. These agencies, authorities, and officials may obtain data for the purposes of determining the fitness of individuals to provide health care services, protecting the health and safety of individuals receiving health care through programs administered by the requesting agency, and protecting the fiscal integrity of these programs.
(i) Agencies administering (including those providing payment for services) Federal health care programs, including private entities administering such programs under contract;
(ii) State licensing or certification agencies and Federal agencies responsible for the licensing and certification of health care practitioners, physicians, dentists, providers, or suppliers;
(iii) State agencies administering or supervising the administration of State health care programs (as defined in 42 U.S.C. 1128(h));
(iv) State law or fraud enforcement agencies;
(v) Law enforcement officials and agencies such as:
(A) United States Attorney General;
(B) United States Chief Postal Inspector;
(C) United States Inspectors General;
(D) United States Attorneys;
(E) United States Comptroller General;
(F) United States Drug Enforcement Administration;
(G) United States Nuclear Regulatory Commission; or
(H) Federal Bureau of Investigation;
(vi) Utilization and quality control peer review organizations described in part B of title XI and to appropriate entities with contracts under section 1154(a)(4)(C) of the Social Security Act with respect to eligible organizations reviewed under the contracts, but only with respect to information provided pursuant to §§ 60.9 and 60.11, as well as information provided pursuant to §§ 60.13, 60.14, 60.15, and 60.16 by Federal agencies and health plans;
(vii) Hospitals and other health care entities (as defined in section 431 of the Health Care Quality Improvement Act of 1986), with respect to physicians or other licensed health care practitioners who have entered (or may be entering) into employment or affiliation relationships with, or have applied for clinical privileges or appointments to the medical staff of such hospitals or other health care entities, but only with respect to information provided pursuant to §§ 60.9 and 60.11, as well as information provided pursuant to §§ 60.13, 60.14, 60.15, and 60.16 by Federal agencies and health plans;
(viii) health plans;
and
(ix) A health care practitioner, physician, dentist, health care entity, provider, or supplier who requests information concerning himself, herself, or itself; and
(x) A person or entity requesting statistical information, in a form which does not permit the identification of any individual or entity. (For example, researchers may use statistical information to identify the total number of nurses with adverse licensure actions in a specific State. Similarly, researchers may use statistical information to identify the total number of health care entities denied accreditation.)
(b) Procedures for obtaining National Practitioner Data Bank information. Persons and entities may obtain information from the NPDB by submitting a request in such form and manner as the Secretary may prescribe. These requests are subject to fees as described in § 60.19.
(a) Policy on Fees. The fees described in this section apply to all requests for information from the NPDB. The amount of such fees will be sufficient to recover the full costs of operating the NPDB. The actual fees will be announced by the Secretary in periodic notices in the
(b) Criteria for determining the fee. The amount of each fee will be determined based on the following criteria:
(1) Direct and indirect personnel costs, including salaries and fringe benefits such as medical insurance and retirement;
(2) Physical overhead, consulting, and other indirect costs (including materials and supplies, utilities, insurance, travel, and rent and depreciation on land, buildings, and equipment);
(3) Agency management and supervisory costs;
(4) Costs of enforcement, research, and establishment of regulations and guidance;
(5) Use of electronic data processing equipment to collect and maintain information—the actual cost of the service, including computer search time, runs and printouts; and
(6) Any other direct or indirect costs related to the provision of services.
(c) Assessing and collecting fees. The Secretary will announce through notice in the
(a) Limitations on disclosure. Information reported to the NPDB is considered confidential and shall not be disclosed outside the Department of Health and Human Services, except as specified in §§ 60.17, 60.18, and 60.21. Persons and entities receiving information from the NPDB, either directly or from another party, must use it solely with respect to the purpose for which it was provided. Nothing in this section will prevent the disclosure of information by a party from its own files used to create such reports where disclosure is otherwise authorized under applicable State or Federal law.
(b) Penalty for violations. Any person who violates paragraph (a) shall be subject to a civil money penalty of up to $11,000 for each violation. This penalty will be imposed pursuant to procedures at 42 CFR part 1003.
(a) Who may dispute the NPDB information. The NPDB will routinely mail or transmit electronically to the subject a copy of the report filed in the NPDB. In addition, as indicated in § 60.18(a)(2)(ix), the subject may also request a copy of such report. The subject of the report or a designated representative may dispute the accuracy of a report concerning himself, herself, or itself as set forth in paragraph (b) of this section.
(b) Procedures for disputing a report with the reporting entity.
(1) If the subject disagrees with the reported information, the subject must request in writing that the NPDB enter the report into “disputed status.”
(2) The NPDB will send the report, with a notation that the report has been placed in “disputed status,” to queriers (where identifiable), the reporting entity and the subject of the report.
(3) The subject must attempt to enter into discussion with the reporting entity to resolve the dispute. If the reporting entity revises the information originally submitted to the NPDB, the NPDB will notify the subject and all entities to whom reports have been sent that the original information has been revised. If the reporting entity does not revise the reported information, or does not respond to the subject within 60 days, the subject may request that the Secretary review the report for accuracy. The Secretary will decide whether to correct the report within 30 days of the request. This time frame may be extended for good cause. The subject also may provide a statement to the NPDB, either directly or through a designated representative, that will permanently append the report.
(c) Procedures for requesting a Secretarial review.
(1) The subject must request, in writing, that the Secretary review the report for accuracy. The subject must return this request to the NPDB along with appropriate materials that support the subject's position. The Secretary will only review the accuracy of the reported information, and will not consider the merits or appropriateness of the action or the due process that the subject received.
(2) After the review, if the Secretary:
(i) Concludes that the information is accurate and reportable to the NPDB, the Secretary will inform the subject and the NPDB of the determination. The Secretary will include a brief statement (Secretarial Statement) in the report that describes the basis for the decision. The report will be removed from “disputed status.” The NPDB will distribute the corrected report and statement(s) to previous queriers (where identifiable), the reporting entity and the subject of the report.
(ii) Concludes that the information contained in the report is inaccurate, the Secretary will inform the subject of the determination and direct the NPDB or the reporting entity to revise the report. The Secretary will include a brief statement (Secretarial Statement) in the report describing the findings. The NPDB will distribute the corrected report and statement(s) to previous queriers (where identifiable), the reporting entity and the subject of the report.
(iii) Determines that the disputed issues are outside the scope of the Department's review, the Secretary will inform the subject and the NPDB of the determination. The Secretary will include a brief statement (Secretarial Statement) in the report describing the findings. The report will be removed from “disputed status.” The NPDB will distribute the report and the statement(s) to previous queriers (where identifiable), the reporting entity and the subject of the report.
(iv) Determines that the adverse action was not reportable and therefore should be removed from the NPDB, the Secretary will inform the subject and direct the NPDB to void the report. The NPDB will distribute a notice to previous queriers (where identifiable), the reporting entity and the subject of the report that the report has been voided.
Individuals, entities or their authorized agents, and the NPDB shall not be held liable in any civil action filed by the subject of a report unless the individual, entity, or authorized agent submitting the report has actual knowledge of the falsity of the information contained in the report.
4. Under the authority of 42 U.S.C. 1320a–7e, remove part 61.