Agricultural Marketing Service
Foreign Agricultural Service
Forest Service
National Security Agency/Central Security Service
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
National Security Agency/Central Security Service
Pipeline and Hazardous Materials Safety Administration
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Health Resources and Services Administration
National Institutes of Health
Transportation Security Administration
U.S. Customs and Border Protection
Geological Survey
Land Management Bureau
National Park Service
Drug Enforcement Administration
Employment and Training Administration
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Pipeline and Hazardous Materials Safety Administration
Surface Transportation Board
Transportation Security Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Office of the Secretary, USDA.
Final rule.
This document sets forth the revised appendices to the Dairy Tariff-Rate Import Quota Licensing Regulation for the 2013 quota year reflecting the cumulative annual transfers from Appendix 1 to Appendix 2 for certain dairy product import licenses permanently surrendered by licensees or revoked by the Licensing Authority.
Abdelsalam El-Farra, Dairy Import Licensing Program, Import Policies and Export Reporting Division, U.S. Department of Agriculture, 1400 Independence Avenue SW., Stop 1021, Washington, DC 20250–1021; or by telephone at (202) 720–9439; or by email at:
The Foreign Agricultural Service, under a delegation of authority from the Secretary of Agriculture, administers the Dairy Tariff-Rate Import Quota Licensing Regulation codified at 7 CFR 6.20–6.37 that provides for the issuance of licenses to import certain dairy articles under tariff-rate quotas (TRQs) as set forth in the Harmonized Tariff Schedule of the United States. These dairy articles may only be entered into the United States at the low-tier tariff by or for the account of a person or firm to whom such licenses have been issued and only in accordance with the terms and conditions of the regulation.
Licenses are issued on a calendar year basis, and each license authorizes the license holder to import a specified quantity and type of dairy article from a specified country of origin. The Import Policies and Export Reporting Division, Foreign Agricultural Service, U.S. Department of Agriculture, issues these licenses and, in conjunction with U.S. Customs and Border Protection, U.S. Department of Homeland Security, monitors their use.
The regulation at 7 CFR 6.34(a) states: “Whenever a historical license (Appendix 1) is not issued to an applicant pursuant to the provisions of § 6.23, is permanently surrendered or is revoked by the Licensing Authority, the amount of such license will be transferred to Appendix 2.” Section 6.34(b) provides that the cumulative annual transfers will be published in the
Agricultural commodities, Cheese, Dairy products, Imports, Reporting and recordkeeping requirements.
Accordingly, 7 CFR part 6 is amended as follows:
Additional U.S. Notes 6, 7, 8, 12, 14, 16–23 and 25 to Chapter 4 and General Note 15 of the Harmonized Tariff Schedule of the United States (19 U.S.C. 1202), Pub. L. 97–258, 96 Stat. 1051, as amended (31 U.S.C. 9701), and secs. 103 and 404, Pub. L. 103–465, 108 Stat. 4819 (19 U.S.C. 3513 and 3601).
Agricultural Marketing Service, USDA.
Interim rule with request for comments.
This rule invites comments on changes to handler reporting and grower diversion requirements prescribed under the marketing order for tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin (order). The Cherry Industry Administrative Board (Board) locally administers the order. This rule changes the deadline for submitting the handler reserve plan from November 1 to October 1 and extends the deadline for redeeming or transferring grower diversion certificates from November 1 to June 30 of a given crop year. A crop year is the 12-month period beginning on July 1 of any crop year and ending on June 30 of the following year. These changes will provide the industry with a more complete and timely picture of the available supply earlier in the season and give handlers more time and flexibility in meeting their obligations under volume regulation.
Effective August 2, 2013; comments received by September 30, 2013 will be considered prior to issuance of a final rule.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250–0237; Fax: (202) 720–8938; or Internet:
Jennie M. Varela, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (863) 324–3375, Fax: (863) 325–8793, or Email:
Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250–0237; Telephone: (202) 720–2491, Fax: (202) 720–8938, or Email:
This rule is issued under Marketing Order and Agreement No. 930, as amended (7 CFR part 930), regulating the handling of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601–674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of the entry of the ruling.
This rule changes the deadline for submitting the handler reserve plan from November 1 to October 1 and extends the deadline for redeeming or transferring grower diversion certificates issued by the Board from November 1 to June 30 of a given crop year. These changes will provide the industry with a more complete and timely picture of the available supply earlier in the season and will provide handlers more time and flexibility in meeting their obligations under volume regulation. The Board unanimously approved these changes at its March 21, 2013, meeting.
Sections 930.58 and 930.59 of the order provide authority for grower and handler diversion, respectively. In particular, § 930.59(c) requires that handlers notify the Board of their intent to divert cherries. These sections also provide authority for the Board to establish rules and regulations to administer these provisions, with the approval of the Secretary.
Section 930.159 of the rules and regulations establishes requirements for handler diversion. This section currently states, in part, that handlers intending to divert cherries or cherry products under a volume regulation must notify the Board and submit their plan for complying with that season's restriction obligation by November 1.
Section 930.158 of the order's rules and regulations establishes requirements for using grower diversion certificates. This section currently provides that handlers redeem grower diversion certificates with the Board by November 1 of the crop year, as the certificates will not be valid after that date.
Section 930.58 of the order was recently amended to exempt cherries diverted in the orchard (grower diversion) from inclusion in a handler's total volume calculation. When a volume regulation is issued, handlers are obligated to keep a percentage of their total volume in reserve or account for the restricted volume with diversion certificates. These certificates can be earned through export sales, new market or new product sales, or through grower diversion. Before the amendment, the volume of cherries represented by a grower diversion certificate was added to the handler's total volume. Following the amendment, handlers can redeem grower diversion certificates without adding tonnage to their total volume.
Amendments to an order often require conforming changes or adjustments to the administrative rules and regulations. The Board created a committee to review the order's diversion and reporting regulations and present any recommended changes to the Board. This rule implements the two recommended changes: Changing the due date for the handler reserve plan to October 1, and allowing the transfer and redemption of grower diversion certificates through the end of the crop year, June 30.
Separating grower diversion certificates from a handler's total volume simplified the completion of the reserve plan. Consequently, the Board believes handlers will be able to complete their reserve plan for restricted tart cherries at an earlier date. As a result, the Board recommended that the deadline for submitting handler reserve plans be changed from November 1 to October 1 of each season. The reserve plan is submitted in combination with a handler's final pack report. The Board consolidates this data and uses it to issue reports on the final volume processed and available inventory. This date change will provide the industry a more complete and timely picture of the available supply earlier in the season. This information is important to the industry, especially when considering the release of additional reserves when a volume regulation is in effect.
Originally, the deadline to redeem grower diversion certificates was tied to the handler reserve plan as handlers needed to account for grower diversion when calculating their total volume. As such, current regulations establish a due date of November 1 for grower diversion certificates, while other diversion certificates can be transferred throughout the season. With the amendment to the order, grower diversion certificates no longer need to be linked to when the handler reserve plan is due. To bring consistency to the use of diversion certificates, the Board recommended allowing handlers to transfer and redeem grower diversion certificates through the end of the season, June 30. This change also provides handlers additional time and flexibility in meeting restriction obligations.
In addition to adjusting the deadline for submitting the handler reserve plan and extending the deadline for redeeming grower diversion certificates, this rule also makes a minor wording change to § 930.158 to facilitate the change in date.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
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. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 600 producers of tart cherries in the regulated area and approximately 40 handlers of tart cherries who are subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000 and small agricultural service firms have been defined as those having annual receipts of less than $7,000,000 (13 CFR 121.201).
According to data from the National Agricultural Statistics Service and the Board, the average annual grower price for tart cherries during the 2012–13 season was $0.54 per pound, and total shipments were around 85 million pounds. Therefore, average receipts for tart cherry producers were around $76,200, well below the SBA threshold for small producers. In 2013, The Food Institute estimated an f.o.b. price of $0.84 per pound for frozen tart cherries, which make up the majority of processed tart cherries. Using this data, average annual handler receipts were about $1.8 million, also below the SBA threshold for small agricultural service firms. Assuming a normal distribution, the majority of producers and handlers
This rule modifies § 930.159, changing the deadline for submitting the handler reserve plan from November 1 to October 1. This rule also modifies § 930.158 to extend the deadline for redeeming or transferring grower diversion certificates issued by the Board from November 1 to June 30 of a given crop year. These changes are authorized under §§ 930.59 and 930.58, respectively. These changes will provide the industry with a more complete and timely picture of the available supply earlier in the season. In addition, the new deadline for transferring grower diversion certificates will allow handlers more time and flexibility in meeting their obligations under volume regulation.
It is not anticipated that this rule will generate any additional costs for growers or handlers. This action is intended to adjust regulations to reflect recent amendments to the order and to allow the order to function more efficiently. These changes are expected to benefit the industry by providing a clear picture of available supply earlier in the season, and by allowing handlers more time to utilize grower diversion certificates to meet their restriction under volume regulation. These changes should impact all entities positively, regardless of size.
Regarding alternatives to this action, the Board considered not making any changes to the regulations regarding the handler reserve plan or grower diversion certificates. However, the Board unanimously supported an earlier date for the handler reserve plan as all handlers are aware of the restriction well in advance and it would provide timely information regarding the season. Additionally, the Board determined that changing the deadline for redeeming grower diversion certificates was in line with the industry's objective to have consistency among the application of diversion credits. As such, these alternatives were rejected.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581–0177, (Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin). No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.
This rule will require changes to Cherry Industry Administrative Board Form 4, “Handler Reserve Plan and Final Pack Report”. However, these changes are minor and the currently approved burden for the form remains the same. The revised form has been submitted to OMB for approval.
This rule will not impose any additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.
Further, the Board's meeting was widely publicized throughout the tart cherry industry and all interested persons were invited to attend the videoconference meeting at regional locations or call in to participate in the Board's deliberations. Like all Board meetings, the March 21, 2013, meeting was a public meeting and all entities, both large and small, were able to express their views on these issues. Finally, interested persons are invited to submit comments on this interim rule, including the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
This rule invites comments on changes to handler reporting and grower diversion requirements prescribed under the order. Any comments received will be considered prior to finalization of this rule.
After consideration of all relevant material presented, including the Board's recommendation, and other information, it is found that this interim rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Marketing agreements, Reporting and recordkeeping requirements, Tart cherries.
For the reasons set forth in the preamble, 7 CFR part 930 is amended as follows:
7 U.S.C. 601–674.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the Class D and Class E airspace operating hours, and establishes Class E surface airspace at Oceana Naval Air Station, (NAS), VA, due to the Air Traffic Control Tower at Oceana NAS (Apollo Soucek Field) now operating on a part time basis. This action enhances the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport. This action also updates the geographic coordinates of Oceana NAS (Apollo Soucek Field) and NALF Fentress.
Effective 0901 UTC, October 17, 2013. The Director of the
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305–6364.
On April 9, 2013, the FAA published in the
Class E airspace designations are published in paragraphs 5000, 6002, and 6004, respectively of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR Part 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends the hours of operation for Class D airspace and Class E airspace designated as an extension to Class D surface airspace at Oceana NAS (Apollo Soucek Field), VA, as the air traffic control tower is transitioning from a full time facility to part time, and requires a Notice to Airmen notification. This action also establishes Class E airspace extending upward from the surface at Oceana NAS (Apollo Soucek Field), VA. The geographic coordinates of Oceana NAS (Apollo Soucek Field) and NALF Fentress are adjusted to coincide with the FAAs aeronautical database.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends and establishes controlled airspace at Oceana NAS (Apollo Soucek Field), Oceana, VA.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from the surface to and including 2,500 feet MSL within a 4.3-mile radius of Oceana NAS (Apollo Soucek Field). This Class D airspace area is effective during specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from the surface within a 4.3-mile radius of Oceana NAS (Apollo Soucek Field), and within 1.8 miles each side of the Navy Oceana TACAN 213° radial extending from the 4.3-mile
That airspace extending upward from the surface within 1.8 miles each side of the Navy Oceana TACAN 213° radial extending from the 4.3-mile radius of Oceana NAS (Apollo Soucek Field) to 9.3 miles southwest of the TACAN and within a 2.7-mile radius of NALF Fentress. This Class E airspace area is effective during specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (“Commission”) is amending its rules to delegate to the Director of the Division of Enforcement the authority to appoint distribution fund administrators in enforcement administrative proceedings from a Commission-approved pool of administrators, and to set the amount of, or waive for good cause shown, the administrator's bond required by Rule 1105(c) of the Commission's rules on Fair Fund and Disgorgement Plans.
Nancy Chase Burton, 202–551–4425, Office of Distributions, Division of Enforcement, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–6553.
In administrative proceedings instituted by the Commission to enforce the federal securities laws, the Commission, in the exercise of its discretion, seeks to distribute amounts collected as disgorgement, prejudgment interest, and penalties to investor victims. The federal securities laws authorize the Commission in administrative proceedings to establish disgorgement and other funds to accomplish this goal.
If the Division Director deems it appropriate, a recommendation to appoint an administrator from the qualified pool or to set the amount of, or waive for good cause shown, any administrator's bond may be submitted to the Commission for review.
The Commission finds, in accordance with the Administrative Procedure Act (“APA”) 5 U.S.C. 553(b)(3)(A), that this amendment relates solely to agency organization, procedure, or practice, and does not relate to a substantive rule. Accordingly, the provisions of the APA regarding notice of rulemaking, opportunity for public comment, and publication of the amendment prior to its effective date are not applicable. For the same reason, and because this amendment does not substantively affect the rights or obligations of non-agency parties, the provisions of the Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(3)(C), are not applicable. Additionally, the provisions of the Regulatory Flexibility Act, which apply only when notice and comment are required by the APA or other law, 5 U.S.C. 603, are not applicable. Further, because this amendment imposes no new burdens on private persons, the Commission does not believe that the amendment will have any anti-competitive effects for purposes of Section 23(a)(2) of the Exchange Act, 15 U.S.C. 78w(a)(2). Finally, this amendment does not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1980, as amended. Accordingly, the amendment is effective [insert date of
Administrative practice and procedure, Authority delegations (Government agencies).
For the reasons set out in the preamble, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:
15 U.S.C. 77o, 77s, 77sss, 78d, 78d–1, 78d–2, 78w, 78ll(d), 78mm, 80a–37, 80b–11, 7202, and 7211
(a) * * *
(17) With respect to disgorgement and Fair Fund plans established in administrative proceedings instituted by the Commission pursuant to the federal securities laws, to appoint a person as a plan administrator, if that person is included in the Commission's approved pool of administrators, and, for an administrator appointed pursuant to this delegation, to set the amount of or waive for good cause shown, the administrator's bond required by § 201.1105(c) of this chapter.
By the Commission.
Social Security Administration.
Final rule.
This final rule adopts, without change, the notice of proposed rulemaking (NPRM) we published in the
This final rule is effective September 3, 2013.
Cheryl Williams, Office of Medical Listings Improvement, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235–6401, (410) 965–1020. For information on eligibility or filing for benefits, call our national toll-free number, 1–800–772–1213, or TTY 1–800–325–0778, or visit our Internet site, Social Security Online, at
On January 28, 2013, we published an NPRM that proposed replacing the term “mental retardation” with “intellectual disability” in our listings that we use to evaluate claims involving mental disorders in adults and children under titles II and XVI of the Social Security Act (Act) and in other appropriate sections of our rules.
The term “intellectual disability” is gradually replacing the term “mental retardation” nationwide. Advocates for individuals with intellectual disability have rightfully asserted that the term “mental retardation” has negative connotations, has become offensive to many people, and often results in misunderstandings about the nature of the disorder and those who have it.
In October 2010, Congress passed Rosa's Law, which changed references to “mental retardation” in specified Federal laws to “intellectual disability,” and references to “a mentally retarded individual” to “an individual with an intellectual disability.”
In the NPRM, we provided the public a 30-day comment period, which ended on February 27, 2013. We received 76 comments. Seventy-one commenters enthusiastically supported our proposal to replace the term “mentally retarded” with intellectual disability or another term, while only five opposed the change. The comments came from national advocacy and disability rights groups, professional organizations, disability examiners, parents, and members of the public. We summarized and paraphrased the significant comments in our responses below. We carefully considered all of the comments. However, we did not make any changes to the final rule.
Almost all commenters noted the negative connotations and offensive nature of term “mental retardation.” Often, commenters referred to the word “retarded” as “the R-word.” Several provided personal stories about the effect the words “retarded” and “mental retardation” have had on a loved one with a disability and expressed their gratitude for our proposing to remove the term from the listings. One organization observed that the “change in terminology is consistent with the widely expressed desire of people with intellectual disability for the use of modern, respectful language.” Another organization stated, “We appreciate SSA's commitment to eliminate outdated terminology and the negative stereotypes that they perpetuate for people with disabilities.” One commenter, a graduate student in vocational rehabilitation, observed how
Most commenters also supported our proposed adoption of the term “intellectual disability.” One organization noted how our adoption of “intellectual disability” would “align SSA's medical listings and other rules with terminology used by many federal agencies under Rosa's Law. This change is long overdue and [they] are glad SSA is taking this important step which will help fight stigma in this country.” Another organization observed how “people will be able to file a claim for Social Security benefits based on having an ‘intellectual disability,' rather than being forced to identify themselves with a label that many find offensive and degrading.” In supporting the change, one individual commenter stated that “ ‘intellectual disability' is much more respectful than `mental retardation.’ ” Another commented, “It is critical that SSA treat applicants respectfully, and using the term ‘intellectual disability' is the respectful terminology.”
In the fifth edition of the
As we noted in the NPRM, unlike other agencies, we are bound by a legal definition of the word “disability.” The Act and our regulations define “disability” in specific terms and outline the requirements that an individual must meet in order to establish entitlement or eligibility to receive disability benefits.
We consulted with the Office of Management and Budget (OMB) and determined that this final rule does not meet the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563.
We certify that this final rule will not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.
While this rule will not impose new public reporting burdens, it will require changes to existing OMB-approved information collections that contain the language referenced in this rule. We will make changes to the affected information collections via separate non-substantive change requests.
Administrative practice and procedure; Blind, Disability benefits; Old-Age, Survivors, and Disability Insurance; Reporting and recordkeeping requirements; Social Security.
Administrative practice and procedure, Medicaid, Reporting and recordkeeping requirements, Supplemental Security Income (SSI).
For the reasons set out in the preamble, we amend 20 CFR chapter III as follows:
Secs. 202, 205(a)–(b) and (d)–(h), 216(i), 221(a), (i), and (j), 222(c), 223, 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 405(a)–(b) and (d)–(h), 416(i), 421(a), (i), and (j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104–193, 110 Stat. 2105, 2189, sec 202, Pub. L. 108–203, 118 Stat. 509 (42 U.S.C. 902 note).
Secs. 205(a), (j), and (k), and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a), (j), and (k), and 902(a)(5)).
Secs. 702(a)(5), 1613(a)(2) and (d)(1) of the Social Security Act (42 U.S.C. 902(a)(5) and 1383(a)(2) and (d)(1)).
Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a), (c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and (p), and 1383b); secs. 4(c) and 5, 6(c)–(e), 14(a), and 15, Pub. L. 98–460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 note, and 1382h note).
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations regarding the exception to the deduction limitations on certain expenditures paid or incurred under reimbursement or other expense allowance arrangements. These final regulations affect taxpayers that pay or receive advances, allowances, or reimbursements under reimbursement or other expense allowance arrangements and clarify the rules for these arrangements.
Patrick Clinton, (202) 622–4930 (not a toll free number).
This document contains final regulations that amend the Income Tax Regulations (26 CFR part 1) under section 274(e)(3) of the Internal Revenue Code (Code). The regulations provide rules for the exception under section 274(e)(3) to the section 274(a) and (n) deduction limitations for certain expenditures paid or incurred under reimbursement or other expense allowance arrangements. The final regulations clarify the definition of reimbursement or other expense allowance arrangements for purposes of section 274(a) and (n) and how the deduction limitations apply to reimbursement arrangements between more than two parties.
On August 1, 2012, a notice of proposed rulemaking (REG–137589–07) was published in the
The proposed regulations would amend regulations that apply the section 274(e)(3) exception to reimbursement and other expense allowance arrangements involving employees. The proposed regulations clarify that these rules apply to reimbursement or other expense allowance arrangements between payors and employees. Under the proposed regulations, a payor may be an employer, an agent of the employer, or a third party.
The commentator suggested that the change in terminology is confusing and that the final regulations either should retain the term employer or further define the terms.
The regulations use the term
The proposed regulations provide that, for a reimbursement or other expense allowance arrangement involving persons that are not employees (an independent contractor and a client or customer), the parties may expressly identify the party subject to the section 274(a) and (n) limitations. If the agreement does not specify a party, the limitations apply to the client if the independent contractor accounts to the client for (substantiates) the expenses, and to the independent contractor if the independent contractor does not account to the client. The commentator suggested that the language of section 274(e)(3) does not permit the parties to choose which party is subject to the limitations.
Section 274(e)(3)(B) provides that taxpayers may identify the party subject to the section 274(a) and (n) limitations by accounting or not accounting for expenses and therefore contemplates identification of the party subject to the limitations. The final regulations provide a rule that gives taxpayers the flexibility contemplated under section 274(e) and is easily administrable for the IRS. Accordingly, the final regulations do not adopt this comment.
These regulations apply to expenses paid or incurred in taxable years beginning after August 1, 2013. Taxpayers may apply these regulations to expenses paid or incurred in taxable years beginning on or before August 1, 2013 for which the period of limitation on credit or refund under section 6511 has not expired.
It has been determined that this Treasury decision 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 also has 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 regulations do 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, the notice of proposed rulemaking that preceded these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business, and no comments were received.
The principal author of these final regulations is Patrick Clinton of the Office of Associate Chief Counsel (Income Tax & Accounting). However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 7805 * * *
Section 1.274–2 also issued under 26 U.S.C. 274(o). * * *
(f) * * *
(2) * * *
(iv)
(B)
(
(
(C)
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(D)
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(E)
(i) Y, an employee, performs services under an arrangement in which L, an employee leasing company, pays Y a per diem allowance of $10x for each day that Y performs services for L's client, C, while traveling away from home. The per diem allowance is a reimbursement of travel expenses for food and beverages that Y pays in performing services as an employee. L enters into a written agreement with C under which C agrees to reimburse L for any substantiated reimbursements for travel expenses, including meals, that L pays to Y. The agreement does not expressly identify the party that is subject to the deduction limitations. Y performs services for C while traveling away from home for 10 days and provides L with substantiation that satisfies the requirements of section 274(d) of $100x of meal expenses incurred by Y while traveling away from home. L pays Y $100x to reimburse those expenses pursuant to their arrangement. L delivers a copy of Y's substantiation to C. C pays L $300x, which includes $200x compensation for services and $100x as reimbursement of L's payment of Y's travel expenses for meals. Neither L nor C treats the $100x paid to Y as compensation or wages.
(ii) Under paragraph (f)(2)(iv)(D)(
(iii) Because the agreement between L and C expressly states that C will reimburse L for substantiated reimbursements for travel expenses that L pays to Y, under paragraph (f)(2)(iv)(D)(
(i) The facts are the same as in
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(ii) The arrangement between L and C is not a reimbursement or other expense allowance arrangement within the meaning of section 274(e)(3)(B) and paragraph (f)(2)(iv)(D)(
(F)
Except as provided in §§ 1.274–2(a), 1.274–2(e), 1.274–2(f)(2)(iv)(F), and 1.274–5, §§ 1.274–1 through 1.274–7 apply to taxable years ending after December 31, 1962.
Environmental Protection Agency (EPA).
Final rule.
EPA is taking final action to correct the May 2004 approval of a version of the New Source Review (NSR) rules for the San Joaquin Valley Unified Air Pollution Control District portion of the California State Implementation Plan, consistent with the relevant provisions of state law. Specifically, EPA is taking final action to correct the May 2004 approval by limiting the approval, as it relates to agricultural sources, to apply the permitting requirements only to such sources with potential emissions at or above a major source applicability threshold and to such sources with actual emissions at or above 50 percent of a major source applicability threshold and to apply the emission offset requirement only to major agricultural sources and major modifications of such sources.
This rule is effective on September 3, 2013.
EPA has established docket number EPA–R09–OAR–2010–0062 for this action. The index to the docket is available electronically at
Laura Yannayon, Permits Office (AIR–3), U.S. Environmental Protection Agency, Region IX, (415) 972–3534,
Throughout this document, “we,” “us” and “our” refer to EPA.
On January 29, 2010 (75 FR 4745), under the Clean Air Act (CAA or “Act”), we proposed three actions in connection with the permitting rules for the San Joaquin Valley Unified Air Pollution Control District (“District”) portion of the California State Implementation Plan (SIP).
First, in our proposed rule, we proposed to correct an error in our May 2004 final rule approving Rules 2020 (“Exemptions”) and 2201 (“New and Modified Stationary Source Review Rule”), as amended by the District in December 2002, that establish the requirements and exemptions for review of new or modified stationary sources (“new source review” or “NSR”). Herein, we refer to District Rules 2020 and 2201 as the “District's NSR rules.” In our proposed rule, we explained how our error arose from the failure, in light of information available at the time, to recognize that the District did not have the authority under state law to implement the District's NSR rules with respect to permitting of minor agricultural sources with actual emissions less than 50% of the applicable “major source” thresholds and with respect to the imposition of emissions offset requirements for minor agricultural sources.
In addition to the error correction described above, our January 2010 proposed rule also proposed two other actions: (a) a limited approval and limited disapproval of the District's NSR rules, as further amended in 2007 and
On May 11, 2010 (75 FR 26102), we finalized the proposed action on the 2007 and 2008 amendments to the District's NSR rules,
In our proposed rule, we provided a detailed background discussion regarding the District's NSR rules and related EPA SIP actions. See pages 4746–4747 of our proposed rule. In the following paragraphs, we provide a summary of this information. For more details, please see our proposed rule.
EPA originally approved the District's NSR rules as part of the California SIP in 2001.
To correct this deficiency, in December 2002, the District amended their NSR rules to eliminate the agricultural permitting exemption in its entirety, and, later that same month, the California Air Resources Board (CARB) submitted the District's amended NSR rules to EPA as a revision to the California SIP. Shortly thereafter, EPA proposed approval of the amended District NSR rules, see 68 FR 7330 (February 13, 2003), even though we recognized that “California Health & Safety Code 42310(e) continues to preclude the District, as well as all other districts in California, from permitting agricultural sources under either title I or title V of the CAA.” See 68 FR 7330, at 7335. We did so in light of a proposed “SIP Call” that we issued on the same day as we proposed approval of the amended District NSR rules. See 68 FR 7327 (February 13, 2003). The SIP Call was based on our finding that the California SIP was substantially inadequate by failing to provide the necessary assurances under CAA section 110(a)(2)(E) that the State had the legal authority to carry out its NSR permitting obligations under the CAA with respect to major agricultural sources. EPA finalized the SIP Call in mid-2003, and thereby required California to submit the necessary assurances of authority to support an affirmative finding by EPA under CAA section 110(a)(2)(E). 68 FR 37746 (June 25, 2003).
Later in 2003, the California legislature enacted Senate Bill (SB) 700, which the Governor of California signed on September 22, 2003. SB 700 removed the wholesale exemption from permitting for agricultural sources provided under CH&SC section 42310(e) and subjected major agricultural sources to permit requirements. SB 700, however, retained a limited exemption for new source permitting at certain minor agricultural sources, and limited the ability of districts to require minor agricultural sources to obtain offsets.
On May 17, 2004, EPA took final action approving the District's NSR rules, as amended by the District and submitted by CARB in 2002. See 69 FR 27837 (May 17, 2004). These rules, as approved by EPA, did not on their face exempt any agricultural sources from permitting or limit the applicability of offset requirements. EPA's final approval stated that the District had removed its exemption for agricultural sources and that the state had also “removed a similar blanket exemption, thereby providing the District with authority to require air permits for agricultural sources, including federally required NSR permits.” See 69 FR 27837, at 27838. EPA's final approval cited SB 700 in a footnote, but did not note the limited scope of authority for permitting and offset requirements under SB 700, which allowed permitting of only certain minor agricultural sources and continued the exemption for other minor agricultural sources.
In our proposed rule, under CAA section 110(k)(6), we found that (1) our May 2004 final full approval of District's NSR rules was in error in that our approval of the rules should have ensured that the authority in those rules was consistent with the authority granted by SB 700 and that (2) the District did not, as of May 2004, have the authority under SB 700 to require permits for new or modified minor agricultural sources with actual emissions less than 50 percent of the
To correct this error, we proposed to limit our approval of the District's NSR rules to exclude applicability to agricultural sources exempt from new source permitting under SB 700 (i.e., minor sources with actual emissions less than 50 percent of the major source threshold). We also proposed to limit our approval to require offsets only for major agricultural sources, because at the time of our 2010 proposed action, we believed that the District had not found emissions reductions from agricultural sources to meet the criteria for real, permanent, quantifiable, and enforceable emissions reductions and thus had not lifted the restriction otherwise provided in SB 700 (and codified in CH&SC section 42301.18(c)) on the imposition of the emissions offset requirement on new minor agricultural sources or minor modifications of agricultural sources.
For more information about our proposed determination of error and our proposed correction, please see pages 4747–4748 of our proposed rule.
In response to our proposed rule, several comments were submitted that objected to our proposed error correction action and the interpretation of state law upon which it was based, and raised significant questions as to the extent of District authority with respect to agricultural sources under state law. Specifically, the commenters who objected to our proposed correction cited “savings” clauses in state law that they contend ratified the District's NSR rules that contain no permitting or offsets exemptions for agricultural sources notwithstanding other provisions in state law that would otherwise limit District authority over those sources.
To ensure our final action would be informed by the State's interpretation of the relevant provisions of state law, we requested that CARB provide us with a legal interpretation from the California Attorney General of the extent of District authority with respect to agricultural sources under state law.
Our proposed rule (75 FR 4745) provided for a 30-day comment period. During that period, we received adverse comments from three groups: (1) Greenberg-Glusker law firm, on behalf of Dairy Cares, a coalition of California's dairy producer and processor associations (referred to herein as “Dairy Cares”), by letter dated March 1, 2010; (2) Earthjustice, by letter dated March 1, 2010; and (3) the Center on Race, Poverty & the Environment, on behalf of the Association of Irritated Residents and other community and environmental groups (referred to herein as “AIR”), by letter dated March 1, 2010. AIR joins in the comments from Earthjustice, but also adds comments of its own.
All three comment letters cited above included comments on one or more aspects of our proposed rule (e.g., on our proposed limited approval and limited disapproval of the District's NSR rules, as further amended in 2007 and 2008) in addition to comments on the proposed error correction. With respect to the comments germane to the other aspects of our proposed rule, we provided responses in our final action published on May 11, 2010 (75 FR 26102) and do not reopen those issues through today's final action.
CH&SC section 42301.16(a) provides: “In addition to complying with the requirements of this chapter, a permit system established by a district
Moreover, a State must identify the types and sizes of minor stationary sources which will be subject to review [see 40 CFR 51.160(e)]. As such, States are authorized to exempt certain minor stationary sources from such review. No such exemptions are allowed for review of new or modified major sources. Thus, permits for “major sources” can be considered to be “required” in a way that permits for minor sources are not.
In addition, our interpretation of CH&SC section 42301.16(a) is consistent with the fact that the California legislature adopted SB 700 in part in an effort to avoid sanctions that were set in motion by EPA's final determination that the California SIP was “substantially inadequate” because State law did not provide the legal authority allowing State and local permitting agencies to meet the permitting obligations under parts C and D of title I with respect to
To make the equivalency demonstration, the District can use, among other sources of emissions reductions, emission reductions used to meet offset requirements imposed on minor sources. However, the fact that the District can rely, and has relied, on minor source offsets to demonstrate equivalency does not mean that permits for new or modified minor agricultural sources are required under part D of Title I and therefore subject to District permitting authority under CH&SC section 42301.16(a). The District has demonstrated equivalency each year since the tracking system was approved and has never relied on offsets from new minor agricultural sources or minor modifications of agricultural sources to do so. Thus, we disagree with Earthjustice's contention that the District's reliance on minor source (non-agricultural source) offsets to demonstrate equivalency of the District's NSR program with Federal NSR requirements makes all minor source permits, including minor source permits for agricultural sources, required under part D of Title I and thus “required” for the purposes of CH&SC section 42301.16(a).
CH&SC section 39011.5(a) defines “agricultural source of pollution” and “agricultural source” for the purposes of Division 26 (“Air Resources”) of the CH&SC. As noted in our proposed rule (75 FR at 4752), California law defines “agricultural source” as a source of air pollution or group of sources used in the production of crops or the raising of fowl or animals located on contiguous property under common ownership or control that is a confined animal facility (e.g., barn, corral, coop); is an internal combustion engine used in the production of crops or the raising of fowl or animals (e.g., irrigation pumps, but excluding nonroad vehicles such as tractors); or is a title V source or is a source that is otherwise subject to regulation by a district or the federal Clean Air Act. See CH&SC section 39011.5(a). As such, agricultural sources include both combustion sources (such as, internal combustion engines and boilers) and non-combustion sources [e.g., confined animal facilities and on- and off-field vehicular activity (e.g., tilling and harvesting)]. Among the non-combustion agricultural sources, some by their nature generate fugitive emissions such as tilling, harvesting, and vehicle travel over unpaved farm roads.
CH&SC section 39011.5(b) provides that: “Any district rule or regulation affecting stationary sources on agricultural operations adopted on or before January 1, 2004, is applicable to an agricultural source.” In proposing the error correction, we were aware of CH&SC section 39011.5(b) but did not interpret that statutory provision as conferring authority to the District to require permits for all new or modified agricultural sources on January 1, 2004 (i.e., the effective date of SB 700).
Under our interpretation, the savings clause in CH&SC section 39011.5(b) preserves general prohibitory and permitting rules affecting agricultural sources and adopted prior to the effective date of SB 700 (i.e., January 1, 2004) but does not authorize the application of District permitting requirements inconsistent with the limited exemptions set forth in other sections of SB 700 [specifically, CH&SC section 42301.16(c) and 42301.18(c)]. That is, CH&SC section 39011.5(b) simply preserves District rules affecting agricultural sources that were adopted prior to SB 700 and avoids the need to re-adopt such rules after the effective date of SB 700. Under this view, CH&SC section 39011.5(b) preserved the ability of the District to administer its NSR rules and apply them to agricultural sources consistent with SB 700 upon the effective date of SB 700 notwithstanding the fact that the NSR rules were adopted prior to the effective date of SB 700 and thus could not be applied to agricultural sources (because of the preclusion from District permitting for agricultural sources in then-current CH&SC section 42310(e)) at the time the District adopted them.
The California Attorney General's office shares this view:
“. . . . Although California before SB 700's enactment exempted agricultural sources from New Source Review permitting requirements, California law did not preclude districts from adopting emissions-reduction rules of general application (independent of the New Source Review process) that would apply to agricultural stationary sources. Some districts had such rules and, following SB 700's enactment, section 39011.5, subdivision (b) preserved them. For example, where air pollution control districts had regulated stationary diesel engines or generators, those regulations were not limited or diminished by SB 700 merely because the regulated equipment happened to be located on or involved in what SB 700 now termed `agricultural sources.' Therefore, section 39011.5, subdivision (b) has a limited and distinct purpose; it preserves and validates those existing equipment-governing regulations of general application, that, without such a savings clause, might be construed as invalid because the regulated equipment was included as part of SB 700's `agricultural sources.' Subdivision (b) does not authorize district New Source Review rules that conflict with the sections of SB 700 that address the New Source Review permitting process.”
CH&SC section 39011.5(c) provides in relevant part: “Nothing in this section limits the authority of a district to regulate a source, including, but not limited to, a stationary source that is an agricultural source, over which it otherwise has jurisdiction pursuant to this division, or pursuant to the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) or any rules or regulations adopted pursuant to that act that were in effect on or before January 1, 2003, or . . . .”
Similar to CH&SC section 39011.5(b), EPA did not view CH&SC section 39011.5(c) as validating the application of District permitting requirements to all new or modified agricultural sources inconsistent with the limited exemptions found in other sections of SB 700 [specifically, CH&SC section 42301.16(c) and 42301.18(c)]. Under our view, the phrase “nothing in this section” limits the reach of CH&SC section 39011.5(c) to the other provisions in CH&SC section 39011.5, i.e., the definition of “agricultural source” in CH&SC section 39011.5(a) and the savings clause in CH&SC section 39011.5(b), discussed above. As such, we view CH&SC section 39011.5(c) as ensuring that the definition of “agricultural source” and the savings clause in paragraph (b) does not inadvertently limit the authority of districts to regulate sources, including agricultural sources, over which the districts otherwise have jurisdiction pursuant to rules adopted before January 1, 2003, and does not inform our interpretation of other sections of SB 700, such as CH&SC section 42301.16(c) and 42301.18(c). Thus, CH&SC 39011.5(c) in no way undermines our determination in the proposed rule that the District's authority to permit agricultural sources and to impose emissions offset requirements on such sources was limited under State law notwithstanding the absence of such limiting language in the District's NSR rules as adopted in December 2002 and approved by EPA in May 2004.
The California Attorney General's office agrees that CH&SC section 39011.5(c) does not authorize NSR rules that conflict with other sections of SB 700 that expressly address the NSR permitting process. The California Attorney General's office explains:
“Likewise, [CH&SC section 39011.5(c)] does not authorize district New Source Review rules that conflict with SB 700's provisions concerning the New Source Review process. Subdivision (c) provides that nothing in that section limits a district's authority to regulate a source over which it otherwise has jurisdiction under the Clean Air Act or any Clean Air Act rules or regulations that were in effect on or before January 1, 2003. That is, subdivision (c) clarifies that section 39011.5 itself does not
Thus, we continue to read the savings clauses of CH&SC section 39011.5(b) and (c) as not validating the application of District permitting requirements to all new or modified agricultural sources inconsistent with the limited exemptions found in other sections of SB 700, and as consistent with our finding in the proposed rule that the absence of the limited exemptions in SB 700 for agricultural sources in the District's NSR rules resulted in a mismatch between the SIP and the District's authority under State law when we approved the District's NSR rules in May 2004.
In response to this comment, we reviewed again the language of CH&SC section 42301.18(c) and acknowledge that it does not specify any particular process for determining when the criteria, that would authorize imposition by a District of the emission offset requirement for a new or modified minor agricultural source, have been met for the given minor agricultural source. We also reviewed the CARB reference cited above in Earthjustice Comment #5, and agree that it does not support EPA's understanding that a determination by the District is a prerequisite to the District's authority to impose the emissions offset requirement to new or modified minor agricultural sources under CH&SC section 42301.18(c), to the extent that the “determination” consists of a regulatory protocol or District rule allowing such offsets to be generated. In the CARB reference cited by Earthjustice, CARB writes:
“With respect to our interpretation of [CH&SC section 42301.18(c)], we believe that section 42301.18(c) does not ask whether or not the District has a regulatory protocol to verify whether ERC's offered by agricultural source are creditable, but rather sets forth the objective, generic criteria that must be satisfied by an agricultural source seeking credits for its emission reductions. If the proffered reductions were real (i.e., surplus to required reductions), quantifiable, and enforceable, then the source would be able to use (or bank) them as credits and the District may, therefore, require the source to provide offsets. The use of the subjective “would not meet” is critical in interpreting this provision; it focuses the inquiry on whether the emissions reductions meet the generic criteria that the U.S. EPA and the ARB and air districts have, since 1976, required of sources in order for the reductions to “count” for purposes of attaining ambient standards and to qualify for use as offsets. The existence of a District rule allowing offsets to be generated is not germane to determining whether emission reductions from a given agricultural source “would” meet the criteria for real, permanent, quantifiable, and enforceable.”
However, whether emissions reductions from a given agricultural source meet the relevant criteria is not self-evident or self-implementing. Some determination is necessary. For instance, the District is the agency responsible for allowing the emissions reductions from a given agricultural source to be banked or used for the purpose of offsetting emissions increases from new or modified stationary sources that are subject to the offset requirement under an approved NSR program. If the District allowed emission reductions to be banked or used for offsetting emission increases, then the District would thereby be determining that the emissions reductions are “real, permanent, quantifiable, and enforceable” since those are the basic criteria for judging the creditability of emission reductions for use as NSR offsets. The District's authority to impose the offset requirement on new or modified minor agricultural sources would vest as to those agricultural sources for which it has allowed banking or use of emission reductions for NSR offset purposes. Thus, while no protocol or District rule specifically directed at agricultural sources need be adopted for the offset authority to vest, some determination is necessary. Because no such determination was made during the relevant period between the effective date of EPA's 2004 approval of the previous version of District NSR rules and the effective date of EPA's 2010 approval of District NSR rules that align such rules with SB 700, EPA continues to believe that limiting its approval to exempt new minor agricultural sources and minor modifications to existing agricultural sources from the offset requirement is warranted.
EPA's position is supported by the California Attorney General's Office. In its March 2013 letter, the California Attorney General's Office writes: “It is our understanding that currently emissions reductions from minor agricultural sources do not meet the criteria for real, permanent, quantifiable and enforceable emission reductions. On these facts, the plain language of [CH&SC section 42301.18(c)] serves to suspend the duty of a minor agricultural source to offset emissions from that source.”
The California Attorney General's Office, in its March 2013 letter, maintains that its reading of CH&SC section 42301.18(c) is consistent with CARB's letter to the California Air Pollution Control Officers, dated September 3, 2008, which was included as an attachment to the California Attorney General office's letter, dated March 18, 2013, and which provides the following guidance with respect to CH&SC section 42301.18(c):
“This limited exemption from the offset requirement means that agricultural sources that are not amenable to District prohibitory rules or control measures that would qualify for SIP credit—or that are unable to generate emission reductions that would qualify as offsets—because they fail to meet one or more of the basic criteria for a creditable rule or for offset credit cannot be required to provide offsets.
We believe this exemption is based upon considerations of equity. If a source cannot get credit for its emission reductions in the SIP or cannot quantify its surplus emission reductions for banking and later use as offsets, it should not be required to provide offsets. This exemption should be narrowly applied, and in any event, cannot be used to exempt major federal sources from offset requirements.”
During the relevant time period, EPA approved several District rules affecting agricultural sources, and several District air quality plans that reflect emissions reductions from implementation of those rules. For example, EPA approved District Rule 4550 (“Conservation Management Practices”) and its associated List of Conservation Management Practices at 71 FR 7683 (February 14, 2006), District Rule 4570 (“Confined Animal Facilities”) at 75 FR 2079 (January 14, 2010), the 2003 San Joaquin Valley PM
However, the use of the conjunction “or” by CARB in its discussion of CH&SC section 42301.18(c), quoted above, means that, under CARB's interpretation, even if SIP credit were approved for prohibitory rules or control measures, new or modified minor agricultural sources could not be required to provide emissions offsets if they are unable to generate emission reductions that would qualify as offsets. Thus, we find that CARB's interpretation of CH&SC section 42301.18(c) supports EPA's limitation on its May 2004 approval to exempt new minor agricultural sources and minor modifications of existing agricultural sources from the emissions offset requirement because, under that provision of State law, the District did not have the authority to require such sources to provide emissions offsets because such sources were unable to generate emissions reductions that qualify as offsets during the relevant time period.
Section 110(k)(6) does not allow EPA to revise the rule itself, only the action used to approve the rule. The “actions” on a SIP submittal are outlined in section 110(k)(3) and include full and partial approval or disapproval. First, there should be little question that EPA could not have partially approved the District's NSR rules as submitted in 2002. The other option theoretically available to EPA at the time of the 2004 action was the “limited approval/limited disapproval,” but EPA guidance cautions against use of that option to approve any rule that is unenforceable for all situations.
In doing so, our action amounts to a revision to the approved California SIP that was applicable between June 2004 and June 2010.
Second, we agree that there are significant obstacles to correcting our May 2004 action on the District's NSR rules by revising the action from a full approval to a “partial approval/partial disapproval” or “limited approval/limited disapproval.” For instance, a “partial approval/partial disapproval” action is problematic in this instance because, as a general matter, NSR rules are not separable. Correcting our action from a full approval action to a “limited approval/limited disapproval” action is problematic in that it would incorporate the entire rule into the California SIP, and thus would not remedy the problem of the mismatch between the District
We disagree, however, that we could not have limited our approval in May 2004 under section 110(k)(3) in the same manner as we are doing today, but in any event, for today's action, we are relying on section 110(k)(6), not on section 110(k)(3). We believe that the action we proposed to limit our previous approval and that we are finalizing today is authorized under the broad discretionary language of CAA section 110(k)(6):
“Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), . . . was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.”
With this action, EPA is determining that its action approving the District's NSR rules in May 2004 was “in error” due to the mismatch between the facial applicability in the NSR rules of the permitting and emission offset requirements to minor agricultural sources and the limits on District authority under State law applicable at the time of our SIP approval. Given the mismatch between the exclusions and exemptions apparent from the words of the District NSR rules and the limits under State law, EPA was in error in fully approving the NSR rules because the SIP and SIP revisions must be supported by necessary assurances by the State that, in this context, the District will have adequate authority under State law to carry out such SIP or SIP revisions and the State of California could not have provided such necessary assurances in May 2004 with respect to minor agricultural sources because of the limits on District authority at the time manifest in SB 700. See CAA section 110(a)(2)(E) and our January 29, 2010 proposed rule at pages 4747–4748.
EPA is further determining that the appropriate action EPA can take—in light of the broad discretion conferred by the phrase, “revise such action
In limiting our previous approval in this manner, we are taking an approach analogous to the one EPA took with respect to the Agency's previous SIP approvals of certain State programs for the Prevention of Significant Determination (PSD) to the extent those programs applied PSD to greenhouse gas (GHG) emitting sources below the thresholds in the final “Tailoring Rule” published at 75 FR 31514 on June 3, 2010. See our final rule, “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans,” referred to as the PSD SIP “Narrowing Rule,” at 75 FR 82536 (December 30, 2010). In the case of the previous approvals of State PSD programs, EPA determined that its action approving the PSD SIP provisions was “in error” due to the mismatch between the PSD applicability provisions and the state's “necessary assurances” under CAA section 110(a)(2)(E) of adequate resources and further determined that the “appropriate action” to correct the error was to narrow its approval of the PSD programs to the extent they applied PSD to GHG-emitting sources below the Tailoring Rule threshold.
Here, in this action, EPA is determining that its action approving the District's NSR rules was “in error” due to the mismatch between the applicability provisions of the District NSR rules and the state's “necessary assurance” under CAA section 110(a)(2)(E) of adequate legal authority and is further determining that the “appropriate action” to correct the error is to limit its previous approval of the District's NSR rules in May 2004 to align the permitting applicability and offset requirement in the approved SIP to the authority granted the District under State law. EPA's PSD SIP “Narrowing Rule” contains a detailed discussion (see pages 82543–82545) justifying the reliance on CAA section 110(k)(6) to narrow previous SIP approvals and we incorporate that discussion herein.
Lastly, Earthjustice would agree that EPA could have disapproved the District's NSR rules as submitted in December 2002, and thus would agree that we could now, under section 110(k)(6), change our former “approval” to “disapproval,” but such an action would have the deleterious effect of removing the December 2002 version of the NSR rules from the SIP entirely notwithstanding the significant strengthening they represented relative to the then-existing SIP District NSR rules approved in 2001 (66 FR 37587, July 19, 2001) that included a blanket exemption for agricultural sources. Our action to limit our approval is narrowly tailored to retain the strengthening aspects of the December 2002 version of the NSR rules while still addressing the mismatch between the language of the NSR rules and the District's authority under State law. Our purpose in doing so is to align the SIP approved by EPA in May 2004 with the intent of both EPA and the State of California to address the deficiencies in the District's NSR rules, including the previous blanket exemption for agricultural sources as it applied to
After due consideration of the comments submitted on our proposed action, and in light of California's interpretation of SB 700 as it applies to the District's NSR rules, we are taking final action under CAA section 110(k)(6) to correct our erroneous approval in May 2004 of San Joaquin Valley District NSR rules, Rule 2020 (“Exemptions”) and Rule 2210 (“New and Modified Stationary Source Review Rule”), as amended by the District in December 2002. In doing so, we are determining that such previous approval was in error for the purposes of CAA section 110(k)(6) because we failed to recognize that the State could not provide the necessary assurances under CAA section 110(a)(2)(E) that the District had the authority to implement its amended NSR rules as those rules applied to agricultural sources given that the District's NSR rules, as adopted in 2002, did not reflect the qualified permitting and emissions offset exemptions provided in SB 700 with respect to minor agricultural sources.
To correct this error, we are revising our previous action by limiting our previous approval, as it relates to agricultural sources, to the extent that the permit requirements apply (1) to agricultural sources with potential emissions at or above a major source applicability threshold and (2) to agricultural sources with actual emissions at or above 50 percent of a major source applicability threshold. We are also limiting our previous approval, as it relates to agricultural sources, to the extent that the emission offset requirements apply to major agricultural sources and major modifications of such sources.
To codify the new limitation on our previous approval, we are adding a new section to 40 CFR part 52 (“Approval and promulgation of implementation plans”), subpart F (“California”). The new section is 40 CFR 52.245 (“New Source Review Rules”).
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
This rule will not have a significant impact on a substantial number of small entities because error correction actions under section 110(k)(6) of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because this error correction action does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds.
Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed
EPA has determined that the error correction action promulgated today does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action aligns requirements under Federal law with those under state and local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
Executive Order 13132,
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely corrects an error in a previous EPA rulemaking, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not apply to this rule.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it corrects a previous EPA approval of a State rule implementing a Federal standard.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
The Congressional Review Act, 5 U.S.C. section 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Oxides of nitrogen, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(a) Approval of the New Source Review rules for the San Joaquin Valley Unified Air Pollution Control District Rules 2020 and 2201 as approved on May 17, 2004 in § 52.220(c)(311)(i)(B)(
(1) To agricultural sources with potential emissions at or above a major source applicability threshold; and
(2) To agricultural sources with actual emissions at or above 50 percent of a major source applicability threshold.
(b) Approval of the New Source Review rules for the San Joaquin Valley Unified Air Pollution Control District Rules 2020 and 2201 as approved on May 17, 2004 in § 52.220(c)(311)(i)(B)(
Environmental Protection Agency (EPA).
Final rule.
The EPA is approving the State Implementation Plan (SIP) submittals from the State of Oregon to demonstrate that the SIP meets the infrastructure requirements of the Clean Air Act (CAA) for the National Ambient Air Quality Standards (NAAQS) promulgated for fine particulate matter (PM
This action is effective on September 3, 2013.
The EPA has established a docket for this action under Docket ID No. EPA–R10–OAR–2011–0884. All documents in the docket are listed on the
Kristin Hall at (206) 553–6357,
Throughout this document wherever “we”, “us” or “our” are used, it is intended to refer to the EPA. Information is organized as follows:
On March 21, 2013, the EPA proposed to approve the September 25, 2008, December 23, 2010, August 17, 2011, and December 19, 2011 SIP submittals from the State of Oregon to demonstrate that the SIP meets the requirements of CAA sections 110(a)(1) and (2) for the NAAQS promulgated for fine particulate matter (PM
The EPA disagrees with the commenter's conclusion that the Oregon SIP must, or can be disapproved contingent upon a particular, potential, future permitting decision. Rather, our analysis of the Oregon SIP as discussed in the NPR, set forth the EPA's basis for concluding that the current Federally-approved Oregon SIP meets the requirements of CAA section 110(a)(2)(A) for purposes of the 2006 PM
As described above, the comment focused on the Coyote Island Terminal, LLC's proposed Morrow Pacific Project, asserting that if permitted, the source would, in the future, emit PM
The EPA finds that Oregon's SIP contains “emission limits and other control measures” that are appropriate to ensure attainment of the 2006 PM
The commenter's conclusion that “if the Oregon Department of Environmental Quality issues an air pollution permit to the Coyote Island terminal, it will demonstrate that the Oregon SIP currently lacks emission limits and other measures to ensure attainment and maintenance of the 2006 PM
The EPA believes the current, Federally-approved Oregon SIP includes enforceable emission limitations and other control measures, means, or techniques to attain and maintain the 2006 PM
The EPA has determined that the September 25, 2008, December 23, 2010, August 17, 2011, and December 19, 2011, SIP submittals from the State of Oregon are consistent with the requirements of section 110 of the CAA. Therefore, the EPA is approving the SIP submittals from the State of Oregon to demonstrate that the SIP meets the infrastructure requirements of the CAA for the NAAQS promulgated for PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves the state's law as meeting Federal requirements and does not impose additional requirements beyond those imposed by the state's law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in Oregon, and the EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Particulate matter, and Reporting and recordkeeping requirements.
42 U.S.C. 7401
40 CFR part 52 is amended as follows:
42 U.S.C. 7401 et seq.
(b) On September 25, 2008, December 23, 2010, August 17, 2011, and December 19, 2011, the Oregon Department of Environmental Quality submitted SIP revisions to address the requirements of CAA sections 110(a)(1) and (2) for the 1997 PM
Environmental Protection Agency (EPA).
Final rule; administrative change.
EPA is updating the materials that are incorporated by reference (IBR) into the Pennsylvania State Implementation Plan (SIP). The regulations affected by this update have been previously submitted by the Pennsylvania Department of Environmental Protection (PADEP) and approved by EPA. This update affects the SIP materials that are available for public inspection at the National Archives and Records Administration (NARA), the Air and Radiation Docket and Information Center located at EPA Headquarters in Washington, DC, and the EPA Regional Office.
This action is effective August 1, 2013.
SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations: Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 1301 Constitution Avenue NW., Room Number 3334, EPA West Building, Washington, DC 20460; or the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Harold A. Frankford, (215) 814–2108 or by email at
The SIP is a living document which a state revises as necessary to address its unique air pollution problems. Therefore, EPA, from time to time, must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and the Office of the Federal Register (OFR). The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997
Since the publication of the last IBR update, EPA has approved the following regulatory changes to the following regulations and sections for Pennsylvania and Allegheny County:
1. Additions of the following regulations or sections in 25 PA Code, article III:
a. Chapter 123 (Standards for Contaminants, Particulate Matter Emissions), section 123.14 (Outdoor wood-fired boilers).
b. Chapter 126 (Standard for Motor Fuels), subchapter D (Motor Vehicle Emissions Control Program), section 126.451 (Responsibilities of the Department).
c. Chapter 127 (Construction, Modification, Reactivation, and Operation of Sources), subchapter B (Plan Approval Requirements), section 127.12d (Completeness determination).
d. Chapter 127, subchapter E (New Source Review), sections 127.201a, 127.203a, and 127.218.
e. Chapter 129 (Standards for Sources, Sources of VOCs), sections 129.52a, 129.52b, and 129.52c.
f. Chapter 129 (Standards for Sources, Control of Emissions from Glass Melting Furnaces), sections 129.301 through 129.310 inclusive.
g. Chapter 130 (Standards for Products), subchapter D (Adhesives, Sealants, Primers, and Solvents), sections 130.701 through 130.708 inclusive.
h. Chapter 145 (Interstate Pollution Transport Reduction), subchapter C (Emissions of NOx from Cement Manufacturing), sections 145.144, 145.145, and 145.146.
2. Addition of Title 35 (Health and Safety) of the Pennsylvania Statute (Pa. Cons. Stat. Ann.), Chapter 23B (Diesel-Powered Motor Vehicle Idling Act), sections 4601 through 4610 inclusive.
3. Additions of the following regulations or sections in Allegheny County Article XXI:
a. Part B (Permits Generally), Section 2102.07 (Prevention of Significant Deterioration).
b. Part E (Source Emission and Operating Standards), subpart 8 (Additional Miscellaneous VOC Sources), section 2105.88 (Consumer Products).
c. Part E, subpart 10 (NO
1. Revisions to the following regulations or sections in 25 PA Code, Article III:
a. Chapter 121 (General Provisions), section 121.1 (Definitions).
b. Chapter 126, subchapter D, sections 126.401, 126.411, 126.412, 126.413, 126.421 through 126.425 inclusive, 126.431, 126.432, and 126.441.
c. Chapter 127, subchapter B, sections 127.12b, 127.13, 127.44, 127.45, and 127.48.
d. Chapter 127, subchapter E, sections 127.201 through 127.215 inclusive and 127.217.
e. Chapter 129, Sources of VOCs, sections 129.51, 129.52, and 129.66.
f. Chapter 145, subchapter C, sections 145.142 and 145.143.
2. Revision to Allegheny County Article XXI, part B, section 2102.06 (Major Sources Locating In or Impacting a Nonattainment Area).
In 25 PA Code Article III, section 126.402 (NLEV scope and applicability) of chapter 126, subchapter D has been removed.
In this action, EPA is announcing the update to the IBR material as of April 1, 2013. EPA is also correcting typographical errors and omissions found in the table for paragraph 52.2020(c)(2), specifically adding a title entry for Part E, subpart 8 (Additional Miscellaneous VOC Sources) and removing the word “Section” in the “Article XX or XXI citation” column for entries 2105.88 and 2105.101. In the table for paragraph 52.2020(d)(1), EPA is revising the title heading in the second column from “Permit No.” to “Permit Number.” EPA has determined that the actual entries found in the table of paragraph 52.2020(d)(1) are correct in the Code of Federal Regulations (CFR) and need no additional editing at this time. EPA has further determined that the entries found in the tables of paragraphs 52.2020(c)(1), (c)(3), (d)(2) through (d)(4), (e)(1), and (e)(2) are correct in the CFR and need no additional editing at this time.
EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by removing outdated citations and incorrect table entries.
Under the Clean Air Act (CAA), the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
EPA has also determined that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the Pennsylvania SIP compilations had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for this “Identification of plan” update action for Pennsylvania.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and record keeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR Part 52 is amended as follows:
42 U.S.C. 7401
The amendments read as follows:
(b)
(2)(i) EPA Region III certifies that the following rules and regulations provided by EPA at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated State rules/regulations which have been approved as part of the State implementation plan as of April 1, 2013:
(A) Materials in Notebook “40 CFR 52.2020(c)(1)—1. PA Department of Environmental Protection (PA DEP); 2. PA Department of Transportation (PA DOT).”
(B) Materials in Notebook “1. 40 CFR 52.2020(c)(2)—Allegheny County Health Department (ACHD); 2. 40 CFR 52.2020(c)(3)—Philadelphia Air Management Services (AMS).”
(ii) EPA Region III certifies that the following source-specific requirements provided by EPA at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated State source-specific requirements which have been approved as part of the State implementation plan as of November 1, 2006. No additional revisions were made between November 1, 2006 and April 1, 2013:
(A) [Reserved.]
(B) Materials in Notebook “40 CFR 52.2020(d)(1)—Source-specific Requirements—Volume 1, Part 1.”
(C) Materials in Notebook “40 CFR 52.2020(d)(1)—Source-specific Requirements—Volume 1, Part 2.”
(D) Materials in Notebook “40 CFR 52.2020(d)(1)—Source-specific Requirements—Volume 2, Part 1.”
(E) Materials in Notebook “40 CFR 52.2020(d)(1)—Source-specific Requirements—Volume 2, Part 2.”
(F) Materials in Notebook “40 CFR 52.2020(d)(1)—Source-specific Requirements—Volume 3.”
(G) Materials in Notebook “40 CFR 52.2020(d)(1)—Source-specific Requirements—Volume 4.”
(H) Materials in Notebook “40 CFR 52.2020(d)(1)—Source-specific Requirements—Volume 5.”
(I) Materials in Notebook “40 CFR 52.2020(d)(2)–(d)(4)—Source-specific Requirements.”
(iii) EPA Region III certifies that the materials in Notebook “40 CFR 52.2020(d)(1)—Source-specific Requirements—Volume 6” provided by EPA at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated State source-specific requirements which have been approved as part of the State implementation plan as of November 1, 2008. No additional revisions were made between November 1, 2008 and April 1, 2013.
(3) Copies of the materials incorporated by reference may be inspected at the EPA Region III Office at 1650 Arch Street, Philadelphia, PA 19103. For further information, call (215) 814–2108; the EPA, Air and Radiation Docket and Information Center, Room Number 3334, EPA West Building, 1301 Constitution Avenue NW., Washington, DC 20460. For further information, call (202) 566–1742; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
(c) EPA-approved regulations.
EPA-Approved Regulations and Statutes
(c)(1) * * *
(2)
(3) * * *
(d) EPA-Approved State Source-Specific Requirements
Environmental Protection Agency (EPA).
Final rule.
EPA is approving revisions to the Wisconsin State Implementation Plan (SIP) submitted by the Wisconsin Department of Natural Resources (WDNR) on April 23, 2008. WDNR submitted revisions exempting certain sources of air pollution from construction permit requirements. EPA is approving these revisions because they are consistent with Federal regulations governing state permit programs.
This final rule is effective on September 3, 2013.
EPA has established a docket for this action under Docket ID No. EPA–R05–OAR–2008–0402. All documents in the docket are listed on the
Andrea Morgan, Environmental Engineer, Air Permits Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353–6058,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
On May 15, 2013, at 78 FR 28547, EPA proposed to approve a SIP revision from Wisconsin exempting certain sources of air pollution from the requirement to obtain a construction permit. Sources with actual emissions of under 10 tons per year (tpy) of each criteria pollutant, particulate matter of 10 micrometers or less, sulfur dioxide, nitrogen oxides, carbon monoxide and volatile organic compounds, and less than 0.5 tpy of lead, and that are not subject to Federal air pollution requirements for hazardous air pollutants under section 111 or 112 of the Clean Air Act (Act) will be eligible for the exemption. The revisions will also exempt construction or modification projects that emit less than 1,666 pounds of criteria pollutants per month, averaged over a 12 consecutive month period, and less than 10 pounds of lead per month, averaged over a 12 consecutive month period from construction permitting requirements. EPA believes that the revisions to Wisconsin's SIP meet Federal requirements and will not interfere with attainment or reasonable further progress. As set forth in the proposed rule, this SIP revision satisfies the anti-backsliding provisions of section 110(l) of the Act.
EPA provided a 30-day review and comment period. The comment period closed on June 14, 2013. EPA received one comment supporting EPA's approval of these revisions. EPA received no adverse comments.
EPA is approving Wisconsin's April 23, 2008, SIP submittal and March 25, 2013 supplement to the submittal. Specifically, EPA is approving the following revisions to WDNR's SIP: (1) Renumber and create NR 406.02(1) and 406.04(4)(h); (2) create NR 406.04(1)(zh), NR 406.04(1q), NR 406.04(4)(i), NR 407.03(1m), and NR 410.03(1)(f); and (3) amend NR 410.03(1)(d). Wisconsin's submittal originally contained revisions to NR 407, which pertain to operation permit requirements. However, in the March 25, 2013, supplement to the submittal, Wisconsin withdrew the NR 407 revisions from the submittal.
Under the Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
(127) On April 23, 2008 and March 25, 2013, the Wisconsin Department of Natural Resources submitted a request to revise Wisconsin's air permitting program to exempt certain small sources of air pollution from construction permitting requirements.
(i) Incorporation by reference.
(A) Wisconsin Administrative Code, NR 406.02 Definitions. NR 406.02(1) “Clean fuel”, and NR 406.02(1m) “Facility”, as published in the Wisconsin Administrative Register May 2007, No. 617, effective June 01, 2007.
(B) Wisconsin Administrative Code, NR 406.04 Direct sources exempt from construction permit requirements. NR 406.04(1)(zh), NR 406.04(1q), NR 406.04(4)(h), NR 406.04(4)(i), and NR 406.04(4)(j), as published in the Wisconsin Administrative Register May 2007, No. 617, effective June 01, 2007.
(C) Wisconsin Administrative Code, NR 410.03 Application fee. NR 410.03(1)(d), and NR 410.03(1)(f), as published in the Wisconsin Administrative Register May 2007, No. 617, effective June 1, 2007.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action approving a State Implementation Plan (SIP) revision submitted by the State of Colorado. On March 31, 2010, the Governor of Colorado's designee submitted to EPA a Clean Air Act (CAA) section 175A(b) second 10-year maintenance plan for the Colorado Springs area for the carbon monoxide (CO) National Ambient Air Quality Standard (NAAQS). This limited maintenance plan (LMP) addresses maintenance of the CO NAAQS for a second 10-year period beyond the original redesignation. This action is being taken under sections 110 and 175A of the CAA.
This rule is effective on September 30, 2013 without further notice, unless EPA receives adverse comment by September 3, 2013. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA–R08–OAR–2011–0659, by one of the following methods:
•
•
•
•
•
Adam Clark, Air Program, EPA, Region 8, Mailcode 8P–AR, 1595 Wynkoop, Denver, Colorado 80202–1129, (303) 312–7104,
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The words or initials
(ii) The words
(iii) The initials
(iv) The words
1.
2.
a. Identify the rulemaking by docket number and other identifying information (subject heading,
b. 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.
c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
d. Describe any assumptions and provide any technical information and/or data that you used.
e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
f. Provide specific examples to illustrate your concerns, and suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline identified.
Under the CAA Amendments of 1990, the Colorado Springs area was designated as nonattainment and classified as a “moderate” CO area, with a design value of less than or equal to 12.7 parts per million (ppm) (56 FR 56694, November 6, 1991). On August 19, 1998, the Governor of Colorado submitted to EPA a request to redesignate the Colorado Springs CO nonattainment area to attainment for the CO NAAQS. Along with this request, the Governor submitted a CAA section 175A(a) maintenance plan which demonstrated that the area would maintain the CO NAAQS for the first 10 years following EPA's approval of the redesignation request. On October 1, 1998, the Governor submitted revisions to Colorado Air Quality Control Commission (AQCC) Regulation No. 13, “Oxygenated Fuels Program.” EPA approved the State's redesignation request, the CAA section 175A(a) 10-year maintenance plan, and the revisions to AQCC Regulation No. 13 on August 25, 1999 (64 FR 46279).
On May 10, 2000, the Governor of Colorado submitted a revised Colorado Springs CO maintenance plan to EPA which changed the attainment year from 1993 to 1990, provided a revised projected emissions inventory out to 2010, and demonstrated maintenance of the CO NAAQS in the Colorado Springs area through 2010. The Governor also submitted a transportation conformity motor vehicle emission budget (MVEB) for 2010, and revisions to AQCC Regulation No. 13, “Oxygenated Fuels Program,” which allowed for the removal of the oxygenated fuels program in Colorado Springs. We approved all of these changes into the SIP on December 22, 2000 (65 FR 80779).
On April 12, 2004, the Governor of Colorado submitted to us a revised maintenance plan which demonstrated maintenance of the CO NAAQS in the Colorado Springs area through 2015 and revised the 2010 transportation conformity MVEB. The Governor also submitted revisions to AQCC Regulation No. 11, “Motor Vehicle Emissions Inspection Program,” which allowed for the removal of the basic inspection/maintenance program in El Paso County, including the Colorado Springs area. We approved all of these changes into the SIP on September 7, 2004 (see 69 FR 54019).
Eight years after an area is redesignated to attainment, CAA section 175A(b) requires the state to submit a subsequent maintenance plan to EPA, covering a second 10-year period.
The 8-hour CO NAAQS—9.0 ppm—is attained when such value is not exceeded more than once a year. 40 CFR 50.8(a)(1). The Colorado Springs area has attained the 8-hour CO NAAQS from 1990 to the present.
Section 110(a)(2) of the CAA requires that a state provide reasonable notice and public hearing before adopting a SIP revision and submitting it to us.
The AQCC held a public hearing for the revised Colorado Springs Maintenance Plan on December 17, 2009. The AQCC adopted the revised Colorado Springs Maintenance Plan directly after the hearing. The Governor's designee submitted the revised plan to EPA on March 31, 2010.
We have evaluated the SIP revision and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. On September 30, 2010, by operation of law under CAA section 110(k)(1)(B), the SIP revision was deemed to have met the minimum “completeness” criteria found in 40 CFR part 51, appendix V.
The following are the key elements of a LMP for CO: Emission Inventory, Maintenance Demonstration, Monitoring Network/Verification of Continued Attainment, Contingency Plan, and Conformity Determinations. Below, we describe our evaluation of each of these elements for the revised Colorado Springs Maintenance Plan.
The revised Colorado Springs CO Maintenance Plan contains an emission inventory for the base year 2007. The emission inventory is a list, by source category, of the air contaminants directly emitted into the Colorado Springs CO maintenance area on a typical winter day in 2007.
EPA considers the maintenance demonstration requirement to be satisfied for areas that qualify for and are using the LMP option. As mentioned above, a maintenance area is qualified to use the LMP option if that area's maximum 8-hour CO design value for eight consecutive quarters does not exceed 7.65 ppm (85% of the CO NAAQS). EPA maintains that if an area begins the maintenance period with a design value no greater than 7.65 ppm, the applicability of prevention of significant deterioration requirements, the control measures already in the SIP, and federal measures should provide adequate assurance of maintenance over the 10-year maintenance period. Therefore, EPA does not require areas using the LMP option to project emissions over the maintenance period. Because CO design values in the Colorado Springs area are consistently well below the LMP threshold (See Table 1 below), the State has adequately demonstrated that the Colorado Springs area will maintain the CO NAAQS into the future.
In the revised Colorado Springs Maintenance Plan, the State commits to continuing operation of an air quality monitoring network in accordance with 40 CFR Part 58 to verify continued attainment of the CO NAAQS. The State also commits to conducting an annual review of the air quality surveillance system in accordance with 40 CFR 58.10. Additionally, the plan indicates that if measured mobile source parameters change significantly over time, the State will perform appropriate studies to determine whether additional and/or re-sited monitors are necessary. We are approving these commitments as satisfying the relevant requirements.
Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions to promptly correct any violation of the NAAQS that occurs after redesignation of an area. To meet this requirement, the State has indentified appropriate contingency measures along with a schedule for the development and implementation of such measures.
As stated in the revised Colorado Springs Maintenance Plan, the contingency measures will be triggered by a violation of the CO NAAQS. No more than 60 days after notification from the Colorado Air Pollution Control Division (APCD) that a violation of the CO NAAQS has occurred, the Pikes Peak Area Council of Governments (PPACG), in conjunction with the APCD, AQCC, and local governments will initiate a process to begin evaluating potential contingency measures. The PPACG will present recommendations within 120 days of notification, and the recommended contingency measures will be presented to the AQCC within 180 days of notification. The AQCC will then hold a public hearing to consider the
The potential contingency measures that are identified in the revised Colorado Springs CO maintenance plan include, but are not limited to: (1) A basic vehicle inspection and maintenance program, as such program existed in AQCC Regulation Number 11 before December 18, 2003; (2) a 2.7% oxygenated gasoline program, as such program existed in AQCC Regulation Number 13 before February 17, 2000; (3) re-establishing nonattainment new source review permitting for stationary sources; and (4) wood burning restrictions.
We find that the contingency measures provided in the revised Colorado Springs Maintenance Plan are sufficient and meet the requirements of section 175A(d) of the CAA.
Transportation conformity is required by section 176(c) of the CAA. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS (CAA 176(c)(1)(B)). EPA's conformity rule at 40 CFR part 93 requires that transportation plans, programs and projects conform to SIPs and establish the criteria and procedures for determining whether or not they conform. To effectuate its purpose, the conformity rule requires a demonstration that emissions from the Regional Transportation Plan (RTP) and the Transportation Improvement Program (TIP) are consistent with the motor vehicle emissions budget (MVEB) contained in the control strategy SIP revision or maintenance plan (40 CFR 93.101, 93.118, and 93.124). A MVEB is defined as the level of mobile source emissions of a pollutant relied upon in the attainment or maintenance demonstration to attain or maintain compliance with the NAAQS in the nonattainment or maintenance area.
Under the LMP guidance, emissions budgets generally are treated as not constraining for the length of the maintenance period. While EPA's LMP guidance does not exempt an area from the need to affirm conformity, it explains that the area may demonstrate conformity without submitting a MVEB. According to the LMP guidance, it is unreasonable to expect that an LMP area will experience so much growth in that period that a violation of the CO NAAQS would result.
The CO maintenance plan for Colorado Springs that we approved in 2004 (69 FR 54019) contains MVEBs applicable only through 2010. As 2010 is no longer within the timeframe of the transportation plan, there is no longer a need to demonstrate conformity with the 2010 MVEB for the Colorado Springs CO maintenance area. For the reasons described in our LMP guidance, all actions that would require conformity determinations for the Colorado Springs CO maintenance area under our conformity rule provisions are considered to have already satisfied the regional emissions analysis and “budget test” requirements in 40 CFR 93.118 because of our approval of the Colorado Springs CO LMP.
However, since LMP areas are still maintenance areas, certain aspects of transportation conformity determinations still will be required for transportation plans, programs and projects. Specifically, for such determinations, RTPs, TIPs and transportation projects still will have to demonstrate that they are fiscally constrained (40 CFR 93.108) and meet the criteria for consultation and Transportation Control Measure (TCM) implementation in the conformity rule provisions (40 CFR 93.112 and 40 CFR 93.113, respectively). In addition, projects in LMP areas still will be required to meet the applicable criteria for CO hot spot analyses to satisfy “project level” conformity determinations (40 CFR 93.116 and 40 CFR 93.123), which must also incorporate the latest planning assumptions and models available (40 CFR 93.110 and 40 CFR 93.111, respectively).
Our approval of the revised Colorado Springs Maintenance Plan affects future CO RTP and TIP conformity determinations prepared by PPACG, the Colorado Department of Transportation, the Federal Highway Administration, and the Federal Transit Administration.
We are approving the revised Colorado Springs Maintenance Plan submitted on March 31, 2010. This maintenance plan meets the applicable CAA requirements, and we have determined it is sufficient to provide for maintenance of the CO NAAQS over the course of the second 10-year maintenance period out to 2020.
We are publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the Proposed Rules section of today's
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, and Reporting and recordkeeping requirements.
42 U.S.C. 7401
40 CFR part 52 is amended to read as follows:
42 U.S.C. 7401 et seq.
(o) Revisions to the Colorado State Implementation Plan, revised Carbon Monoxide Maintenance Plan for Colorado Springs, as adopted by the Colorado Air Quality Control Commission on December 17, 2009 and submitted by the Governor's designee on March 31, 2010.
Bureau of Land Management, Interior.
Final rule.
This final rule amends the regulations pertaining to execution and filing of forms in order to reflect the new address of the New Mexico/Oklahoma/Texas/Kansas State Office of the Bureau of Land Management (BLM). All filings and other documents relating to public lands in the States of New Mexico, Oklahoma, Texas, and Kansas must be filed at the new address of the State Office.
This rule is effective August 1, 2013.
You may send inquiries or suggestions to the Chief, Office of Communications (912), Bureau of Land Management, P.O. Box 27115, Santa Fe, NM 87502–0115.
Donna Hummel, 505–954–2018. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339, 24 hours a day, 7 days a week, to leave a message for Ms. Hummel.
This final rule reflects the administrative action of changing the street address of the New Mexico/Oklahoma/Texas/Kansas State Office of the BLM. Both the postal mailing address (P.O. Box 27115, Santa Fe, NM 87502–0115) and the phone number (505–954–2000) remain the same. This rule changes the street address for the personal filing of documents relating to public lands in New Mexico, Oklahoma, Texas, and Kansas, but makes no other changes in filing requirements. The BLM has determined that the rule has no substantive impact on the public, imposes no costs, and merely updates a list of addresses included in the Code of Federal Regulations for the convenience of the public. The Department of the Interior, therefore, for good cause finds that under 5 U.S.C. 553(b)(B) and 553(d)(3) notice and public comment procedures are unnecessary and that the rule may take effect immediately.
This final rule is an administrative action to change the address for one BLM State Office. This rule was not subject to review by the Office of Management and Budget under Executive Order 12866. The rule imposes no costs, and merely updates a list of addresses included in the Code of Federal Regulations for the convenience of the public.
The BLM has found that the final rule is of a procedural nature and thus is categorically excluded from environmental review under Section 102(2)(C) of the Environmental Protection Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C), pursuant to 43 CFR 46.210(i). In addition, the final rule does not present any of the 12 extraordinary circumstances listed at 43 CFR 46.215. Pursuant to the Council on Environmental Quality regulations (40 CFR 1508.4) and the environmental regulations, policies, and procedures of the Department of the Interior, the term “categorical exclusions” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and that have been found to have no such effect in procedures adopted by a Federal agency and for which neither an environmental assessment nor an environmental impact statement is required.
Congress enacted the Regulatory Flexibility Act of 1980 (5 U.S.C. 601,
This final rule is a purely administrative regulatory action having no effects upon the public or the economy. This is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). The rule will not have an annual effect on the economy of $100 million or more. The rule will not cause a major increase in costs of prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The rule will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to complete with foreign-based enterprises.
The BLM has determined that this final rule is not significant under the Unfunded Mandates Reform Act of 1995 because the rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Further, the final rule will not significantly or uniquely affect small governments. It does not require action by any non-Federal government entity. Therefore, the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
As required by Executive Order 12630, the Department of the Interior has determined that the rule would not cause a taking of private property. No private property rights would be affected by a rule that merely reports an address change for the New Mexico/Oklahoma/Texas/Kansas State Office. The Department therefore certifies that this final rule does not represent a governmental action capable of interference with constitutionally protected property rights.
In accordance with Executive Order 13132, the BLM finds that the rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. The final rule does not have substantial direct effects on the States, on the relationship between the national governments and the States, or the distribution of power and the responsibilities among the various levels of government. This final rule does not preempt State law.
This final rule is a purely administrative regulatory action having no effects upon the public and will not unduly burden the judicial system and meets the requirements of Sections 3(a) and 3(b)(2) of the Executive Order.
In accordance with the Executive Order 13175, the BLM finds that the rule does not include policies that have tribal implications. This final rule is purely an administrative action having no effects upon the public or the environment, imposing no costs, and merely updating the BLM, New Mexico/Oklahoma/Texas/Kansas State Office address included in the Code of Federal Regulations.
In accordance with Executive Order 13211, the BLM has determined that the final rule will not have substantial direct effects on the energy supply, distribution or use, including a shortfall in supply or price increase. This final rule is a purely administrative action and has no implications under Executive Order 13211.
The Paperwork Reduction Act does not apply because the rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Administrative practice and procedure, Archives and records, Public lands.
For the reasons discussed in the preamble, the Bureau of Land Management amends 43 CFR part 1820 as follows:
5 U.S.C. 552, 43 U.S.C. 2, 1201, 1733, and 1740.
(a) * * *
New Mexico State Office, 310 Dinosaur Trail, Santa Fe, NM 87508, P.O. Box 27115, Santa Fe, New Mexico 87502–0115—Kansas, New Mexico, Oklahoma, and Texas.
U.S. Small Business Administration.
Proposed rule.
This proposed rule would conform the regulations governing the Surety Bond Guarantee Program to certain provisions of the National Defense Authorization Act for Fiscal Year 2013 (NDAA), including the provisions that increase the contract amounts for which SBA is authorized to guarantee bonds, grant SBA the authority to partially deny liability under its bond guarantee, and prohibit SBA from denying liability based on material information that was provided as part of the guarantee application in the Prior Approval Program. In addition, changes are proposed with respect to the Quick Bond Guarantee Application and Agreement, the timeframes for taking certain actions related to claims, the dollar threshold for determining when a change in the Contract or bond amounts meets certain criteria or requires certain action, and the elimination of references to the provisions of the American Recovery and Reinvestment Act of 2009 (Recovery Act) that have expired.
Comments must be received on or before September 30, 2013.
You may submit comments, identified by RIN 3245–AG56, by any of the following methods:
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SBA will post all comments on
Barbara J. Brannan, Office of Surety Guarantees, 202–205–6545, email:
The U.S. Small Business Administration (SBA) guarantees bid, payment and performance bonds for small and emerging contractors who cannot obtain surety bonds through regular commercial channels. SBA's guarantee gives Sureties an incentive to provide bonding for small businesses and, thereby, assists small businesses in obtaining greater access to contracting opportunities. SBA's guarantee is an agreement between a Surety and SBA that SBA will assume a certain percentage of the Surety's loss should a contractor default on the underlying contract. This proposed rule would make the following changes to the program:
This proposed rule would conform the regulations governing the Surety Bond Guarantee Program to the following changes enacted by the National Defense Authorization Act for Fiscal Year 2013, Public Law 112–239, 126 Stat. 1632:
(1) Increasing the contract amount for which SBA is authorized to guarantee bonds from $2 million to $6.5 million (as adjusted for inflation in accordance with 41 U.S.C. 1908);
(2) increasing the contract amount for which SBA is authorized to guarantee bonds to $10 million with a Federal contracting officer's certification that the guarantee is necessary for the small business to obtain bonding;
(3) authorizing SBA to deny liability under its bond guarantee in whole or in part within its discretion; and
(4) prohibiting SBA from denying liability based on material information that was provided as part of the guarantee application in the Prior Approval Program.
The existing regulation, 13 CFR 115.13(a)(5), states that SBA will not guarantee bonds for Principals “who are primarily brokers or who have effectively transferred control over the project to one or more subcontractors.” Surety companies and agents have questioned the meaning of the phrase “effectively transferred control over the project”, and SBA agrees that clearer guidance is needed to determine when the use of subcontractors becomes objectionable. SBA recognizes that many small general contractors may subcontract a high percentage of the work under a contract, and this is not necessarily objectionable. However, SBA does not want the subcontracting to result in the Principal—the Person primarily liable to complete the Contract—losing control over the project. In the most egregious cases, the Principal may be acting as a front for the subcontractor. This objectionable activity may not be discernible solely from the percentage of work subcontracted on a project. Although that is often a good indicator, SBA believes that control is also a function of who has responsibility for overseeing and managing the work performed under the Contract. Accordingly, SBA is proposing to revise the second sentence of this provision to clarify that, to be eligible for a bond guaranteed by SBA, the Principal must retain full responsibility for the oversight and management of the Contract, including any work performed by any subcontractor, and may not subcontract the full scope of the statement of work.
The proposed rule would revise the regulations governing the Quick Bond Guarantee Application and Agreement. Under 13 CFR 115.30(d)(2)(ii)(C), the Quick Bond Application and Agreement (SBA Form 990A) may not be used for any contract that includes a warranty/maintenance period exceeding 12 months. However, the definition of Contract in 13 CFR 115.10 allows for the Contract to include a maintenance agreement of 2 years or less (for
In addition, under 13 CFR 115.30(d)(2)(ii)(D), SBA Form 990A may not be used if the contract includes a provision for liquidated damages that exceed $250 per day. The proposed rule would increase to $1,000 per day the amount of liquidated damages subject to the exclusion. SBA received suggestions from the surety industry for this increase, which is consistent with industry standards for a streamlined application process.
By making the above changes, the Agency hopes to encourage greater use of the Quick Bond Guarantee Application and Agreement.
The rule proposes to amend the following provisions to change the dollar threshold for determining when a change in the Contract or bond amounts may result in denial of liability or requires certain action. Currently, these provisions provide that the thresholds are met when the Contract or bond amount changes by 25% or $50,000, whichever is less. This formula means that the $50,000 threshold is always the lesser amount for contracts that are greater than $200,000, and the average amount of a Contract is now approximately twice this amount, or $400,000. In addition, for some of the provisions, the $50,000 threshold has not changed since 1989. Further, SBA would expect the average contract amount to increase with the recent increase in the maximum contract amount to $6.5 million. Thus, SBA is proposing to update the dollar threshold to $100,000 for the following provisions:
(1) Under 13 CFR 115.19(c)(1), SBA is relieved of liability if the Surety has committed a material breach of one or more terms or conditions of its agreement with SBA. A material breach is considered to have occurred if such breach (or such breaches in the aggregate) causes an increase in the Contract amount or in the bond amount of at least 25% or $50,000. The proposed rule would increase the dollar threshold to $100,000.
(2) Under 13 CFR 115.19(d), SBA is relieved of liability if the Surety has committed a substantial violation of SBA regulations, which is defined in part as a violation which causes an increase in the bond amount of at least 25% or $50,000 in the aggregate. The proposed rule would increase the dollar threshold to $100,000.
(3) Under 13 CFR 115.19(e)(2), SBA is relieved of liability if the Surety agrees to or acquiesces in any material alteration in the terms, conditions, or provisions of the bond. For a Prior Approval Surety, such alteration includes any increase in the bond amount of at least 25% or $50,000. The proposed rule would increase the dollar threshold to $100,000.
(4) Under 13 CFR 115.32(d), a Prior Approval Surety must notify SBA of any increases or decreases in the Contract or bond amount that aggregate 25% or $50,000 as soon as the Surety acquires knowledge of the change, and also must obtain SBA's prior written approval of an increase in the original bond amount as a result of a single change order of at least 25% or $50,000. The proposed rule would increase these dollar thresholds to $100,000.
(5) Under 13 CFR 115.67(a), a PSB Surety must pay the additional fees due from the Principal and the Surety on increases aggregating 25% of the contract or bond amount or $50,000. The proposed rule would increase the dollar threshold to $100,000.
With the wide-spread use of electronic processing of claims and payments, SBA believes that the timeframes for taking the following actions could be reduced:
(1) Under 13 CFR 115.17(b), the Surety is required to pursue all possible sources of salvage and recovery, and SBA is entitled to its guaranteed percentage of all salvage and recovery. Currently, 13 CFR 115.17(b)(2) requires the Surety to reimburse or credit SBA with its share within 90 days of receipt of any recovery by the Surety; the proposed rule would reduce this timeframe to 45 days. Similarly, the proposed rule would reduce the timeframe for the Surety to pay SBA its share of any settlement amount under 13 CFR 115.36(a)(3) from 90 days to 45 days.
(2) Under 13 CFR 115.35(c)(4) and 115.70(a), SBA pays its share of the loss to both the Prior Approval Surety and the PSB Surety within 90 days of receipt of the requisite information. The proposed rule would reduce this timeframe to 45 days.
In addition, under 13 CFR 115.35(c)(1) and 115.70(a), both the Prior Approval Surety and the PSB Surety must submit to SBA a claim for reimbursement for losses paid by the Surety within 1 year from the time of each disbursement. The proposed rule would reduce this timeframe to 90 days. This reduction would facilitate SBA's ability to review and verify the claim without unnecessary delay.
The Office of Management and Budget (OMB) has determined that this proposed rule does not constitute a significant regulatory action under Executive Order 12866.
This action meets applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.
For purposes of Executive Order 13132, SBA has determined that the rule will not have substantial, direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purpose of Executive Order 13132, Federalism, SBA determines that this proposed rule has no federalism
SBA has determined that this proposed rule imposes no additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., Chapter 35.
The Regulatory Flexibility Act (RFA) 5 U.S.C. 601, requires administrative agencies to consider the effect of their actions on small entities, small non-profit enterprises, and small local governments. Pursuant to the RFA, when an agency issues a rulemaking, the agency must prepare a regulatory flexibility analysis which describes the impact of the rule on small entities. However, section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. There are approximately one dozen Sureties that participate in the SBA program, and no part of this proposed rule would impose any significant additional cost or burden on them. Consequently, this rule does not meet the substantial number of small businesses criterion anticipated by the Regulatory Flexibility Act.
Claims, Reporting and recordkeeping requirements, Small businesses, Surety bonds.
For the reasons cited above, the Small Business Administration proposes to amend 13 CFR part 115 as follows:
5 U.S.C. app 3; 15 U.S.C. 687b, 687c, 694a, 694b note; and Pub. L. 110–246, Sec. 12079, 122 Stat. 1651.
(1) $6.5 million (as adjusted for inflation in accordance with 41 U.S.C. 1908);
(2) $10 million if a contracting officer of a Federal agency certifies, in accordance with section 115.12(e)(3), that such guarantee is necessary; or
(3) if SBA is guaranteeing the bond in connection with a procurement related to a major disaster pursuant to section 12079 of Public Law 110–246, see section 115.12(e)(4).
(e) Redesignate paragraph (e)(5) as paragraph (e)(4) and revise the heading and introductory paragraph as set forth below;
(f) In redesignated paragraph (e)(4), remove paragraph (B)(iii) and redesignate paragraph (B)(iv) as paragraph (B)(iii).
The additions and revisions read as follows:
(b)
(e) * * *
(3)
(4)
(a) * * *
(5) * * * SBA will not guarantee bonds for Principals who are primarily brokers. In addition, the Principal must retain full responsibility for the oversight and management of the Contract, including any work performed by any subcontractor, and may not subcontract the full scope of the statement of work.
In addition to equitable and legal defenses and remedies under contract law, the Act, and the regulations in this part, SBA is relieved of liability in whole or in part within its discretion if any of the circumstances in paragraphs (a) through (h) of this section exist, except that SBA shall not deny liability on Prior Approval bonds based solely upon material information that was provided as part of the guarantee application.
(d) * * * For example, if a contract amount increases to $6,800,000, SBA's share of the loss under an 80% guarantee is limited to 76.5% [6,500,000/6,800,000 = 95.6% × 80% = 76.5%].
(c)
(a)
(b)
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
We are revising an earlier proposed airworthiness directive (AD) for all The Boeing Company Model 767 airplanes. That NPRM proposed to require repetitive operational tests of the engine fuel suction feed of the fuel system, and other related testing if necessary. That NPRM was prompted by reports of two in-service occurrences on Model 737–400 airplanes of total loss of boost pump pressure of the fuel feed system, followed by loss of fuel system suction feed capability on one engine, and in-flight shutdown of the engine. This action revises that NPRM by proposing to revise the maintenance program to incorporate a revision to the Airworthiness Limitations Section of the maintenance planning data (MPD) document, and to remove airplanes from the applicability. We are proposing this supplemental NPRM to detect and correct failure of the engine fuel suction feed capability of the fuel system, which could result in dual engine flameout, inability to restart the engines, and consequent forced landing of the airplane. Since these actions impose an additional burden over that proposed in the previous NPRM, we are reopening the comment period to allow the public the chance to comment on these proposed changes.
We must receive comments on this supplemental NPRM by September 16, 2013.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5280; Internet
You may examine the AD docket on the Internet at
Sue Lucier, Aerospace Engineer, Propulsion Branch, ANM–140S, 1601 Lind Avenue SW., Renton, Washington 98057–3352; phone: 425–917–6438; fax: 425–917–6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We issued an NPRM to amend 14 CFR part 39 to include an AD that would apply to all The Boeing Company Model 767 airplanes. That NPRM published in the
Since we issued the previous NPRM (73 FR 32252, June 6, 2008), we have received comments from operators indicating a high level of difficulty performing the actions in the previous NPRM during maintenance operations. It is standard practice for operators to revise maintenance tasks to incorporate actions into their individual maintenance manuals as part of the maintenance program. Based on these comments, and a review of the previous NPRM, we determined a revision to the procedures was necessary. In conjunction with Boeing we developed an airworthiness limitation for the engine fuel suction feed system to address this issue.
We reviewed Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001–9, Revision October 2012 and Revision January 2013, of the Boeing 767 Maintenance Planning Data (MPD) Document. Among other things, Section 9 describes AWL No. 28–AWL–101, Engine Fuel Suction Feed Operational Test, of Section E., AWLS—Fuel Systems, which provides procedures for performing repetitive operational tests of the engine fuel suction feed of the fuel system.
We gave the public the opportunity to comment on the previous NPRM (73 FR 32252, June 6, 2008). The following presents the comments received on the previous NPRM and the FAA's response to each comment.
ABX Air asked that we withdraw the previous NPRM (73 FR 32252, June 6, 2008). ABX stated that there have been no incidents recorded in the NTSB or FAA databases for a Model 767 flameout due to the loss of fuel system suction feed capability. ABX added that it does not believe the subject unsafe condition is a critical safety concern.
We do not agree with the request to withdraw the previous NPRM (73 FR 32252, June 6, 2008), because, together with the manufacturer, we have evaluated this issue and determined it to be an important safety concern. Although the fuel system on Model 767 airplanes differs from the Model 737 with respect to the engine fuel feed system design, service data of transport category airplanes indicates that multi-engine flameouts have generally resulted from a common cause, such as fuel mismanagement, crew action that inadvertently shut off the fuel supply to the engines, exposure to common environmental conditions, or engine deterioration on all engines of the same type. Successful in-flight restart of the engines is dependent on adequate fuel being supplied to the engines, solely through engine fuel suction feed. Deterioration of the fuel plumbing system can lead to line (vacuum) losses, reducing the engine fuel suction feed capability; therefore, directed maintenance is necessary to ensure this system is functioning correctly in order to maintain continued safe flight of the airplane. We have not changed the supplemental NPRM in this regard.
ABX, Japan Airlines International (JAL), and Qantas Airways Ltd. asked that a CMR task be developed for incorporation into the maintenance program instead of issuing an NPRM (73 FR 32252, June 6, 2008). The commenters stated that the maintenance program is already in use by operators and the procedures are understood and followed. Qantas added that the task associated with this action will generate an administrative burden for operators, with no benefit.
We do not agree with the requests to develop a CMR task. CMRs are developed by the Certification Maintenance Coordination Committee (CMCC) during the type certification process. The CMCC is made up of manufacturer representatives (typically maintenance, design, and safety engineering personnel), operator representatives designated by the Industry Steering Committee chairperson, FAA Aircraft Certification Office specialists, and the Maintenance Review Board (MRB) chairperson. CMRs developed during this process become a part of the certification basis of the airplane upon issuance of the type certificate. We do not have a process for convening the CMCC outside of the type certification process; based on this, the CMR is not an option for replacing this AD. Therefore, if the airworthiness limitation items (ALIs) were not in the maintenance program at the time of initial certification, an AD is required to make the ALI task a required action. We have not changed the supplemental NPRM in this regard.
Air New Zealand (ANZ), ABX, Continental Airlines (CAL), and Boeing asked that we allow using later revisions of the referenced maintenance documents, because those documents could be revised over time and would require frequent requests for alternative methods of compliance (AMOCs).
We do not agree with the request. Allowing later revisions of service documents in an AD is not allowed by the Office of the Federal Register regulations for approving materials incorporated by reference. We have made no change to the supplemental NPRM in this regard.
Boeing asked that we clarify the reason for the unsafe condition identified in the previous NPRM (73 FR 32252, June 6, 2008). Boeing asked that the AD include the results from a report of in-service occurrences of loss of fuel system suction feed capability on one engine, due to two in-service engine flameout events on a Model 737–400 airplane while operating on suction feed with undetected air leak failures. Boeing stated that there are no known reports of any engine flameout related to events on Model 767 airplanes. Boeing acknowledged that undetected air leaks could exist and that this maintenance procedure is a proactive measure to ensure engine flameout will not occur during suction feed operation.
We agree to clarify the unsafe condition. We have revised the Summary section and paragraph (e) of this supplemental NPRM accordingly.
JAL, ANZ, and Boeing asked that we remove the airplane maintenance manual (AMM) reference to Section 28–22–00 specified in paragraph (f) of the previous NPRM (73 FR 32252, June 6, 2008). The commenters stated that the AMM is covered in Boeing 767 Task Card 28–020–02, and noted that having fewer references included lessens the chance of errors.
We acknowledge and agree with the commenters concerns regarding the maintenance documents referenced in the previous NPRM (73 FR 32253, June 6, 2008). However, these maintenance documents are not FAA-approved and we do not have the publication controls associated with AD-related service documents. We do not agree with the requested changes because we have decided to mandate an FAA-approved document which should eliminate these concerns. We changed paragraph (f) of the previous NPRM (paragraph (g) in this supplemental NPRM) to require revising the maintenance program to incorporate new procedures into the maintenance documents.
CAL and Air Canada asked that we extend the repetitive operational test interval specified in paragraph (f) of the previous NPRM (73 FR 32252, June 6, 2008).
CAL stated that a re-evaluation of the proposed repetitive interval limit after doing the initial inspection should be done, since CAL's service history has revealed no reported engine flameout events or related operational discrepancies. CAL asked that the repetitive interval be extended to a normal maintenance 2C-check or within 12,000 flight hours, whichever occurs first.
Air Canada asked that the repetitive interval be extended to a calendar time of 24 months. Air Canada does not understand the logic behind a repetitive frequency of 7,500 flight hours.
We do not agree with the requests that the repetitive intervals be extended. In developing an appropriate compliance time for the actions specified in paragraph (g) of this supplemental NPRM (paragraph (f) of the previous NPRM (73 FR 32252, June 6, 2008)), we considered the safety implications and normal maintenance schedules for the timely accomplishment of the specified actions. We have determined that the proposed compliance time will ensure an acceptable level of safety and allow the actions to be done during scheduled maintenance intervals for most affected operators. However, affected operators may request an AMOC to request an extension of the repetitive operational test interval under the provisions of paragraph (h) of this supplemental NPRM by submitting data substantiating that the change would provide an acceptable level of safety. We have not changed the supplemental NPRM in this regard.
JAL asked that we clarify that the engine fuel suction feed test procedure in the Boeing 767 Maintenance Planning Data (MPD) document is an option for performing the operational test in the previous NPRM (73 FR 32252, June 6, 2008). JAL asked that we consider adding the pressure leak check of the fuel lines and fittings procedure as an alternative procedure to performing the operational test specified in Section 28–22–00 of the Boeing 767 Aircraft Maintenance Manual (AMM).
We agree to provide clarification. The pressure leak check is not equivalent to the operational test (Task 28–22–00–710–802) since certain fuel line seal details may function normally under positive pressure, but fail to hold in-line vacuum when under fuel suction feed. Additionally, a fuel suction feed test would be required after reconnecting the fuel line to the manifold to verify final system integrity. Therefore, we have not changed the supplemental NPRM in this regard.
CAL suggested that the Boeing service manuals include a critical design configuration control limitation (CDCCL) warning identification statement to alert maintenance personnel of the importance of regulatory compliance, as well as the configuration control requirement. CAL did not include any justification for this request.
We agree that a CDCCL warning statement would serve as direct communication to maintenance personnel that there is an AD associated with certain maintenance actions. New service information has been added to this supplemental NPRM since issuance of the previous NPRM (73 FR 32252, June 6, 2008), which should eliminate the commenter's concern. The airplane maintenance manual will be a “referred to” document within the AWL task, which gives operators flexibility in developing maintenance programs based on equivalent procedures. We have made no change to the supplemental NPRM in this regard.
CAL asked that the related testing language specified in paragraph (f) of the previous NPRM (73 FR 32252, June 6, 2008) be changed. CAL stated that the language should specify correcting discrepancies before further flight if the engine fails the operational test. CAL added that the corrective actions should be done in accordance with the procedures in the “Right (Left) Engine Fails the Suction Feed Test” procedure in the Boeing 767 Fault Isolation Manual (FIM) 28–22–00/101.
We acknowledge and agree with the commenters concern. However, as stated previously, we are issuing this supplemental NPRM to revise the maintenance program to incorporate a revision to the Airworthiness Limitations Section of the MPD document to include the “Engine Fuel Suction Feed Operational Test” procedure. Therefore, the language identified by the commenter has been removed from this supplemental NPRM. We have made no change to the supplemental NPRM in this regard.
We are proposing this supplemental NPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. Certain changes described above expand the scope of the previous NPRM (73 FR 32252, June 6, 2008). As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this supplemental NPRM.
This supplemental NPRM revises the previous NPRM (73 FR 32252, June 6, 2008) by proposing to remove the actions in paragraph (f) of the previous NPRM and replace with a revision to the maintenance program to incorporate procedures for the Engine Fuel Suction Feed Operational Test Airworthiness Limitations Section of the MPD document, and to remove airplanes from the applicability.
This AD requires revisions to certain operator maintenance documents to include new actions (e.g., inspections) and/or CDCCLs. Compliance with these actions and/or CDCCLs is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this
We estimate that this proposed AD affects 406 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by September 16, 2013.
None.
This AD applies to The Boeing Company Model 767–200, –300, –300F, and –400ER series airplanes, certificated in any category, that have received a certificate of airworthiness or foreign export before November 2, 2012.
November 2, 2012, is the original publication date of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001–9, Revision October 2012, of the Boeing 767 Maintenance Planning Data (MPD) Document, or Revision January 2013 of the Boeing 767 Maintenance Planning Data (MPD) Document; including Airworthiness Limitations (AWLS)—Fuel Systems of Airworthiness Limitation (AWL) No. 28–AWL–101, Engine Fuel Suction Feed Operational Test.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 2800, Aircraft Fuel System.
This AD results from reports of two in-service occurrences on Model 737–400 airplanes of total loss of boost pump pressure of the fuel feed system, followed by loss of fuel system suction feed capability on one engine, and in-flight shutdown of the engine. We are issuing this AD to detect and correct failure of the engine fuel suction feed capability of the fuel system, which could result in dual engine flameout, inability to restart the engines, and consequent forced landing of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD: Revise the maintenance program to incorporate AWL No. 28–AWL–101, Engine Fuel Suction Feed Operational Test, of Section E., AWLS—Fuel Systems of Section 9, AWLs and CMRs, D622T001–9, Revision October 2012 or Revision January 2013, of the Boeing 767 MPD Document.
After accomplishing the revision required by paragraph (g) of this AD, no alternative actions (e.g., tests), intervals, or CDCCLs may be used unless the actions, intervals, or CDCCLs are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (i) of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager
(1) For more information about this AD, contact Sue Lucier, Aerospace Engineer, Propulsion Branch, ANM–140S, 1601 Lind Avenue SW., Renton, Washington 98057–3352; phone: 425–917–6438; fax: 425–917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5280; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Airbus Model A300 B4–600 and A300 B4–600R series airplanes. This proposed AD was prompted by reports of cracks found in the bottom wing skin stringers at rib 14 during full-scale fatigue testing and in service. This proposed AD would require modifying the profile of stringer run-outs at rib 14 of both wings, including a high frequency eddy current inspection of the fastener holes for defects and repair if necessary. We are proposing this AD to prevent cracking in the bottom wing skin stringers, which could result in reduced structural integrity of the wings.
We must receive comments on this proposed AD by September 16, 2013.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone (425) 227–2125; fax (425) 227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2013–0008R1, dated January 22, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
During full-scale fatigue testing, cracks were detected in the bottom wing skin stringers at rib 14. In addition, A300 aeroplane operators have also reported finding cracks in the same area.
This condition, if not detected and corrected, could impair the structural integrity of the wings.
Additional analysis results showed that the improved design of the stringer run-out is necessary for aeroplanes operating beyond the ESG 1 [extended service goal 1: 42,500 flight cycles].
For the reasons described above, this [EASA] AD requires the removal of the stringer end run-out plate at stringer 19 on the bottom wing skin and the re-profiling modification of the stringers 10, 11, 12, 17 and 19.
The modification also includes doing a high frequency eddy current inspection of the fastener holes for defects and repair if necessary. You may obtain further information by examining the MCAI in the AD docket.
Airbus has issued Mandatory Service Bulletin A300–57–6046, Revision 01, dated April 18, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe
Although Airbus Mandatory Service Bulletin A300–57–6046, Revision 01, dated April 18, 2011, specifies to contact the manufacturer for instructions to repair certain conditions, this proposed AD would require repairing those conditions using a method approved by either the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the EASA (or its delegated agent).
We estimate that this proposed AD affects 29 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for any on-condition actions specified in this proposed AD. We have no way of determining the number of aircraft that might need this repair.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed 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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by September 16, 2013.
None.
This AD applies to Airbus Model A300 B4–601, B4–603, B4–620, and B4–622 airplanes; and Airbus Model A300 B4–605R and B4–622R airplanes; certificated in any category, except airplanes on which Airbus Modification 10324 or 10325 has been embodied in production.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports of cracks found in the bottom wing skin stringers at rib 14 during full-scale fatigue testing and in service. We are issuing this AD to prevent cracking in the bottom wing skin stringers, which could result in reduced structural integrity of the wings.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Before the accumulation of 42,500 total flight cycles, or within 2,000 flight cycles after the effective date of this AD, whichever occurs later, modify the profile of stringer run-outs at rib 14 of both wings, including a high frequency eddy current inspection of the fastener holes for defects and all applicable repairs, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300–57–6046, Revision 01, dated April 18, 2011, except as required by paragraph (h) of this AD.
Where Airbus Mandatory Service Bulletin A300–57–6046, Revision 01, dated April 18, 2011, specifies to report defects to Airbus, this AD requires contacting the Manager, ANM–116, International Branch, Transport Airplane Directorate, FAA, or the European Aviation Safety Agency (EASA) (or its delegated agent) for repair instructions and doing those repairs before further flight.
This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A300–57–6046, dated January 18, 1994 (which is not incorporated by reference).
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) European Aviation Safety Agency (EASA) Airworthiness Directive 2013–0008R1, dated January 22, 2013, for related information.
(2) For service information identified in this AD that is not incorporated by reference, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 727 airplanes. This proposed AD was prompted by reports indicating that a standard fuel tank access door was located where an impact-resistant access door was required, and stencils were missing from some impact-resistant access doors. This proposed AD would require an inspection of the left- and right-hand wing fuel tank access doors to determine that impact-resistant access doors are installed in the correct locations, and to replace any door with an impact-resistant access door if necessary. This proposed AD also would require an inspection for stencils and index markers on impact-resistant access doors, and application of new stencils or index markers if necessary. This proposed AD would also require revising the maintenance program to incorporate changes to the airworthiness limitations section. We are proposing this AD to prevent foreign object penetration of the fuel tank, which could cause a fuel leak near an ignition source (e.g., hot brakes), consequently leading to a fuel-fed fire.
We must receive comments on this proposed AD by September 16, 2013.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Suzanne Lucier, Aerospace Engineer, Propulsion Branch, ANM–140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6438; fax: 425–917–6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received reports of a standard fuel tank access door located where an impact-resistant access door is required, and stencils missing from some spare impact-resistant access doors. This condition, if not corrected, could result in foreign object penetration of the fuel tank, which could cause a fuel leak near an ignition source (e.g., hot brakes), consequently leading to a fuel-fed fire.
We reviewed Boeing Service Bulletin 727–28–0134, dated January 12, 2012; and Critical Design Configuration Control Limitation (CDCCL) Task 57–AWL–01, “Impact-Resistant Fuel Tank Access Door,” of Section 1, Airworthiness Limitations (AWLs) of Boeing 727–100/200 Airworthiness Limitations (AWLs) Document D6–
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition identified previously is likely to exist or develop in other products of these same type designs.
The FAA issued section 121.316 of the Federal Aviation Regulations (14 CFR 121.316) requiring that each turbine powered transport category airplane meet the requirements of section 25.963(e) of the Federal Aviation Regulations (14 CFR 25.963(e)). Section 25.963(e) outlines the certification requirements for fuel tank access covers on turbine powered transport category airplanes.
This proposed AD would require inspecting fuel tank access doors to determine that impact-resistant access doors are installed in the correct locations and replacing any door with an impact-resistant access door if necessary; inspecting application of stencils and index markers of impact-resistant access doors and application of new stencils or index markers if necessary; and revising the maintenance program.
This proposed AD requires revisions to certain operator maintenance documents to include a new CDCCL. Compliance with CDCCLs is required by section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator might not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance (AMOC) according to the procedures specified in paragraph (j) of this proposed AD. The request should include a description of changes to the required actions that will ensure the continued damage tolerance of the affected structure.
After accomplishing the revision required by paragraph (h) of this AD, no alternative actions (e.g., inspections), intervals, and/or CDCCLs may be used unless the actions, intervals, and/or CDCCLs are approved as an AMOC in accordance with the procedures specified in paragraph (j) of this AD.
We estimate that this proposed AD affects 139 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by September 16, 2013.
None.
This AD applies to all The Boeing Company Model 727, 727C, 727–100, 727 –100C, 727–200, and 727–200F series airplanes; certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 28, Fuel.
This AD was prompted by reports indicating that a standard fuel tank access door was located where an impact-resistant access door was required, and stencils were missing from some impact-resistant access doors. We are issuing this AD to prevent foreign object penetration of the fuel tank, which could cause a fuel leak near an ignition source (e.g., hot brakes), consequently leading to a fuel-fed fire.
Comply with this AD within the compliance times specified, unless already done.
Within 72 months after the effective date of this AD, do the actions specified in paragraphs (g)(1) and (g)(2) of this AD, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 727–28–0134, dated January 12, 2012.
(1) Do either a general visual inspection or ultrasonic non-destructive test of the left- and right-hand wing fuel tank access doors to determine whether impact-resistant access doors are installed in the correct locations. If any standard access door is found, before further flight, replace with an impact-resistant access door, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 727–28–0134, dated January 12, 2012.
(2) Do a general visual inspection of the left- and right-hand wing fuel tank impact-resistant access doors to verify stencils and index markers are applied. If a stencil or index marker is missing, before further flight, apply stencil or index marker, as applicable, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 727–28–0134, dated January 12, 2012.
Within 60 days after the effective date of this AD, revise the maintenance program to incorporate Critical Design Configuration Control Limitation (CDCCL) Task 57–AWL–01, “Impact-Resistant Fuel Tank Access Door,” of Section 1, Airworthiness Limitations (AWLs) of Boeing 727–100/200 Airworthiness Limitations (AWLs) Document D6–8766–AWL, Revision September 2012.
After accomplishing the revision required by paragraph (h) of this AD, no alternative CDCCLs may be used unless the CDCCLs are approved as an alternative method of compliance in accordance with the procedures specified in paragraph (j) of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Suzanne Lucier, Aerospace Engineer, Propulsion Branch, ANM–140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6438; fax: 425–917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 747–400 airplanes. This proposed AD was prompted by reports of fasteners missing on an airplane undergoing a passenger-to-freighter conversion. This proposed AD would require doing a general visual inspection of the station 1920 splice clip for correct fastener installation, and related investigative and corrective actions if necessary. We are proposing this AD to detect and correct missing or incorrect fasteners, which can lead to cracking and loss of load carrying capacity, resulting in a possible decompression event.
We must receive comments on this proposed AD by September 16, 2013.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Bill Ashforth, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6432; fax: 425–917–6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received a report of an airplane, while undergoing a passenger-to-freighter conversion, missing fasteners on the station 1920 splice clip. The possibility of this discrepancy exists on airplanes already delivered. This condition, if not corrected, could result in cracking and loss of load carrying capacity, resulting in a possible decompression event.
We reviewed Boeing Alert Service Bulletin 747–53A2844, Revision 1, dated July 30, 2012. For information on the procedures and compliance times, see this service information at
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and the Service Information.”
The phrase “related investigative actions” might be used in this proposed AD. “Related investigative actions” are follow-on actions that: (1) Are related to the primary actions, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.
In addition, the phrase “corrective actions” might be used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
Although the service bulletin specifies that operators may contact the manufacturer for disposition of certain repair conditions, this proposed AD would require operators to repair those conditions in accordance with a method approved by the FAA.
We estimate that this proposed AD affects 3 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary repairs that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these repairs:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by September 16, 2013.
None.
This AD applies to The Boeing Company Model 747–400 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 747–53A2844, Revision 1, dated July 30, 2012.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by reports of fasteners missing on an airplane undergoing a passenger-to-freighter conversion. We are issuing this AD to detect and correct missing or incorrect fasteners, which can lead to cracking and loss of load carrying capacity, resulting in a possible decompression event.
Comply with this AD within the compliance times specified, unless already done.
Except as required by paragraph (h)(1) of this AD, at the times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747–53A2844, Revision 1, dated July 30, 2012: Do a general visual inspection for correct installation of the station 1920 splice clip common to the auxiliary sill web and the tie clip, and do all applicable related investigative and corrective actions in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747–53A2844, Revision 1, dated July 30, 2012, except as required by paragraph (h)(2) of this AD. Do all applicable related investigative and corrective actions before further flight.
(1) Where Boeing Alert Service Bulletin 747–53A2844, Revision 1, dated July 30, 2012, specifies a compliance time “after the original issue date of the service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(2) If any cracking is found during any inspection required by this AD, and Boeing Alert Service Bulletin 747–53A2844, Revision 1, dated July 30, 2012, specifies contacting Boeing for appropriate action: Before further flight, repair using a method approved in accordance with the procedures specified in paragraph (j) of this AD.
This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin 747–53A2844, dated September 15, 2011, except the detailed inspection for cracking of the auxiliary sill outer chord tee and attached parts and all applicable related investigative and corrective actions must be done in accordance with Boeing Alert Service Bulletin 747–53A2844, Revision 1, dated July 30, 2012, at the times specified in paragraph (g) of this AD. Boeing Alert Service Bulletin 747–53A2844, dated September 15, 2011, is not incorporated by reference in this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Bill Ashforth, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6432; fax: 425–917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Airbus Model A330–300 series airplanes and Model A340–200 and –300 series airplanes. This proposed AD was prompted by reports of corrosion found on certain trimmable horizontal stabilizer actuators (THSA), affecting the ballscrew lower splines between the tie bar and the screw-jack. This proposed AD would require repetitive detailed inspections for corrosion of certain THSAs, ballscrew integrity tests if necessary; and replacing any affected THSA with a serviceable or new and improved THSA, if necessary. We are proposing this AD to detect and correct corrosion of the THSAs, which could lead, in the case of ballscrew rupture, to the loss of transmission of THSA torque loads from the ballscrew to the tie-bar, prompting THSA blowback, and possibly resulting in loss of control of the airplane.
We must receive comments on this proposed AD by September 16, 2013.
You may send comments by any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: (202) 493–2251.
• Mail: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590.
• Hand Delivery: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For Airbus service information identified in this proposed AD, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone (425) 227–1138; fax (425) 227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2012–0061R1, dated November 30, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Some Trimmable Horizontal Stabilizer Actuators (THSA), Part Number (P/N) 47147–500, have been found with corrosion, affecting the ballscrew lower splines between the tie bar and the screw-jack.
The results of the technical investigations have identified that the corrosion was caused by a combination of:
The results of the technical investigations have also concluded that THSA P/N 47147–500 and P/N 47147–700 ballscrews might be affected by this corrosion issue.
THSA P/N 47147–400 ballscrews might be affected as well, but should no longer be in service, and modified into P/N 47147–500, as required by EASA AD 2010–0192 and EASA AD 2010–0193 [and as required by FAA AD 2005–07–04, Amendment 39–14028 (70 FR 16104, March 30, 2005)].
This condition, if not detected and corrected, may lead, in case of ballscrew rupture, to loss of transmission of THSA torque loads from the ballscrew to the tie-bar, prompting THSA blowback, possibly resulting in loss of control of the aeroplane.
To correct this potential unsafe condition, EASA issued AD 2012–0061 to require repetitive [detailed] visual inspections of the ballscrew lower splines of THSA having P/N 47147–500 or P/N 47147–700 to detect corrosion and, depending on findings [ballscrew integrity tests], the accomplishment of applicable corrective actions [replacing the affected THSA with a serviceable or improved THSA].
Since that [EASA] AD [2012–0061] was issued, Airbus published new Service Bulletin (SB) A330–27–3194 or Airbus SB A340–27–4187 (Airbus modification 202802), which allow installation in service of an improved THSA P/N 47172–530.
For the reasons described above, this [EASA] AD [2012–0061R1] is revised to specify that installation of THSA P/N 47172–
Airbus has issued the following service information.
• Airbus Mandatory Service Bulletin A330–27–3179, including Appendix 01, dated February 14, 2012.
• Airbus Service Bulletin A330–27–3182, dated February 14, 2012.
• Airbus Service Bulletin A330–27–3194, dated October 8, 2012.
• Airbus Mandatory Service Bulletin A340–27–4175, including Appendix 01, dated February 14, 2012.
• Airbus Service Bulletin A340–27–4178, dated February 14, 2012.
• Airbus Service Bulletin A340–27–4187, dated October 8, 2012.
Goodrich Actuation Systems has issued Service Bulletin 47147–27–18, dated February 17, 2012.
The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Based on the service information, we estimate that this proposed AD would affect about 30 products of U.S. registry. We also estimate that it would take about 6 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $15,300, or $510 per product.
In addition, we estimate that any necessary follow-on actions would take about 13 work-hours and require parts costing up to $722,556 for a cost of up to $723,661 per product. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed 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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by September 16, 2013.
None.
This AD applies to Airbus Model A330–301, –302, –303, –321, –322, –323, –341, –342, and –343 airplanes; and Model A340–211, –212, –213, –311, –312, and –313 airplanes; certificated in any category; all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 27, Flight controls.
This AD was prompted by reports of corrosion found on certain trimmable horizontal stabilizer actuators (THSA), affecting the ballscrew lower splines between the tie bar and the screw-jack. We are issuing this AD to detect and correct corrosion of the THSAs, which could lead, in the case of ballscrew rupture, to loss of transmission of THSA torque loads from the ballscrew to the tie-bar, prompting THSA blowback, and possibly resulting in loss of control of the airplane.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
At the applicable time specified in paragraph (g)(1) or (g)(2) of this AD, except as required by paragraphs (h)(1) and (h)(2) of this AD: Do a detailed inspection of the gaps between the screw shaft and tie rod teeth of any THSA having part numbers (P/N) 47147–500 and 47147–700, to determine if the corrosion condition is Type I, Type II, or Type III, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3179 (for Model A330–301, –302, –303, –321, –322, –323, –341, –342, and –343 airplanes); or A340–27–4175 (for Model A340–211, –212, –213, –311, –312, and –313 airplanes); both dated February 14, 2012; and the Accomplishment Instructions and flowchart following the Accomplishment Instructions of Goodrich Actuation Systems Service Bulletin 47147–27–18, dated February 17, 2012. Repeat the inspection thereafter at intervals not to exceed 24 months until the
(1) For any THSA, which, as of the effective date of this AD, has accumulated less than 156 months since first flight on an airplane as THSA P/N 47147–400 or since its first flight after modification has been done as specified in the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3052 or A340–27–4059: Do the inspection before the accumulation of 156 months but not before the accumulation of 132 months since first flight on an airplane as THSA P/N 47147–400 or since the THSA first flight after its modification was done as specified in the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3052 or A340–27–4059; or within 3 months after the effective date of this AD; whichever occurs later.
(2) For any THSA, which, as of the effective date of this AD, has accumulated 156 months or more since first flight on an airplane as THSA P/N 47147–400 or since the THSA first flight after modification has been done as specified in the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3052 or A340–27–4059: Do the inspection within 3 months after the effective date of this AD.
(1) Some THSAs having P/N 47147–500 (and further derivative with P/N 47147–700) were originally THSA P/N 47147–400 and were subsequently modified in service. In this case, the time accumulated by any THSA must be calculated from the first installation on airplanes as THSA P/N 47147–400.
(2) Some THSAs having P/N 47147–500 (and further derivative with P/N 47147–700) were originally THSA P/N 47147–200, –210, –213, –300, –303, or –350 and were subsequently modified in service as specified in the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3052 or A340–27–4059. In this case, the time accumulated by any THSA must be calculated from the first flight on an airplane after the THSA has been modified as specified in the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3052 or A340–27–4059.
If, during any inspection required by paragraph (g) of this AD, it is determined that a THSA has Type II or Type III corrosion, before further flight: Do a ballscrew integrity test, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3179 (for Model A330–301, –302, –303, –321, –322, –323, –341, –342, and –343 airplanes); or A340–27–4175 (for Model A340–211, –212, –213, –311, –312, and –313 airplanes); both dated February 14, 2012.
(1) For THSAs having Type II or Type III corrosion, and the results of the ballscrew integrity test were not correct, as specified in the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3179 (for Model A330–301, –302, –303, –321, –322, –323, –341, –342, and –343 airplanes); or A340–27–4175 (for Model A340–211, –212, –213, –311, –312, and –313 airplanes); both dated February 14, 2012: Before further flight, replace the affected THSA with a new or serviceable THSA, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3179 (for Model A330–301, –302, –303, –321, –322, –323, –341, –342, and –343 airplanes); or A340–27–4175 (for Model A340–211, –212, –213, –311, –312, and –313 airplanes); both dated February 14, 2012.
(2) For THSAs having Type III corrosion, and the results of the ballscrew integrity test are correct, as specified in the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3179 (for Model A330–301, –302, –303, –321, –322, –323, –341, –342, and –343 airplanes); or A340–27–4175 (for Model A340–211, –212, –213, –311, –312, and –313 airplanes); both dated February 14, 2012: Within 10 days after the most recent inspection, replace the THSA with a new or serviceable THSA, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3179 (for Model A330–301, –302, –303, –321, –322, –323, –341, –342, and –343 airplanes); or A340–27–4175 (for Model A340–211, –212, –213, –311, –312, and –313 airplanes); both dated February 14, 2012.
(3) For THSAs having Type II corrosion and the results of the ballscrew integrity test are correct: Within 24 months or 4,400 flight cycles after the most recent inspection, whichever occurs first, replace the THSA with a new or serviceable THSA, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3179 (for Model A330–301, –302, –303, –321, –322, –323, –341, –342, and –343 airplanes); or A340–27–4175 (for Model A340–211, –212, –213, –311, –312, and –313 airplanes); both dated February 14, 2012.
Replacement of a THSA with a THSA having P/N 47147–500 or 47147–700 does not constitute a terminating action for the repetitive inspections required by paragraph (g) of this AD.
(1) Replacing any THSA having P/N 47147–500 with a new improved THSA having P/N 47172–300 (Airbus modification 200238), in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330–27–3182 (for Model A330–301, –302, –303, –321, –322, –323, –341, –342, and –343 airplanes); or A340–27–4178 (for Model A340–211, –212, –213, –311, –312, and –313 airplanes); both dated February 14, 2012; terminates the repetitive inspections required by paragraph (g) of this AD.
(2) Replacing any THSA having P/N 47147–700 with a new improved THSA having P/N 47172–530 (Airbus modification 202802), in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330–27–3194 (for Model A330–301, –302, –303, –321, –322, –323, –341, –342, and –343 airplanes); or A340–27–4187 (for Model A340–211, –212, –213, –311, –312, and –313 airplanes); both dated October 8, 2012; terminates the repetitive inspections required by paragraph (g) of this AD.
As of the effective date of this AD, no person may install a THSA, P/N 47147–500 or P/N 47147–700, on any airplane, unless the THSA is classified as Type I (no corrosion), in accordance with the criteria defined in Goodrich Actuation Systems Service Bulletin 47147–27–18, dated February 17, 2012; and thereafter inspected in accordance with the requirements of paragraph (g) of this AD and any applicable actions required by paragraph (i) of this AD are accomplished.
Submit a report of the findings (both positive and negative) of the inspection required by paragraph (g) of this AD to Airbus, at the applicable time specified in paragraph (m)(1) or (m)(2) of this AD, using Appendix 01 of Airbus Mandatory Service Bulletins A330–27–3179 (for Model A330–301, –302, –303, –321, –322, –323, –341, –342, and –343 airplanes); or A340–27–4175 (for Model A340–211, –212, –213, –311, –312, and –313 airplanes); both dated February 14, 2012.
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 90 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 90 days after the effective date of this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2012–0061R1, dated November 30, 2012; and the service information identified in paragraphs (o)(1)(i) through (o)(1)(vii) of this AD; for related information.
(i) Airbus Mandatory Service Bulletin A330–27–3179, dated February 14, 2012.
(ii) Airbus Service Bulletin A330–27–3182, dated February 14, 2012.
(iii) Airbus Service Bulletin A330–27–3194, dated October 8, 2012.
(iv) Airbus Mandatory Service Bulletin A340–27–4175, dated February 14, 2012.
(v) Airbus Service Bulletin A340–27–4178, dated February 14, 2012.
(vi) Airbus Service Bulletin A340–27–4187, dated October 8, 2012.
(vii) Goodrich Actuation Systems Service Bulletin 47147–27–18, dated February 17, 2012.
(2) For Airbus service information identified in this AD, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
Federal Highway Administration (FHWA), DOT.
Notice of proposed rulemaking (NPRM); request for comments.
This NPRM provides interested parties with the opportunity to comment on proposed changes to the FHWA requirements related to the use of alternative technical concepts (ATC) in design-build project delivery of highway construction. The revisions are intended to eliminate the requirement to submit a base proposal when a contracting agency allows design-build proposers to submit ATCs in their technical and price proposals. The FHWA seeks comments on the proposals contained in this notice.
Comments must be received on or before September 30, 2013. Late comments will be considered to the extent practicable.
Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590, or fax comments to (202) 493–2251. Alternatively, comments may be submitted via the Federal eRulemaking Portal at
All comments should include the docket number that appears in the heading of this document. All comments received will be available for examination and copying at the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard or you may print the acknowledgment page that appears after submitting comments electronically. All comments received into any docket may be searched in electronic format by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). Persons making comments may review DOT's complete Privacy Act Statement in the
Mr. Gerald Yakowenko, Contract Administration Team Leader, Office of Program Administration, (202) 366–2221, or Mr. Michael Harkins, Office of the Chief Counsel, (202) 366–4928, Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours for the FHWA are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays.
You may submit or retrieve comments online through the Federal eRulemaking portal at:
An electronic copy of this document may also be downloaded from the Office of the Federal Register's home page at:
Over the past 20 years, contracting agencies have been gaining valuable experience with the design-build project delivery method for highway construction. In conjunction with this delivery method, some agencies have encouraged design-build proposers to submit ATCs as a way to encourage innovation, promote efficiency, reduce risk, accelerate project delivery schedules, and reduce project costs.
An ATC is a request by a proposer to modify a contract requirement, specifically for that proposer's use in the proposal process. The ATC must provide a solution that is equal or better to the requirements in the Request for Proposals (RFP) document. Proposers submit ATCs for the contracting agency's conceptual approval during the procurement process. The contracting agency may conduct confidential meetings with each proposer to review and discuss that proposer's ATCs. If the concept is approved by the contracting agency, the proposer may use the ATC in its technical and price proposal, thus providing the contracting agency with the potential for increased value at reduced costs.
The FHWA's current regulatory policy in 23 CFR Part 636 allows contracting agencies to use ATCs in their procurement process subject to two conditions: (1) The ATC must not
Thus the current policy allows proposers to submit proposals based on an approved ATC, but not as a substitute for the base proposal. The requirement for a base proposal and a supplemental ATC-based proposal was founded on the perception that this would allow for a fair comparison of proposals. In 2002, the FHWA believed that requiring every proposer to submit a base proposal would provide contracting agencies with quality and price information for each proposer for comparison purposes. In addition, contracting agencies could evaluate ATC-based proposals from firms desiring to submit innovative concepts. The underlying principle in existing policy is to ensure fairness and open competition by making certain that all proposers are competing for the same project.
Since 2002, the FHWA has authorized several Special Experimental Projects No. 14 (SEP–14) proposals involving 23 CFR 636.209(b). The SEP–14 Program permits States and the FHWA to evaluate promising non-traditional contracting techniques, which may otherwise deviate from established policy. The post-project evaluations received from agencies with SEP–14 authorization (which can be viewed at:
Under the authority of SEP–14, 23 CFR 636.209(b) project or program requirement waivers were requested and approved for the following contracting agencies:
• East End Crossing-Ohio River Bridge—the Indiana Finance Authority and the Indiana Department of Transportation;
• Gerald Desmond Bridge Replacement Project—the California Department of Transportation (Caltrans) and the city of Long Beach;
• I–10 widening—the Louisiana Department of Transportation and Development;
• I–15/I–215 Interchange Improvement Project—Caltrans;
• I–95—Contee Road Interchange, US 113, Intercounty Connector, and programmatic approval by Maryland State Highway Administration;
• Longfellow, Whittier, and Braga Bridges—the Massachusetts Department of Transportation;
• Louisville-Southern Indiana Ohio River Bridges Project—the Kentucky Transportation Cabinet;
• Programmatic approval by the Colorado High Performance Transportation Enterprise and the Colorado Department of Transportation;
• Programmatic approval by the Idaho Transportation Department;
• SR–91 Corridor Improvement Project—the Riverside County Transportation Commission;
• Tappan Zee Bridge—the New York State Thruway Authority and the New York State Department of Transportation;
• Programmatic approval by the Michigan Department of Transportation;
• Programmatic approval by the South Carolina Department of Transportation; and
• Programmatic approval by the Texas Department of Transportation.
Evaluations provided by these agencies concluded that the use of ATCs in the procurement process provides the following benefits:
• A strong potential for increased value at a lower cost by allowing contractors to provide innovative cost effective solutions in a competitive procurement process,
• increased competition and innovative approaches early in the design process, giving contracting agencies the opportunity to select proven design and construction solutions,
• consideration and use of innovative solutions through early contractor involvement,
• further innovation and competition fostered through confidential meetings with proposers and contracting agencies, which provided proposers with a degree of comfort that their concepts would be accepted, and
• increased use of advanced technology, new materials, and innovative construction methods.
The evaluation reports provided by various contracting agencies through the SEP–14 process have been very positive regarding the use and implementation benefits of ATCs for design-build project delivery.
In the April 19, 2010, SEP–14 evaluation of the I–10 widening project, the LaDOTD stated:
This ATC process gives the LaDOTD the ability to factor the proposers' technical solutions into the selection process and gives the LaDOTD access to solutions from all proposers. It also gives the successful proposer a head start on implementation of its ATCs, and avoids unnecessary costs for proposers to advance a base design that ultimately will not be used. . . . The opportunity to introduce innovative concepts resulted in greater competition among the proposers by allowing the LaDOTD to consider a broader spectrum of technical solutions for the Project. Overall, we feel that the ATC process utilized for the I–10 Widening Design-Build Project was a success.
The December 21, 2011, SEP–14 evaluation submitted by MDSHA for the I–95/Contee Road interchange project included the following findings:
The proposed ATC process gave the SHA the ability to factor each proposer's technical solutions into the selection process, allowing a true “Best-Value” selection and gave the SHA access to solutions from all proposers. It also gave the successful proposer a head start on implementation of its ATCs and avoided unnecessary costs and risks for proposers to advance a base design that may not [be] used.
As part of the ATC submittal and review process, the Proposer was required to provide details concerning how the ATC would impact vehicular traffic, environmental impacts (favorable or unfavorable) identified on appropriate environmental documents, community impacts, and safety and life-cycle project and infrastructure costs (including impacts on the cost of repair and maintenance). The ATC process, therefore, led to approved ATCs that minimized the impact on the environment, did not reduce the overall quality of the final product, and would provide the “Best-Value” for the contract.
The December 4, 2008, SEP–14 evaluation by the MDSHA for the Intercounty Connector Contracts A, B, and C stated:
Over the past three years and procurement of approximately $1.5 billion in design-build contracts, the Administration has received numerous benefits from using the ATC process. SHA believes that these compelling benefits included not only permitting
The 2011 Annual Report, titled “Alternate Technical Concepts in Design Build Contracting at WSDOT,” stated the following:
The ATC process, as practiced at WSDOT, is a valuable and effective tool that helps to further refine our design build projects and obtain the best value for taxpayers. It is well established and accepted by industry as evidenced by the level of participation during procurement. The experience documented in this report confirms this success by both statistical and anecdotal data. This ATC process provides another avenue for application of the competitive market influence to the design build procurement method within the bounds of the level playing field and to the benefit of our taxpayers. Additionally, this process makes use of the FHWA waiver authorization to avoid extra, duplicative efforts by our proposers and evaluation teams associated with the preparation and review of a second, unaltered proposal.
In consideration of the successful deployment of ATC by various contracting agencies, the FHWA is proposing to revise its requirements to eliminate the base proposal submittal requirement in 23 CFR 636.209(b). The use of ATCs is acceptable so long as the RFP document clearly describes the contracting agency's requirements for ATC content, submission, review procedures, confidential meetings procedures (if used), and how ATCs will be evaluated in the proposal review process.
The FHWA proposes to revise 23 CFR part 636—Design-Build Contracting as follows:
In relation to 23 CFR 636.209, the FHWA proposes to revise paragraph (b) to delete the submission requirement for base proposals, where a contracting agency is allowing the submission of ATC proposals. Contracting agencies may allow proposers to submit ATCs, as long as the RFP document clearly describes the contracting agency's requirements for ATC content, submission, review, confidential meeting procedures (if used), and how ATC will be evaluated in the proposal review process.
Additionally, a sentence is proposed to be added to paragraph (b) stating that the confidentiality of ATCs will be maintained, except to the extent disclosure is required in order for the contracting agency to maintain compliance with a Federal or State permit or other legal requirement necessary for the delivery of the project. Contracting agencies and design-build proposers need to be aware that, in certain instances, it may be necessary for the contracting agency to issue addenda to the RFP, to inform all proposers of a RFP revision that was prompted by another proposer's ATC submission. For instance, if an ATC submitted by a proposer demonstrates that a feasible and prudent 4(f) alternative exists on a project for which a 4(f) determination had already concluded that there was no feasible and prudent 4(f) alternative, the contracting agency and FHWA must disclose the alternative to maintain 4(f) compliance.
The FHWA has determined that this action would not be a significant regulatory action within the meaning of Executive Order 12866, or within the meaning of DOT's regulatory policies and procedures. After the consideration of alternatives and analysis of impacts, the FHWA anticipates that the economic impact of this rulemaking would be minimal and would not adversely affect any sector of the economy in a material way. Additionally, this action complies with the principles of Executive Order 13563. Interested parties are invited to comment on the anticipated economic impact. In addition, these changes would not interfere with any action taken or planned by another agency, and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs.
In compliance with the Regulatory Flexibility Act (RFA), the FHWA has evaluated the effects of this NPRM on small entities and anticipates that this action will not have a significant economic impact on a substantial number of small entities. The proposed amendment provides procedures for use of ATCs in design-build project delivery of highway construction. As such, it primarily affects States, which are not included in the definition of small entity set forth in 5 U.S.C. 601. Therefore, States do not meet the definition of a small entity and the RFA does not apply. The FHWA further certifies that the proposed action will not have a significant economic impact on a substantial number of small entities.
The FHWA has determined that this NPRM will not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (UMRA). Section 202 of the UMRA, 2 U.S.C. 1531–1538, requires Federal agencies to prepare a written assessment of proposed Federal mandates likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year. The FHWA anticipates that this proposed rulemaking will not result in the expenditure by State, local, or tribal governments, or by the private sector, of more than $100 million annually. Thus, the FHWA is not required to prepare a written assessment under the UMRA.
Executive Order 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may have a substantial, direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This proposed action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and the FHWA has determined that this proposed action would not have a substantial direct effect or sufficient federalism implications on the States. The FHWA has also determined that this proposed action would not preempt any State law or regulation or affect the States' ability to discharge traditional State governmental functions.
Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to
The FHWA has analyzed this proposed rule under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.) and has determined preliminarily that this proposal does not contain collection of information requirements for the purposes of the PRA.
The FHWA has analyzed this action for the purpose of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.), and has determined that this action would not have any effect on the quality of the environment and meets the criteria for the categorical exclusion at 23 CFR 771.117(c)(20).
The FHWA has analyzed this proposed rule under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The FHWA does not anticipate that this proposed action would affect a taking of private property or otherwise have taking implications under Executive Order 12630.
This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
The FHWA has analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this proposed action would not cause an environmental risk to health or safety that might disproportionately affect children.
The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that the proposed action would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal laws. The proposed rulemaking addresses obligations of Federal funds to States for Federal-aid highway projects and would not impose any direct compliance requirements on Indian tribal governments. Therefore, a tribal summary impact statement is not required.
The FHWA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The FHWA has determined that this rule is not a significant energy action because the rule is not a significant regulatory action under Executive Order 12866, and the rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.
Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. The FHWA has determined that this rule does not raise any environmental justice issues.
A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
Construction, Construction manager, General contractor, Grant programs, Transportation, Highways, and Roads.
In consideration of the foregoing, the FHWA proposes to revise title 23, Code of Federal Regulations, part 636 as follows:
Sec. 1503 of Pub. L. 109–59, 119 Stat. 1144; Sec. 1307 of Pub. L. 105–178, 112 Stat. 107; 23 U.S.C. 101, 109, 112, 113, 114, 115, 119, 128, and 315; 49 CFR 1.85(b).
(b)(1) At your discretion, you may allow proposers to submit alternative technical concepts (ATCs) in their proposals if:
(i) The alternative concepts do not conflict with criteria agreed upon in the environmental decision making process, and
(ii) The RFP document clearly describes the contracting agency's requirements for ATC:
(A) Content,
(B) Submission,
(C) Review,
(D) Confidential meetings procedures (if used), and
(E) Evaluation in the proposal review process.
(2) The confidentiality of ATCs will be maintained, except to the extent disclosure is necessary to maintain compliance with Federal or State permitting or other legal requirements necessary for the delivery of the project.
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing to approve the State Implementation Plan (SIP) revision submitted by the State of Idaho for parallel processing on July 16, 2013, for purposes of meeting the state board requirements of the Clean Air Act (CAA). The EPA is also proposing to approve the submittal as meeting the corresponding state board infrastructure requirements of the CAA for the 1997 ozone National Ambient Air Quality
Comments must be received on or before September 3, 2013.
Submit your comments, identified by Docket ID No. EPA–R10–OAR–2013–0548, by any of the following methods:
A.
B.
C.
D.
Kristin Hall at (206) 553–6357,
Throughout this document wherever “we”, “us”, or “our” are used, it is intended to refer to the EPA.
CAA section 128, titled “State Boards,” requires each SIP “to contain requirements that (1) any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under this chapter, and (2) any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.” 42 U.S.C. 7428.
On July 18, 1997, the EPA issued a revised NAAQS for ozone.
On March 27, 2008, EPA issued a finding that the State of Idaho had failed to make a complete submittal to satisfy the requirements of CAA section 110(a)(2) for the 1997 ozone NAAQS (73 FR 16205). On September 15, 2008, the State of Idaho made a SIP submittal to the EPA for purposes of meeting the requirements of CAA section 110(a)(2) for the 1997 ozone NAAQS. On April 11, 2012, we proposed to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(A), (B), (C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and (M) for the 1997 ozone NAAQS (77 FR 21702). In the notice, we stated that Idaho's SIP submission did not address all of the requirements of CAA section 110(a)(2)(E)(ii), which requires that infrastructure SIPs meet the requirements of CAA section 128, and that we would address the requirements of CAA section 110(a)(2)(E)(ii) in a separate action (77 FR at 21710). On July 17, 2012, we took final action to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(A), (B), (C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and (M) for the 1997 ozone NAAQS (77 FR 41916).
On July 16, 2013, the State submitted a SIP revision
In this action, we are proposing to approve the July 16, 2013, submittal as meeting the requirements of CAA section 128 and CAA section 110(a)(2)(E)(ii) for the 1997 ozone NAAQS, if the final SIP revision submitted by the State to the EPA is consistent with the July 16, 2013, submittal. The EPA's proposed determination that Idaho's SIP, as amended, meets the CAA section 128 requirements for purposes of CAA section 110(a)(2)(E)(ii) with respect to the 1997 ozone NAAQS is also applicable to CAA section 110(a)(2)(E)(ii) requirements for other infrastructure SIP submittals for Idaho. Our evaluation of the State's submittal is presented below.
Idaho Code § 39–107, Board—Composition—Officers—Compensation—Powers—Subpoena—Depositions—Review, was originally approved into the Idaho SIP on July 28, 1982 (47 FR 32530), and subsequently approved on January 16, 2003 (68 FR 2217). Idaho Code § 39–107(1)(a) establishes compositional requirements of the Idaho Board of Environmental Quality (Board), namely, that it consist of seven members who shall be appointed by the governor and further that:
Each member of the board shall be a citizen of the United States, a resident of the state of Idaho, and a qualified elector, and shall be appointed to assure appropriate geographic representation of the state of Idaho. No more than four (4) members of the board shall be from any one (1) political party. Two (2) members of the board shall be chosen with due regard to their knowledge of and interest in solid waste; two (2) members shall be chosen for their knowledge of and interest in air quality; two (2) members shall be chosen for their knowledge of and interest in water quality; and one (1) member shall be chosen with due regard for his knowledge of and interest in air, water and solid waste issues.
To meet the requirements of CAA section 128(a)(1), Idaho has submitted Executive Order 2013–06, dated June 26, 2013, which orders that “the appointment of members to the Idaho board of environmental quality shall be made in conformance with the requirements of Idaho Code section 39–107(1)(a), and section 128 of the Clean Air Act.” The EPA believes that Executive Order 2013–06 meets the requirements of CAA section 128(a)(1). Thus, if the final SIP revision submitted by Idaho is consistent with the July 16, 2013, submittal, the EPA proposes to find that Idaho's SIP revision meets the requirements of that CAA section 128(a)(1) and the corresponding board infrastructure requirements of CAA section 110(a)(2)(E)(ii) for the 1997 ozone NAAQS.
The EPA notes, however, that as provided in Idaho Code § 67–802, executive orders in Idaho cease to be effective four calendar years from the date of issuance unless an earlier termination date is specified in the order or unless the order is renewed by subsequent executive order. Because Executive Order 2013–06 does not specify an earlier termination date, it will expire on June 26, 2017, unless it is renewed by subsequent executive order. The EPA therefore notes that if Executive Order 2013–06 is not renewed, or if it is not replaced with legislation or some other legal authority meeting the requirements of CAA section 128(a)(1) and submitted to and approved by EPA as a SIP revision, Idaho's SIP will no longer meet the requirements of CAA section 128(a)(1). At that time, the EPA will consider appropriate action.
The July 16, 2013, submittal also includes the Idaho statutes governing disclosure of conflicts of interest for public officials, specifically, Idaho Code §§ 59–701 through 59–705, Ethics in Government. Idaho Code § 59–704 is the heart of these disclosure provisions and establishes required action in the case of conflicts of interest. That section provides that “A public official shall not take any official action or make a formal decision or formal recommendation concerning any matter where he has a conflict of interest and has failed to disclose such conflict as provided in this section.” Under Idaho Code § 59–703(10), “public official” is defined to include “any person holding public office of a governmental entity by virtue of formal appointment as required by law” and “any person holding public office of a governmental entity by virtue of employment, or a person employed by a governmental entity on a consultive basis.” Thus, the disclosure requirements in Idaho Code § 59–704 apply to Board members and the Director of the Idaho Department of Environmental Quality (IDEQ). In conjunction with the definition of “official action” in Idaho Code § 59–703(1), the EPA believes that Idaho Code § 59–704 requires the disclosure of conflicts of interest by a member of the Board or the Director of the IDEQ in their approvals of permits and enforcement orders and is thus consistent with the requirements of CAA section 128(a)(2). Therefore, if the final SIP revision submitted by Idaho is consistent with the July 16, 2013, submittal, the EPA proposes to approve Idaho's final SIP revision as meeting the requirements of CAA section 128(a)(2) and the corresponding board infrastructure requirements of CAA section 110(a)(2)(E)(ii) for the 1997 ozone NAAQS.
Pursuant to CAA sections 110 and 128, if the final SIP revision submitted by Idaho to address the requirements of CAA section 128 is consistent with Idaho's July 16, 2013, submittal, the EPA is proposing to approve Idaho's SIP revision as meeting the requirements of CAA sections 128 and also the requirements of CAA section 110(a)(2)(E)(ii) for the 1997 ozone NAAQS. This approval, once finalized, would also serve as a determination that Idaho meets the CAA section 128 requirements for purposes of CAA section 110(a)(2)(E)(ii) for other infrastructure SIP submittals for Idaho.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and
• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and the EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Ozone, and Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Colorado. On March 31, 2010, the Governor of Colorado's designee submitted to EPA a Clean Air Act (CAA) section 175A(b) second 10-year maintenance plan for the Colorado Springs area for the carbon monoxide (CO) National Ambient Air Quality Standard (NAAQS). This limited maintenance plan (LMP) addresses maintenance of the CO NAAQS for a second 10-year period beyond the original redesignation. This action is being taken under sections 110 and 175A of the CAA.
Written comments must be received on or before September 3, 2013.
Submit your comments, identified by Docket ID No. EPA–R08–OAR–2011–0659, by one of the following methods:
•
•
•
•
•
Please see the direct final rule which is located in the Rules and Regulations section of this
Adam Clark, Air Program, EPA, Region 8, Mailcode 8P–AR, 1595 Wynkoop, Denver, Colorado 80202–1129, (303) 312–7104,
In the “Rules and Regulations” section of this
42 U.S.C. 7401 et seq.
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing to approve State Implementation Plan (SIP) revisions submitted by the Commonwealth of Massachusetts. These are revisions to existing air pollution control requirements for stationary sources of volatile organic compounds (VOCs) and nitrogen oxides (NO
Written comments must be received on or before September 3, 2013.
Submit your comments, identified by Docket ID Number EPA–R01–OAR–2008–0446 by one of the following methods:
1.
2.
3.
4.
5.
In addition, copies of the state submittal are also available for public inspection during normal business hours, by appointment at the State Air Agency; Division of Air Quality Control, Department of Environmental Protection, One Winter Street, 8th Floor, Boston, MA 02108.
Bob McConnell, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100 (mail code: OEP05–2), Boston, MA 02109–3912, telephone number (617) 918–1046, fax number (617) 918–0046, email
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Additionally, the phrase “the Commonwealth” refers to the Commonwealth of Massachusetts.
Organization of this document. The following outline is provided to aid in locating information contained in this preamble.
On July 11, 2001, and September 14, 2006, the Massachusetts Department of Environmental Protection (DEP) submitted two separate requests for proposed revisions to its SIP. The July 11, 2001 submittal was supplemented with two additional submittals, one on August 9, 2001, and a second on January 18, 2002 (collectively referred to herein as the July 11, 2001 submittal).
The July 11, 2001 submittal includes revisions to Title 310 of the Code of Massachusetts Regulations (CMR), section 7.19, Reasonably Available Control Technology (RACT) for Sources of Nitrogen Oxides (NO
The September 14, 2006 submittal included revisions to 310 CMR 7.00, Definitions; 7.05, Fuels All Districts; 7.19, RACT for Sources of NO
The Commonwealth's submittal includes a number of terms to be added or revised to 310 CMR 7.00, Definitions. The terms are defined to facilitate interpretation and understanding, and enhance enforceability, of the state's air pollution control regulations. Definitions for 81 terms are included in the Commonwealth's submittal and we are proposing to incorporate these terms into the Massachusetts SIP. A list of these terms and the Commonwealth's definitions for them are included in the Docket for this rulemaking. These definitions as used in the Commonwealth's regulations that are currently approved into the Massachusetts SIP are consistent with the applicable requirements of the Clean Air Act. Among the more significant definitions being amended are several which pertain to the Commonwealth's new source review program, as follows: “Federal potential to emit”; “nonattainment area”; and “Potential emissions or potential to emit.” These definitions were strengthened and are consistent with federal requirements under the Clean Air Act.
The Commonwealth's September 16, 2006 submittal included a minor change
Massachusetts' September 14, 2006 submittal included changes to previously adopted portions of 310 CMR 7.18, Volatile and Halogenated Organic Compounds. The majority of the changes were minor and designed to improve the clarity of the regulation. A brief summary of the more substantive changes is provided below.
Within 310 CMR 7.18(1), Applicability and Handling Requirements, the requirements for coating mixing tanks were strengthened by adding tank cover requirements.
Within 310 CMR 7.18(2), Compliance with Emission Limits, a provision allowing daily-weighted averaging of coating limits was inserted to provide greater flexibility to operators. This compliance option is consistent with EPA's policy for coating regulations. See EPA's “Model VOC Rules for RACT,” dated June, 1992.
Within 310 CMR 7.18(8), Solvent Metal Degreasing, an exemption was added for aqueous cleaners that meet specified criteria. This is a non-significant amendment because the exemption applies to water-based cleaners.
Within 310 CMR 7.18(11), Surface Coating of Miscellaneous Metal Parts and Products, revised wording was provided to clarify exemption eligibility requirements.
Within 310 CMR 7.18(19), Synthetic Organic Chemical Manufacture, revised language was provided to clarify the submittal date for quarterly reporting.
Within 310 CMR 7.18(20), Emission Control Plans for Implementation of RACT, revised language clarifies an exemption for certain facilities issued approvals pursuant to 310 CMR 7.02, Plan Approvals. A provision allowing for additional requirements, such as stack testing or emissions monitoring, that would be added to emission control plans was also incorporated into this section.
Within 310 CMR 7.18, language that strengthens compliance obligations by adding federally-enforceable emission limits, was added to the following sections: of 310 CMR 7.18: (21), Surface Coating of Plastic Parts; (22), Leather Surface Coating; (23), Wood Products Surface Coating, (24), Flat wood Paneling Surface Coating; (25), Offset Lithographic Printing; and, (26), Textile Finishing.
Section 7.18(27), Coating Mixing Tanks, within which several minor wording changes were made to improve the clarity of the regulation.
Within 310 CMR 7.18(28), Automotive Refinishing, new emission limits were established for multi-colored topcoats. Additionally, new labeling and recordkeeping requirements were added, and exemptions for touch up coatings, stencil coatings, and coatings sold in non-refillable aerosol containers were added to the automotive refinishing requirements. The exempted applications are reasonable and all pertain to very low volume applications.
EPA's automotive refinishing regulation similarly exempts such coatings. See 40 CFR Part 59 Subpart B.
As noted earlier in this notice, on July 11, 2001, the Commonwealth submitted proposed SIP revisions to EPA. This submittal was supplemented with additional materials sent to EPA on August 9, 2001 and January 18, 2002. Included within these submittals was an addition to the list of sources exempt from NO
The Commonwealth's September 16, 2006 submittal contained a change to the tank inspection requirements located at 310 CMR 7.24(1)(d)(7). The change removed the requirement that the covers and seals of double seal system tanks be inspected once every five years. These inspections must now occur whenever the tank is emptied for non operational reasons or once every 10 years, whichever is sooner.
Prior versions of 310 CMR 7.00, 7.05, 7.18, 7.19, and 7.24 have previously been approved by EPA into the Massachusetts SIP. See 40 CFR 52.1120 and 52.1167. Today's amendments clarify and/or enhance the enforceability of the existing regulations and on balance would not result in any increases in VOC or NO
EPA's review of this material indicates that the Commonwealth's requests are approvable and consistent with the requirements of the Clean Air Act, and we are therefore proposing approval of them. EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the
As noted earlier in this notice, EPA is proposing to approve SIP revisions submitted by the Commonwealth of Massachusetts pertaining to the following sections of 310 CMR: 7.00, Definitions; 7.05, Fuels All Districts; 7.18, Volatile and Halogenated Organic Compounds; 7.19, RACT for Sources of Oxides of Nitrogen (NO
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Office of the Secretary, Interior.
Proposed rule; request for comments.
The Department of the Interior is proposing to amend its regulations to exempt certain records in the Incident Management, Analysis and Reporting System from one or more provisions of the Privacy Act because of criminal, civil, and administrative law enforcement requirements.
Submit written comments on or before September 30, 2013.
Send written comments, identified by RIN number 1090–AB02, by one of the following methods:
•
•
•
David Alspach, Office of the Secretary Privacy Act Officer, 1849 C Street NW., Mail Stop 2650 MIB, Washington, DC 20240. Email at
The Privacy Act of 1974, as amended (Privacy Act), 5 U.S.C. 552a, governs the means by which the U.S. Government collects, maintains, uses and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A system of records is a group of any records under the control of an agency from which information about an individual is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. See 5 U.S.C. 552a(a)(4) and (5).
An individual may request access to records containing information about him or herself, 5 U.S.C. 552a(b), (d). However, the Privacy Act authorizes Government agencies to exempt systems of records from access by individuals under certain circumstances, such as where the access or disclosure of such information would impede national security or law enforcement efforts. Exemptions from Privacy Act provisions must be established by regulation, 5 U.S.C. 552a(j) and (k).
The Department of the Interior (DOI), Office of the Secretary, maintains the Incident Management, Analysis and Reporting System (IMARS) system of records. IMARS is an incident management and reporting system which will enhance and improve the following capabilities to the Department: Preventing, detecting and investigating known and suspected criminal activity; protecting natural and cultural resources; capturing, integrating and sharing law enforcement and related information and observations from other sources; identifying needs such as training and resources; measuring performance of law enforcement programs and operations; meeting reporting requirements; providing Department of Homeland Security and National Incident Based Reporting System interface frameworks; analyzing and prioritizing protection efforts; justifying requests and expenditures; assisting in managing visitor use and protection programs, including training; investigating, detaining and apprehending those committing crimes on DOI properties or tribal reservations (for the purpose of this system of records notice, tribal reservations include contiguous areas policed by tribal or Bureau of Indian Affairs law enforcement offices) managed by a Native American tribe under DOI's Bureau of Indian Affairs; and investigating and preventing visitor accident injuries on DOI properties or tribal reservations.
Incident and non-incident data related to criminal and civil activity will be collected in support of law enforcement, homeland security, and security (physical, personnel and stability, information, and industrial) activities. This may include data documenting all investigations and law enforcement activities, traffic safety and traffic accidents. Data relating to emergency management, sharing and analysis activities of the Department will also be collected.
In accordance with the Privacy Act of 1974, as amended, DOI proposes to consolidate the following DOI Privacy Act systems of records: Bureau of Reclamation Law Enforcement Management Information System (RLEMIS)—Interior, WBR–50 (73 FR 62314, October 20, 2008); Fish and Wildlife Service Investigative Case File
In this notice of proposed rulemaking, the Office of the Secretary is proposing to exempt the IMARS system from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2) and (k)(2). Certain Department of the Interior bureaus and offices currently have published exemptions for law enforcement records, and these exemptions will continue to be applicable until the final rule has been completed.
Under 5 U.S.C. 552a(j)(2),the head of a Federal agency may promulgate rules to exempt a system of records from certain provisions of 5 U.S.C. 552a if the system of records is “maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control or reduce crime or to apprehend criminals.” Under 5 U.S.C. 552a(k)(2), the head of a Federal agency may promulgate rules to exempt a system of records from certain provisions of 5 U.S.C. 552a if the system of records is “investigatory material complied for law enforcement purposes, other than material within the scope of subsection (j)(2),” or “investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information.”
Because this system of records contains law enforcement and investigative material within the provision of 5 U.S.C. 552a(j)(2) and (k)(2), the Department of the Interior proposes to exempt the IMARS System of Records from one or more of the following provisions: 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1) through (e)(3), (e)(4)(G) through (e)(4)(I), (e)(5), (e)(8), (f), and (g). Where a release would not interfere with or adversely affect law enforcement activities, including but not limited to revealing sensitive information or compromising confidential sources, the exemption may be waived on a case-by-case basis. Exemptions from these particular subsections are justified for the following reasons:
1. 5 U.S.C. 552a(c)(3). This section requires an agency to make the accounting of each disclosure of records available to the individual named in the record upon request. Release of accounting of disclosures would alert the subjects of an investigation to the existence of the investigation and the fact that they are subjects of the investigation. The release of such information to the subjects of an investigation would provide them with significant information concerning the nature of the investigation, and could seriously impede or compromise the investigation, endanger the physical safety of confidential sources, witnesses and their families, and lead to the improper influencing of witnesses, the destruction of evidence, or the fabrication of testimony.
2. 5 U.S.C. 552a(c)(4); (d); (e)(4)(G) and (e)(4)(H); (f); and (g). These sections require an agency to provide notice and disclosure to individuals that a system contains records pertaining to the individual, as well as providing rights of access and amendment. Granting access to records in IMARS could inform the subject of an investigation of an actual or potential criminal violation of the existence of that investigation, of the nature and scope of the information and evidence obtained, of the identity of confidential sources, witnesses, and law enforcement personnel, and could provide information to enable the subject to avoid detection or apprehension. Granting access to such information could seriously impede or compromise an investigation; endanger the physical safety of confidential sources, witnesses, and law enforcement personnel, as well as their families; lead to the improper influencing of witnesses, the destruction of evidence, or the fabrication of testimony; and disclose investigative techniques and procedures. In addition, granting access to such information could disclose classified, security-sensitive, or confidential information and could constitute an unwarranted invasion of the personal privacy of others.
3. 5 U.S.C. 552a(e)(1). This section requires the agency to maintain information about an individual only to the extent that such information is relevant or necessary. The application of this provision could impair investigations and law enforcement, because it is not always possible to determine the relevance or necessity of specific information in the early stages of an investigation. Relevance and necessity are often questions of judgment and timing, and it is only after the information is evaluated that the relevance and necessity of such information can be established. In addition, during the course of the investigation, the investigator may obtain information which is incidental to the main purpose of the investigation but which may relate to matters under the investigative jurisdiction of another agency. Such information cannot readily be segregated. Furthermore, during the course of the investigation, an investigator may obtain information concerning the violation of laws outside the scope of the investigator's jurisdiction. In the interest of effective law enforcement, DOI investigators should retain this information, since it can aid in establishing patterns of criminal activity and can provide valuable leads for other law enforcement agencies.
4. 5 U.S.C. 552a(e)(2). This section requires the agency to collect information directly from the individual to the greatest extent practical when the information may result in an adverse determination. The application of this provision could impair investigations and law enforcement by alerting the subject of an investigation of the existence of the investigation, enabling the subject to avoid detection or apprehension, to influence witnesses improperly, to destroy evidence, or to fabricate testimony. In addition, in certain circumstances, the subject of an investigation cannot be required to provide information to investigators, and information must be collected from other sources. Furthermore, it is often necessary to collect information from sources other than the subject of the investigation to verify the accuracy of the evidence collected.
5. 5 U.S.C. 552a(e)(3). This section requires an agency to inform each person whom it asks to supply information, on a form that can be retained by the person, of the authority which the information is sought and whether disclosure is mandatory or voluntary; of the principal purposes for which the information is intended to be used; of the routine uses which may be made of the information; and the effects on the person, if any, of not providing all or any part of the requested information. The application of this provision could provide the subject of an investigation with substantial information about the nature of that investigation, which could interfere with the investigation. Moreover, providing such information to the subject of an investigation could seriously impede or compromise an undercover investigation by revealing its existence and could endanger the
6. 5 U.S.C. 552a(e)(4)(I). This section requires an agency to provide public notice of the categories of sources of records in the system. The application of this section could disclose investigative techniques and procedures and cause sources to refrain from giving such information because of fear of reprisal, or fear of breach of promise(s) of anonymity and confidentiality. This could compromise DOI's ability to conduct investigations and to identify, detect and apprehend violators.
7. 5 U.S.C. 552a(e)(5). This section requires an agency to maintain its records with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in making any determination about the individual. In collecting information for criminal law enforcement purposes, it is not possible to determine in advance what information is accurate, relevant, timely, and complete. Material that may seem unrelated, irrelevant, or incomplete when collected may take on added meaning or significance as the investigation progresses. The restrictions of this provision could interfere with the preparation of a complete investigative report, thereby impeding effective law enforcement.
8. 5 U.S.C. 552a(e)(8). This section requires an agency to make reasonable efforts to serve notice on an individual when any record on the individual is made available to any person under compulsory legal process when that process becomes a matter of public record. Complying with this provision could prematurely reveal an ongoing criminal investigation to the subject of the investigation.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rulemaking is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601,
This proposed rule would not be a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:
(a) Would not have an annual effect on the economy of $100 million or more.
(b) Would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c) Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.
This rulemaking would not impose an unfunded mandate on State, local, or tribal governments in the aggregate, or on the private sector, of more than $100 million per year. The proposed rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. This proposed rule would make only minor changes to 43 CFR part 2. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
In accordance with Executive Order 12630, the rulemaking would not have significant takings implications. This proposed rule would make only minor changes to 43 CFR part 2. A takings implication assessment is not required.
In accordance with Executive Order 13132, this proposed rule does not have any federalism implications to warrant the preparation of a Federalism Assessment. The proposed rule is not associated with, nor would it 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. A Federalism Assessment is not required.
This proposed rule complies with the requirements of Executive Order 12988. Specifically, this proposed rule:
(a) Would not unduly burden the judicial system.
(b) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(c) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
In accordance with Executive Order 13175, the Department of the Interior has evaluated this proposed rule and determined that it would have no substantial effects on federally recognized Indian Tribes.
This rulemaking does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required.
This rulemaking does not constitute a major Federal action and would not have a significant effect on the quality of the human environment. Therefore, this proposed rule does not require the preparation of an environmental assessment or environmental impact statement under the requirements of the National Environmental Policy Act of 1969.
This proposed rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
We are required by Executive Order 12866 and 12988, the Plain Writing Act of 2010 (H.R. 946), and the Presidential Memorandum of June 1, 1998, to write all rulemaking in plain language. This means each rule we publish must:
—Be logically organized;
—Use the active voice to address readers directly;
—Use clear language rather than jargon;
—Be divided into short sections and sentences; and
—Use lists and table wherever possible.
Administrative practice and procedure, Classified information, Courts, Freedom of information, Government employees, Privacy.
For the reasons stated in the preamble, the Department of the Interior proposes to amend 43 CFR part 2 as follows:
5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 3717; 43 U.S.C. 1460, 1461.
(a)
(1) Investigative Records, Interior/Office of Inspector General—2.
(2) Incident Management, Analysis and Reporting System, DOI–10.
(b)
(1) Investigative Records, Interior/Office of Inspector General—2.
(2) Permits System, Interior/FWS–21.
(3) Civil Trespass Case Investigations, Interior/BLM–19.
(4) Employee Conduct Investigations, Interior/BLM–20.
(5) [Reserved]
(6) [Reserved]
(7) Employee Financial Irregularities, Interior/NPS–17.
(8) Trespass Cases, Interior/Reclamation-37.
(9) Litigation, Appeal and Case Files System, Interior/Office of the Solicitor-1 to the extent that it consists of investigatory material compiled for law enforcement purposes.
(10) Endangered Species Licenses System, Interior/FWS–19.
(11) Timber Cutting and Trespass Claims Files, Interior/BIA–24.
(12) Incident Management, Analysis and Reporting System, DOI–10.
(c) Investigatory records exempt under 5 U.S.C. 552a(k)(5), the following systems of records have been exempted from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I) and (f) of 5 U.S.C. 552a and the provisions of the regulations in this subpart implementing these subsections:
(1) [Reserved]
(2) National Research Council Grants Program, Interior/GS–9
(3) Committee Management Files, Interior/Office of the Secretary—68.
Office for Civil Rights (OCR), HHS.
Request for Information.
Section 1557 of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act) (42 U.S.C. 18116) prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities. Section 1557(c) of the Affordable Care Act authorizes the Secretary of the Department of Health and Human Services (Department) to promulgate regulations to implement the nondiscrimination requirements in Section 1557. This notice is a request for information (RFI) to inform the Department's rulemaking for Section 1557. This RFI seeks information on a variety of issues to better understand individuals' experiences with discrimination in health programs or activities and covered entities' experiences in complying with Federal civil rights laws.
Comments must be received at one of the addresses provided below, no later than 5p.m. on September 30, 2013.
Written comments may be submitted through any of the methods specified below. Please do not submit duplicate comments.
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Carole Brown, 202–619–0805.
Section 1557 is consistent with and promotes several of the Administration's and Department's key initiatives that promote health and equal access to health care. In 2011, the Department adopted the Health and Human Services Action Plan to Reduce Racial and Ethnic Health Disparities (HHS Disparities Action Plan). With the HHS Disparities Action Plan, the Department commits to continuously assessing the impact of all policies and programs on health disparities and promoting integrated approaches, evidence-based programs and best practices to reduce these disparities. The HHS Action Plan builds on the strong foundation of the Affordable Care Act and is aligned with programs and initiatives such as Healthy People 2020, the First Lady's Let's Move initiative and the President's National HIV/AIDS Strategy. In addition, Exchanges or Health Insurance Marketplaces established under the Affordable Care Act must also comply with all applicable Federal laws prohibiting discrimination.
Section 1557 provides that an individual shall not be excluded from participation in, be denied the benefits of, or be subjected to discrimination on the grounds prohibited under Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. 2000d et seq. (race, color, national origin), Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. 1681 et seq. (sex), the Age Discrimination Act of 1975 (Age Act), 42 U.S.C. 6101 et seq. (age), or Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. 794 (disability), under any health program or activity, any part of which is receiving Federal financial assistance, or under any program or activity that is administered by an Executive Agency or any entity established under Title I of the Affordable Care Act or its amendments. Section 1557 states that the “enforcement mechanisms provided for and available under” Title VI, Title IX, Section 504, or the Age Act shall apply for purposes of violations of Section 1557. The Department is responsible for developing regulations to implement Section 1557.
In developing a regulation to implement Section 1557, the Department recognizes that Section 1557 builds on a landscape of existing civil rights laws. For example, the prohibitions against discrimination on the grounds of race, color, national origin, age, and disability in Title VI, the Age Act, and Section 504, respectively, apply to all programs and activities covered by those statutes, including those related to health; however, the prohibition of sex discrimination in Title IX applies only to education programs and activities of covered entities. Section 1557 is the first Federal civil rights statute that prohibits sex discrimination in health programs and activities of covered entities. Section 1557 also applies to entities created under Title I of the Affordable Care Act, such as the Health Insurance Marketplaces.
Additionally, Section 1557 is the first broad based Federal civil rights statute incorporating the grounds prohibited by four distinct civil rights statutes. Although Title VI, Title IX, the Age Act, and Section 504 have similarities in their purpose, structure, requirements, and enforcement mechanisms, they also have notable differences.
Moreover, almost 50 years have passed since Title VI was enacted and roughly 40 years have passed since Title IX, Section 504, and the Age Act were enacted. Since the enactment of these civil rights laws, the demographics of the United States have increasingly diversified, major advances in electronic and information technology have occurred, and the health care landscape has changed, particularly with the enactment of the Affordable Care Act.
Recognizing the significant issues implicated by the development of a regulation to implement Section 1557, the Department is requesting information through this notice from stakeholders on a range of issues to better inform our rulemaking. The Department welcomes comments from all interested stakeholders, including individuals potentially protected from discrimination under Section 1557, organizations serving or representing the interests of such individuals, the legal community, State, Tribal, and local health agencies, health care providers, health insurers, and other health programs.
The Department is requesting information regarding the following issues. In responding, please indicate in your response the corresponding question number and provide the basis or reasoning for your answers with as much specificity and detail as possible, as well as any supporting documentation, including research or analyses, to ensure we have the most helpful information for our rulemaking.
1. The Department is interested in experiences with, and examples of, discrimination in health programs and activities. Please describe experiences that you have had, or examples of which you are aware, with respect to the following types of discrimination in health programs and activities: (a) Race, color, or national origin discrimination; (b) Sex discrimination (including discrimination on the basis of gender identity, sex stereotyping, or pregnancy); (c) Disability discrimination; (d) Age discrimination; or (e) discrimination on one or more bases, where those bases intersect.
2. There are different types of health programs and activities. These include health insurance coverage, medical care in a physician's office or hospital, or home health care, for example. What are examples of the types of programs and activities that should be considered health programs or activities under Section 1557 and why?
3. What are the impacts of discrimination? What studies or other evidence documents the costs of discrimination and/or the benefits of equal access to health programs and activities for various populations? For example, what information is available regarding possible consequences of unequal access to health programs and services, such as delays in diagnosis or treatment, or receipt of an incorrect diagnosis or treatment? We are particularly interested in information relevant to areas in which Section 1557 confers new jurisdiction.
4. In the interest of ensuring access to health programs and activities for individuals with limited English proficiency (LEP):
(a) What are examples of recommended or best practice standards for the following topics: (1) Translation services, including thresholds for the translation of documents into non-English languages and the determination of the service area relevant for the application of the thresholds; (2) oral interpretation services, including in-person and telephonic communications, as well as interpretation services provided via telemedicine or telehealth communications; and (3) competence (including certification and skill levels) of oral interpretation and written translation providers and bilingual staff?
(b) What are examples of effective and cost-efficient practices for providing language assistance services, including translation, oral interpretation, and taglines? What cost-benefit data are available on providing language assistance services?
(c) What are the experiences of individuals seeking access to, or participating in, health programs and activities who have LEP, especially persons who speak less common non-English languages, including languages spoken or understood by American Indians or Alaska Natives?
(d) What are the experiences of covered entities in providing language assistance services with respect to: (1) Costs of services, (2) cost management, budgeting and planning, (3) current state of language assistance services technology, (4) providing services for individuals who speak less common non-English languages, and (5) barriers covered entities may face based on their types or sizes?
(e) What experiences have you had developing a language access plan? What are the benefits or burdens of developing such a plan?
(f) What documents used in health programs and activities are particularly important to provide in the primary language of an individual with LEP and why? What factors should we consider in determining whether a document should be translated? Are there common health care forms or health-related documents that lend themselves to shared translations?
5. Title IX, which is referenced in Section 1557, prohibits sex discrimination in federally assisted education programs and activities, with certain exceptions. Section 1557 prohibits sex discrimination in health programs and activities of covered entities. What unique issues, burdens, or barriers for individuals or covered entities should we consider and address in developing a regulation that applies a prohibition of sex discrimination in the context of health programs and activities? What exceptions, if any, should apply in the context of sex discrimination in health programs and activities? What are the implications and considerations for individuals and covered entities with respect to health programs and activities that serve individuals of only one sex? What other issues should be considered in this area?
6. The Department has been engaged in an unprecedented effort to expand access to information technology to improve health care and health coverage. As we consider Section 1557's requirement for nondiscrimination in health programs and activities, what are the benefits and barriers encountered by people with disabilities in accessing electronic and information technology in health programs and activities? What are examples of innovative or effective and efficient methods of making electronic and information technology accessible? What specific standards, if any, should the Department consider applying as it considers access to electronic and information technology in these programs? What, if any, burden or barriers would be encountered by covered entities in implementing accessible electronic and information technology in areas such as web-based health coverage applications, electronic health records, pharmacy kiosks, and others? If specific accessibility standards were to be applied, should there be a phased-in implementation schedule, and if so, please describe it.
7. Section 1557 incorporates the enforcement mechanisms of Title VI, Title IX, Section 504 and the Age Act. These civil rights laws may be enforced in different ways. Title VI, Title IX, and Section 504 have one set of established administrative procedures for investigation of entities that receive Federal financial assistance from the Department. The Age Act has a separate administrative procedure that is similar, but requires mediation before an investigation. There is also a separate administrative procedure under Section 504 that applies to programs conducted by the Department. Under all these laws, parties also may file private litigation in Federal court, subject to some restrictions.
(a) How effective have these different processes been in addressing discrimination? What are ways in which we could strengthen these enforcement processes?
(b) The regulations that implement Section 504, Title IX, and the Age Act also require that covered entities conduct a self-evaluation of their compliance with the regulation. What experience, if any, do you have with self-evaluations? What are the benefits and burdens of conducting them?
(c) What lessons or experiences may be gleaned from complaint and grievance procedures already in place at many hospitals, clinics, and other covered entities?
8. Are there any other issues important to the implementation of Section 1557 that we should consider? Please be as specific as possible.
Because of the large number of public comments we normally receive on
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of proposed rulemaking.
PHMSA is seeking public comment on whether applying the integrity management program (IMP) requirements, or elements of IMP, to areas beyond current high consequence areas (HCAs) would mitigate the need for class location requirements for gas transmission pipelines.
Section 5 of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 requires the Secretary of Transportation to evaluate and issue a report on whether IMP requirements should be expanded beyond HCAs and whether such expansion would mitigate the need for class location requirements.
The public comment period for this notice ends September 30, 2013.
You may submit comments identified by the Docket ID PHMSA–2013–0161 by any of the following methods:
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Comments will be posted without changes or edits to
Mike Israni at 202–366–4571 or by email at
Section 5 of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 requires the Secretary of Transportation to evaluate and issue a report on whether IMP requirements, or elements of IMP, should be expanded beyond HCAs and, with respect to gas transmission pipeline facilities, whether applying IMP requirements to additional areas would mitigate the need for class location requirements. The 2011 Act requires that in conducting the evaluation, the Secretary shall consider, at a minimum, the following:
(1) The continuing priority to enhance protections for public safety.
(2) The continuing importance of reducing risk in high consequence areas.
(3) The incremental costs of applying integrity management (IM) standards to pipelines outside of high-consequence areas where operators are already conducting assessments beyond what is required under chapter 601 of Title 49, United States Code.
(4) The need to undertake IM assessments and repairs in a manner that is achievable and sustainable, and that does not disrupt pipeline service.
(5) The options for phasing in the extension of IM requirements beyond high-consequence areas, including the most effective and efficient options for decreasing risks to an increasing number of people living or working in proximity to pipeline facilities.
(6) The appropriateness of applying repair criteria, such as pressure reductions and special requirements for scheduling remediation, to areas that are not high-consequence areas.
Regulations for gas transmission pipelines establish pipe strength requirements based on population density near the pipeline. Locations along gas pipelines are divided into classes from 1 (rural) to 4 (densely populated) and are based upon the number of buildings or dwellings for human occupancy. Allowable pipe stresses, as a percentage of specified minimum yield strength (SMYS), decrease as class location increases from Class 1 to Class 4 locations.
Class locations were an early method of differentiating risk along gas pipelines. The class location concept pre-dates Federal regulation of pipelines. These designations were previously included in the ASME International standard, “Gas Transmission and Distribution Pipeline Systems,” (ASME B31.8) from which the initial pipeline safety regulations were derived.
Class location is determined by counting the number of dwellings within 660 feet of the pipeline for 1 mile (for Classes 1–3) or by determining that four-story buildings are prevalent along the pipeline (Class 4). Design factors, which are used in the formula to determine the design pressure for steel pipe and which generally reflect the maximum allowable percentage of SMYS, are 0.72 for Class 1, 0.60 for Class 2, 0.50 for Class 3, and 0.40 for Class 4. Pipelines are designed based on population along their route, and thus class location.
A class location can change as population grows and more people live or work near the pipeline. When a class location changes, pipeline operators must either reduce the pipe's operating pressure to reduce stress levels in the pipe; replace the existing pipe with pipe that has thicker walls or higher yield strength to yield a lower operating stress at the same operating pressure; or where the class is changing only one class rating, such as from a Class 1 to Class 2 location, conduct a pressure test at a higher pressure. Operators can apply for special permits to prevent the need for pipe replacement or pressure reduction after a class location changes. Based on certain operating safety criteria and periodic integrity evaluations, PHMSA has approved some class location special permits.
Gas IM requirements use a different approach to identify areas of higher risk along pipelines. The term “high consequence area” is used to identify pipelines that are subject to ongoing pipeline integrity assessments. HCAs are defined by counting the number of dwellings for human occupancy or identified sites where people congregate or where they are confined, such as a hospital, daycare facility, or a retirement or assisted-living facility, within a calculated impact circle that a potential pipeline failure could affect. Operators must periodically inspect the condition of their pipelines in an HCA and remediate any degradation that might affect the pipeline's integrity.
The class location requirements provide an additional safety margin for more densely populated areas. However, class location does not address the potential reduction of that safety margin over the course of time due to corrosion or other types of pipe degradation. IM requirements and HCA calculations provide additional safety for more densely populated areas because operators are required to conduct periodic inspections of the pipe and because repair timelines are specified for the anomalies identified within an HCA. Substituting an IM approach for the use of class locations would allow the operation of the pipeline at higher pressures while conducting integrity inspections and remediation to maintain safety.
On August 25, 2011, PHMSA published an Advance Notice of Proposed Rulemaking to seek comments on revising the pipeline safety regulations applicable to the safety of gas transmission and gas gathering pipelines. At that time, PHMSA requested comments on whether existing HCA criteria should be revised to potentially include more mileage or whether IMP requirements should be strengthened or expanded beyond the HCAs.
The comments received on this topic are summarized as follows:
An industry commenter stated that no change to the regulations is needed and suggested applying IM principles to non-HCA areas should be left to industry as a voluntary effort. This commenter maintained that because the current definition is based on sound science and is serving its purpose, no fundamental change is needed.
The Texas Pipeline Association and the Texas Oil & Gas Association commented that no change should be made until the studies required by the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 are completed.
The National Association of Pipeline Safety Representatives (NAPSR) suggested that PHMSA eliminate IM requirements and instead require all transmission pipelines to meet Class 3
The Jersey City Mayor's office submitted a petition for rulemaking dated March 15, 2012, contending that the current Class Location system “does not sufficiently reflect high density urban areas, as the regulations fail to contemplate either (1) the dramatic differences in population densities between highly congested areas and other less dense class 4 locations, or (2) the full continuum of population densities found in urban areas themselves.” Based on this, Jersey City petitioned PHMSA to add three (3) new class locations, which would be defined as follows:
• A Class 5 location is any class location unit that includes one or more building(s) with between four and eight stories; (design factor—0.3);
• A Class 6 location is any class location unit that includes one or more building(s) with between 9 and 40 stories; (design factor—0.2); and
• A Class 7 location is any class location unit that includes at least 1 building with at least 41 stories. (design factor—0.1)
The Alaska Natural Gas Development Authority stated that their experience has shown that improved pipeline design and construction requirements are needed to assure pipeline integrity. The Authority also commented that design requirements need to accommodate likely changes in class location, noting that explosive growth in some Alaska areas has resulted in certain class locations rapidly changing from Class 1 to Class 3.
A comment from the public suggested that PHMSA revise the IM requirements to potentially include more mileage (e.g., include entire Class 3 and 4 area in lieu of only the potentially impacted area inside Class 3 & 4) and critical infrastructure. The commenter further stated that PHMSA should expand IM principles to non-HCA areas, improve public awareness and involvement in HCAs, make maps publicly available, redefine class locations for high population areas, clarify Class 4, and establish a Class 5.
The same commenter suggested that IM plans for densely populated areas (Class 4) and for a new Class 5 encompassing cities with population greater than 100,000, be developed in consultation with local emergency responders. The commenter further suggested that these plans should be available for review during the Federal Energy Regulatory Commission's environmental impact study and should be reviewed with local authorities.
There are indirect or secondary links to class location throughout Part 192. These links include sections that do not specifically mention class location; however, the sections may reference maximum allowable operating pressure (MAOP). If the use of class location designation were to be eliminated or merged, many regulatory sections will need to be reevaluated. The following Subparts would be affected:
PHMSA is inviting comment on the following:
1. Should PHMSA increase the existing class location design factors in densely populated areas where buildings are over four stories?
2. Should class locations be eliminated and a single design factor used if IM requirements are expanded beyond HCAs?
3. Should there only be a single design factor for areas where there are large concentrations of populations, such as schools, hospitals, nursing homes, multiple-story buildings, stadiums, and shopping malls, as opposed to rural areas like deserts and farms where there are fewer people?
4. Should operators be allowed to increase the MAOP of a pipeline from the present MAOP if a single design factor is created for all levels of population density?
5. If class locations are eliminated and a single design factor used, should that single design factor be applied to existing pipelines:
a. Installed before 1970 (pre-Federal regulation);
b. That use low-frequency electric resistance welded pipe, electric flash welded pipe, lap-welded pipe, or other pipe manufactured with a seam factor less than 1.0 in accordance with Section 192.113;
c. That include pipe without mechanical (strength) and chemical properties reports;
d. That include pipe that has not been tested at or above 1.25 times MAOP;
e. That include pipe that operates without a pressure test in accordance with the Grandfather Clause in Section 192.619(c);
f. That include pipe that is presently operating above the design factor of a Class 1 location due to the Grandfather Clause in Section 192.619(c); and
g. That include pipe with external coatings that shield cathodic protection?
6. Should a pipeline that is operated with a single design factor be subject to periodic operational IM measures, similar to the criteria for HCA locations, including:
a. Close interval surveys;
b. Coating surveys and remediation;
c. Stress corrosion cracking surveys (SCC) and segment replacement (if a SCC threat is found and not remediated);
d. An ongoing monitoring program for DC currents and induced AC currents in high-voltage power transmission line corridors (including proper remediation plans);
e. In-line tool inspections (ILI) to inspect for pipe metal loss (corrosion), cracks, hard spots, weld seams, and other integrity threats in steel pipe (ILI tool evaluations for metal loss must use specified-or-greater interaction criteria to ensure defects meet a minimum integrity criterion);
f. Repairs to defects within a periodic time interval that is based on maintaining the pipeline design safety factor with a maximum pipe wall loss;
g. Pipe surveys of the depth of cover over buried pipelines;
h. Data integration of all surveys, excavations, remediation, and other integrity threats; and
i. Pipeline remediation based on assessment and data integration findings.
7. Should pipelines where a single design factor is used for establishing the MAOP be required to ensure that:
a. Pipe seam quality issues are assessed and those pipes with quality or integrity concerns are removed from service;
b. Pipe coatings on the pipeline and girth weld joints are non-shielding to cathodic protection;
c. Pipe in a cased crossing can be assessed for metallic and electrolytic shorts;
d. Pipe defects or anomalies that cause the pipeline to not meet the pipeline's MAOP are remediated based on the design factor of the pipeline with a maximum pipe wall loss;
e. All girth welds are nondestructively tested at the time of construction;
f. Minimum pipeline hydrostatic test pressures, based on MAOP and pipe yield strength, are met;
g. Maximum spacing for cathodic protection pipe-to-soil test stations exists;
h. Additional safety measures are implemented in areas with reduced depth of cover over buried pipelines;
i. Line-of-sight markings on the pipeline are maintained, except in agricultural areas or at large water crossings (such as lakes) where line-of-sight signage is not practical;
j. Monthly ground or aerial right-of-way patrols are performed;
k. The applicable best practices of the Common Ground Alliance are included in the operator's damage prevention program; and
l. The pipeline is incorporated into an IM program as a “covered segment” in a HCA in accordance with Section 192.903, which will include seven-year maximum periodic reassessment intervals according to § 192.939.
8. Should a root cause analysis be required to determine the cause of all in-service and hydrostatic test failures or leaks?
9. Should pipelines without documented and complete material strength, wall thickness and seam records for pipe, fittings, flanges, fabrications, and valves, in accordance with Sections 192.105, 192.107, and 192.109 be allowed to operate at the single design factor?
10. Should operators of pipelines that are allowed to operate at the single design factor complete hydrostatic tests as required by Part 192, Subpart J, and maintain records as required in Section 192.517?
11. Should pipelines, under a single design factor, be required to meet additional pipe manufacturing quality controls to minimize defects such as low-strength pipe, steel laminations, and pipe seam defects?
12. Should pipeline construction personnel who would work in areas subject to the single design factor be required to take a construction operator qualification program?
13. For emergency response and pipeline isolation purposes in the event of a rupture or leak, if a single design factor is allowed, what should the maximum spacing be between the mainline valves on a pipeline?
a. Should all mainline valves be remotely or automatically activated if there is a rupture or leak on the pipeline?
b. If, during a rupture or a leak, the mainline valves are not remotely or automatically activated, what should the maximum time be for a pipeline crew to isolate the mainline section?
14. What should pressure limiting devices be set to for a pipeline operating with a single design factor?
15. If the design factors of class locations were to be eliminated, and a single design factor used instead, what additional design, construction, and operational criteria are required to maintain pipeline safety in urban areas and in rural areas?
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments; correction.
In the proposed rule that we, the National Marine Fisheries Service (NMFS), published on July 18, 2013, to designate critical habitat for the loggerhead sea turtle Northwest Atlantic Ocean Distinct Population Segment (DPS) and make a determination regarding critical habitat for the loggerhead sea turtle in the North Pacific Ocean DPS, a map was omitted. This document corrects that oversight and adds the map LOGG–N–17. All other information in the July 18, 2013 document remains unchanged.
Comments and information regarding this proposed rule must be received by September 16, 2013.
You may submit comments on this document, identified by NOAA–NMFS–2013–0079, by any of the following methods:
•
•
•
Susan Pultz, NMFS, Office of Protected Resources 301–427–8472 or
In the Proposed Rule to Designate Critical Habitat for the Northwest Atlantic Ocean Loggerhead Sea Turtle Distinct Population Segment (DPS) and Proposed Determination Regarding Critical Habitat for the North Pacific Ocean Loggerhead DPS that published at (78 FR 43005) on July 18, 2013, the map entitled, “Proposed Loggerhead Critical Habitat: LOGG–N–17 (Nearshore Reproductive, Breeding, Migratory)” was inadvertently omitted. This map should have appeared in the regulatory text for 50 CFR part 226.223 in numerical sequence with the maps of other units. This document corrects that oversight. All information in the proposed rule other than the additional map remains exactly the same as that previously published.
This rule proposes designation of critical habitat for the threatened Northwest Atlantic Ocean Distinct Population Segment (DPS) of the loggerhead sea turtle (
16 U.S.C. 1533.
Foreign Agricultural Service, USDA.
Notice.
This notice announces a fee of $200 to be charged for the 2014 tariff-rate quota (TRQ) year for each license issued to a person or firm by the Department of Agriculture authorizing the importation of certain dairy articles, which are subject to tariff-rate quotas set forth in the Harmonized Tariff Schedule (HTS) of the United States.
August 1, 2013.
Abdelsalam El-Farra, Dairy Import Licensing Program, Import Policies and Export Reporting Division, STOP 1021, U.S. Department of Agriculture, 1400 Independence Avenue SW., Washington, DC 20250–1021 or telephone at (202) 720–9439 or email at
The Dairy Tariff-Rate Import Quota Licensing Regulation promulgated by the Department of Agriculture and codified at 7 CFR 6.20–6.37 provides for the issuance of licenses to import certain dairy articles that are subject to TRQs set forth in the HTS. Those dairy articles may only be entered into the United States at the in-quota TRQ tariff-rates by or for the account of a person or firm to whom such licenses have been issued and only in accordance with the terms and conditions of the regulation.
Licenses are issued on a calendar year basis, and each license authorizes the license holder to import a specified quantity and type of dairy article from a specified country of origin. The use of such licenses is monitored by the Dairy Import Licensing Program, Import Programs and Export Reporting Division, Foreign Agricultural Service, U.S. Department of Agriculture, and the U.S. Customs and Border Protection, U.S. Department of Homeland Security.
The regulation at 7 CFR 6.33(a) provides that a fee will be charged for each license issued to a person or firm by the Licensing Authority in order to defray the Department of Agriculture's costs of administering the licensing system under this regulation.
The regulation at 7 CFR 6.33(a) also provides that the Licensing Authority will announce the annual fee for each license and that such fee will be set out in a notice to be published in the
Accordingly, notice is hereby given that the fee for each license issued to a person or firm for the 2014 calendar year, in accordance with 7 CFR 6.33, will be $200 per license.
Forest Service, USDA.
Notice of meeting.
The National Advisory Committee for Implementation of the National Forest System Land Management Planning Rule will meet in West Valley City, UT on August 27–29, 2013. Attendees may also participate via webinar and conference call. The Committee operates in compliance with the Federal Advisory Committee Act (FACA) (Pub. L. 92–463). The purpose of the Committee is to provide advice and recommendations on the implementation of the National Forest System Land Management Planning Rule. The purpose of this meeting is to continue the formulation of advice to the Secretary on the Proposed Land Management Planning Directives. This meeting is open to the public.
The meeting will be held from August 27–29, 2013, begin at 8:00 a.m. and end at 6:00 p.m. on Tuesday and Wednesday, and begin at 8:00 a.m. and end at 11:30 a.m. on Thursday, Mountain Standard Time.
The meeting will be held at the Embassy Suites Salt Lake/West Valley City, 3524 South Market Street, West Valley City, Utah, 84119. Attendees may also participate via webinar and conference call. For anyone who would like to attend via webinar and conference call, please contact Chalonda Jasper at
Written comments must be sent to USDA Forest Service, Ecosystem Management Coordination, 201 14th Street SW., Mail Stop 1104, Washington, DC 20250–1104. Comments may also be sent via email to Chalonda Jasper at
All comments are placed in the record and are available for public inspection and copying, including names and addresses when provided. The public may inspect comments received at 1601 N Kent Street, Arlington, VA 22209, 6th Floor. Please contact, Chalonda Jasper at 202–260–9400,
Chalonda Jasper, Ecosystem Management Coordination, 202–260–9400,
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The following business will be conducted:
1. Continue formulation of advice to the Secretary for the Proposed Land Management Planning Directives,
2. Discuss Committee working groups findings, and
3. Administrative tasks.
Further information will be posted on the Planning Rule Advisory Committee Web site at
If you require sign language interpreting, assistive listening devices or other reasonable accommodation, please submit request prior to the meeting by contacting Chalonda Jasper at 202–260–9400,
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with June anniversary dates. In accordance with the Department's regulations, we are initiating those administrative reviews.
Brenda E. Waters, Office of AD/CVD Operations, Customs Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482–4735.
The Department has received timely requests, in accordance with 19 CFR 351.213(b), for administrative reviews of various antidumping and countervailing duty orders and findings with June anniversary dates.
All deadlines for the submission of various types of information, certifications, or comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting time.
If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of review (“POR”), it must notify the Department within 60 days of publication of this notice in the
In the event the Department limits the number of respondents for individual examination for administrative reviews, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the POR. We intend to release the CBP data under Administrative Protective Order (“APO”) to all parties having an APO within seven days of publication of this initiation notice and to make our decision regarding respondent selection within 21 days of publication of this
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department has found that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance has prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day
In proceedings involving non-market economy (“NME”) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the
All firms listed below that wish to qualify for separate rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate rate application or certification, as described below. For these administrative reviews, in order to demonstrate separate rate eligibility, the Department requires entities for whom a review was requested, that were assigned a separate rate in the most recent segment of this proceeding in which they participated, to certify that they continue to meet the criteria for obtaining a separate rate. The Separate Rate Certification form will be available on the Department's Web site at
Entities that currently do not have a separate rate from a completed segment of the proceeding
For exporters and producers who submit a separate-rate status application or certification and subsequently are selected as mandatory respondents, these exporters and producers will no longer be eligible for separate rate status unless they respond to all parts of the questionnaire as mandatory respondents.
In accordance with 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than June 30, 2014.
During any
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the POR.
Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
On April 10, 2013, the Department published
Any party submitting factual information in an antidumping duty or countervailing duty proceeding must certify to the accuracy and completeness of that information.
These initiations and this notice are in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.221(c)(1)(i).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (Department) is amending the final results of the administrative review of the antidumping duty order on diamond sawblades and parts thereof (diamond sawblades) from the Republic of Korea (Korea) to correct certain ministerial errors.
Sergio Balbontin, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone 202–482–6478.
On June 13, 2013, the Department disclosed to interested parties its calculations for the
The merchandise subject to the order is diamond sawblades. The diamond sawblades subject to the order are currently classifiable under subheadings 8202 to 8206 of the Harmonized Tariff Schedule of the United States (HTSUS), and may also enter under 6804.21.00. The HTSUS subheadings are provided for convenience and customs purposes. A full description of the scope of the order is contained in the Memorandum to Paul Piquado, Assistant Secretary for Import Administration, entitled “Issues and Decision Memorandum for the Final Results in the Second Antidumping Duty Order Administrative Review of Diamond Sawblades and Parts Thereof from the Republic of Korea” dated June 10, 2013.
Section 751(h) of the Tariff Act of 1930, as amended (Act), and 19 CFR 351.224(f) define a “ministerial error” as an error “in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any similar type of unintentional error which the Secretary considers ministerial.” We have analyzed Ehwa's ministerial error comments and have determined, in accordance with section 751(h) of the Act and 19 CFR 351.224(e), that we, in fact, made ministerial errors in our calculations for the
In accordance with section 751(h) of the Act and 19 CFR 351.224(e), we are amending the
As a result of this amended administrative review, we determine that the following weighted-average dumping margins exist for the period November 1, 2010, through October 23, 2011:
We will disclose the calculations performed for these amended final results to interested parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
We are amending the assessment rate language published in the
The Department shall determine, and U.S. Customs and Border Protection (CBP) will assess, antidumping duties on all appropriate entries in accordance with 19 CFR 351.212(b)(1). On October 24, 2011, the U.S. Court of International Trade preliminarily enjoined liquidation of entries that are subject to the final determination.
For any individually examined respondents whose weighted-average dumping margin is above
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review when the importer-specific assessment rate calculated in the final results of this review is above
The Department clarified its “automatic assessment” regulation on May 6, 2003.
Effective October 24, 2011, the Department revoked the antidumping duty order on diamond sawblades from Korea, pursuant to a proceeding under section 129 of the Uruguay Round Agreements Act to implement the findings of the World Trade Organization dispute settlement panel in United States—
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
These final results of review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) preliminarily determines that Metinvest Holding LLC (Metinvest) and its affiliated companies, Azovstal Iron & Steel Works (Azovstal) and Ilyich Iron and Steel Works (Ilyich), are in compliance with the agreement suspending the antidumping investigation of certain cut-to-length carbon steel plate (CTL plate) from Ukraine for the period November 1, 2011 through October 31, 2012. The preliminary results are set forth in the section titled “Methodology and Preliminary Results,”
Judith Wey Rudman or Anne D'Alauro, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482–0192 or (202) 482–4830.
The products covered by the Agreement are hot-rolled iron and non-alloy steel universal mill plates, of rectangular shape, neither clad, plated nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances; and certain iron and non-alloy steel flat-rolled products not in coils, of rectangular shape, hot-rolled, neither clad, plated, nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances, 4.75 mm or more in thickness and of a width which exceeds 150 mm and measures at least twice the thickness. This merchandise is currently classified in the Harmonized Tariff Schedule of the United States (HTS) under item numbers 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7208.53.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, and 7212.50.0000. Excluded from the subject merchandise within the scope of this Agreement is grade X–70 plate. Although the HTS subheadings are provided for convenience and customs purposes, our written description of the scope of the Agreement is dispositive. For a full description of the scope of this Agreement, see
On September 29, 2008, the Department signed an agreement under section 734(b) of the Tariff Act of 1930, as amended (the Act), with Ukrainian steel producers/exporters, including Azovstal and Ilyich, suspending the antidumping duty investigation on CTL plate from Ukraine.
The review was initiated on December 31, 2012, for the November 1, 2011 through October 31, 2012 period of review. See
The Department has conducted this review in accordance with section 751(a)(1)(C) of the Act, which specifies that the Department shall “review the current status of, and compliance with, any agreement by reason of which an investigation was suspended.” In this case, the Department, Azovstal and Ilyich signed the Agreement suspending the underlying antidumping duty investigation on September 29, 2008. Pursuant to the Agreement, each signatory producer/exporter individually agrees to make any necessary price revisions to eliminate completely any amount by which the normal value (NV) of the subject merchandise exceeds the U.S. price of its merchandise subject to the Agreement.
Interested parties may submit case briefs not later than 30 days after the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, filed electronically via IA ACCESS. An electronically filed document must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by 5 p.m. Eastern Time within 30 days after the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in the respective case briefs. The Department intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on solid urea from the Russian Federation (Russia). The period of review (POR) is July 1, 2011, through June 30, 2012. The review covers one producer/exporter of the subject merchandise, MCC EuroChem (EuroChem). We preliminarily find that EuroChem has not sold subject merchandise at less than normal value during the POR.
Bryan Hansen or Minoo Hatten, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3683 or (202) 482–1690, respectively.
The merchandise subject to the order is solid urea. The product is currently classified under the Harmonized Tariff Schedules of the United States (HTSUS) item number 3102.10.00.00. The HTSUS subheading is provided for convenience and customs purposes. A full description of the scope of the order is contained in the memorandum from Gary Taverman, Senior Advisor for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Import Administration, “Decision Memorandum for Preliminary Results of Antidumping Duty Administrative Review: Solid Urea from the Russian Federation” dated concurrently with this notice (“Preliminary Decision Memorandum”), which is hereby adopted by this notice. The written description is dispositive.
The Preliminary Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). Access to IA ACCESS is available to registered users at
The Department has conducted this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Constructed export price is calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act. To determine the appropriate comparison method, the Department applied a “differential pricing” analysis and has preliminarily determined to use the average-to-average method in making comparisons of constructed export price and normal value for EuroChem. For a full description of the methodology underlying our conclusions,
As a result of this review, we preliminarily determine that a dumping margin of 0.00 percent exists for EuroChem for the period July 1, 2011, through June 30, 2012.
Pursuant to 19 CFR 351.309(c), interested parties may submit cases briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, filed electronically
Upon completion of the administrative review, the Department shall determine and U.S. Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries. If EuroChem's weighted-average dumping margin is not zero or
The Department clarified its “automatic assessment” regulation on May 6, 2003.
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of solid urea from Russia entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for EuroChem will be the rate established in the final results of this administrative review; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation but the manufacturer is, the cash deposit rate will be the rate established for the manufacturer of the merchandise for the most recently completed segment of this proceeding; (4) the cash deposit rate for all other manufacturers or exporters will continue to be 64.93 percent, the all-others rate established in
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Brenda E. Waters, Office of AD/CVD Operations, Customs Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482–4735.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (“the Act”), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (“the Department”) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting date.
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (“APO”) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 21 days of publication of the initiation
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department has found that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that, with regard to reviews requested on the basis of anniversary months on or after August 2013, the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance has prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis.
The Department is providing this notice on its Web site, as well as in its “Opportunity to Request Administrative Review” notices, so that interested parties will be aware of the manner in which the Department intends to exercise its discretion in the future.
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters.
Please note that, for any party the Department was unable to locate in prior segments, the Department will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).
As explained in
All requests must be filed electronically in Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”) on the IA ACCESS Web site
The Department will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the period of review.
This notice is not required by statute but is published as a service to the international trading community.
Import Administration, International Trade Administration, Department of Commerce.
Every five years, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) and the International Trade Commission automatically initiate and conduct a review to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
The following Sunset Reviews are scheduled for initiation in September 2013 and will appear in that month's Notice of Initiation of Five-Year Sunset Review (“Sunset Review”).
No Sunset Review of countervailing duty orders is scheduled for initiation in September 2013.
No Sunset Review of suspended investigations is scheduled for initiation in September 2013.
The Department's procedures for the conduct of Sunset Reviews are set forth in 19 CFR 351.218. Guidance on methodological or analytical issues relevant to the Department's conduct of Sunset Reviews is set forth in the Department's Policy Bulletin 98.3—
Pursuant to 19 CFR 351.103(c), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Please note that if the Department receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue. Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation.
This notice is not required by statute but is published as a service to the international trading community.
Import Administration, International Trade Administration, Department of Commerce.
In accordance with section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) is automatically initiating five-year reviews (“Sunset Reviews”) of the antidumping and countervailing duty (“AD/CVD”) orders listed below. The International Trade Commission (“the Commission”) is publishing
The Department official identified in the
The Department's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with 19 CFR 351.218(c), we are initiating Sunset Reviews of the following antidumping duty orders:
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Department's regulations, the Department's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on the Department's Internet Web site at the following address: “
This notice serves as a reminder that any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
On April 10, 2013, the Department published
Pursuant to 19 CFR 351.103(d), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition
Because deadlines in Sunset Reviews can be very short, we urge interested parties to apply for access to proprietary information under administrative protective order (“APO”) immediately following publication in the
Domestic interested parties defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b) wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, the Department's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218 (c).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification of fee percentage.
NMFS publishes a notification of a 0.69-percent fee for cost recovery under the Bering Sea and Aleutian Islands Crab Rationalization Program. This action is intended to provide holders of crab allocations with the fee percentage for the 2013/2014 crab fishing year so they can calculate the required payment for cost recovery fees that must be submitted by July 31, 2014.
The Crab Rationalization Program Registered Crab Receiver permit holder is responsible for submitting the fee liability payment to NMFS on or before July 31, 2014.
Karen Palmigiano, 907–586–7228.
NMFS Alaska Region administers the Bering Sea and Aleutian Islands Crab Rationalization Program (Program) in the North Pacific. Fishing under the Program began on August 15, 2005. Regulations implementing the Program can be found at 50 CFR part 680.
The Program is a limited access system authorized by section 313(j) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Program includes a cost recovery provision to collect fees to recover the actual costs directly related to the management, data collection, and enforcement of the Program. NMFS developed the cost recovery provision to conform to statutory requirements and to partially reimburse the agency for the actual costs directly related to the management, data collection, and enforcement of the Program. Section 313(j) of the Magnuson-Stevens Act provided supplementary authority to section 304(d)(2)(A) and additional detail for cost recovery provisions specific to the Program. The cost recovery provision allows collection of 133 percent of the actual management, data collection, and enforcement costs up to 3 percent of the ex-vessel value of crab harvested under the Program. Additionally, section 313(j) requires the harvesting and processing sectors to each pay half the cost recovery fees. Catcher/processor quota share holders are required to pay the full fee percentage for crab processed at sea.
A crab allocation holder generally incurs a cost recovery fee liability for every pound of crab landed. The crab allocations include Individual Fishing Quota, Crew Individual Fishing Quota, Individual Processing Quota, Community Development Quota, and the Adak community allocation. The Registered Crab Receiver (RCR) permit holder must collect the fee liability from the crab allocation holder who is landing crab. Additionally, the RCR permit holder must collect his or her own fee liability for all crab delivered to the RCR. The RCR permit holder is responsible for submitting this payment to NMFS on or before the due date of July 31, in the year following the crab fishing year in which landings of crab were made.
The dollar amount of the fee due is determined by multiplying the fee percentage (not to exceed three percent) by the ex-vessel value of crab debited from the allocation. Specific details on the Program's cost recovery provision may be found in the implementing regulations at 50 CFR 680.44.
Each year, NMFS calculates and publishes in the
Using this fee percentage formula, the estimated percentage of costs to value for the 2012/2013 fishery was 0.69 percent. Therefore, the fee percentage will be 0.69 percent for the 2013/2014 crab fishing year.
16 U.S.C. 1862; Pub. L. 109–241; Pub. L. 109–479.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of correction to a public scoping meeting.
The Caribbean Fishery Management Council will hold scoping meetings to obtain input from fishers, the general public, and the local agencies representatives on the development of island-specific fishery management plans for Puerto Rico, St. Thomas/St. John, USVI and St. Croix, USVI.
Due to the tropical storm Chantel the scoping meetings in these locations could not be held. The rescheduled scoping meetings will be held on the following dates and locations:
Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918–1903, telephone: (787) 766–5926.
The original notice published in the
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau) is proposing a new information collection titled, “Evaluations of Financial Capability Programs for Economically-Vulnerable Consumers: Two Randomized Evaluations.”
Written comments are encouraged and must be received on or before September 30, 2013 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
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Documentation prepared in support of this information collection request is available at
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 13–30 with attached transmittal, and policy justification.
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The Government of the Republic of Korea (ROK) has requested a possible sale of 260 AIM–120C–7 Advanced Medium Range Air-to-Air Missiles (AMRAAM), containers, missile support and test equipment, provisioning, spare and repair parts, support equipment, personnel training and training equipment, publications and technical documentation, U.S. Government and contractor engineering and technical support, and other related elements of program support. The estimated cost is $452 million.
This proposed sale will contribute to the foreign policy goals and national security objectives of the United States by meeting the legitimate security and defense needs of an ally and partner nation. The ROK continues to be an important force for peace, political stability, and economic progress in North East Asia.. The proposed sale will provide the ROK with a contingency stock of AMRAAM AIM–120C–7 missiles to be used on its KF–16 and F–15K aircraft.
The proposed sale will provide the ROK with a credible defense capability to deter aggression in the region and ensure interoperability with U.S. forces. Additionally, operational control (OPCON) will transfer from US Forces Korea/Combined Forces Command (USFK/CFC) to the ROK's Korea Command (KORCOM) in 2015. This acquisition will enhance the capabilities needed to support the OPCON transfer.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal contractor will be Raytheon Missile Systems Company in Tucson, Arizona. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require multiple trips to Korea involving U.S. Government and contractor representatives for technical reviews/support, program management, and training over a period of eight years. U.S. contractor representatives will be required in the ROK to conduct modification kit installation, testing, and training.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
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 September 3, 2013.
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Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD Information Management Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350–3100.
Office of Fossil Energy, Department of Energy (DOE).
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during June 2013, it issued orders granting authority to import and export natural gas and to import liquefied natural gas. These orders are summarized in the attached appendix and may be found on the FE Web site at
Take notice that on July 23, 2013, Missouri River Energy Services, on behalf of itself and its member, City of Pella, Iowa, filed a petition for waiver of certain regulations of the Federal Energy Regulatory Commission (Commission), 18 CFR 292.303(a) and 292.303(b), implementing section 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA), as amended by the Energy Policy Act of 2005.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Comment Date: 5:00 p.m. Eastern Time on August 22, 2013.
Federal Communications Commission.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons that the Federal Communications Commission's (FCC or Commission) Communications Security, Reliability, and Interoperability Council (CSRIC) IV will hold its first meeting.
September 12, 2013.
Federal Communications Commission, Room TW–C305 (Commission Meeting Room), 445 12th Street SW., Washington, DC 20554.
Jeffery Goldthorp, Designated Federal
The meeting will be held on September 12, 2013, from 1:00 p.m. to 5:00 p.m. in the Commission Meeting Room of the Federal Communications Commission, Room TW–C305, 445 12th Street SW., Washington, DC 20554. The CSRIC is a Federal Advisory Committee that will provide recommendations to the FCC regarding best practices and actions the FCC can take to ensure the security, reliability, and interoperability of communications systems. On March 19, 2013, the FCC, pursuant to the Federal Advisory Committee Act, renewed the charter for the CSRIC for a period of two years through March 18, 2015. The meeting on September 12, 2013, will be the first meeting of the CSRIC under the current charter. The FCC will attempt to accommodate as many attendees as possible; however, admittance will be limited to seating availability. The Commission will provide audio and/or video coverage of the meeting over the Internet from the FCC's Web page at
Open captioning will be provided for this event. Other reasonable accommodations for people with disabilities are available upon request. Requests for such accommodations should be submitted via email to
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than August 16, 2013.
A. Federal Reserve Bank of Dallas (E. Ann Worthy, Vice President), 2200 North Pearl Street, Dallas, Texas 75201–2272:
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The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than August 26, 2013.
A. Federal Reserve Bank of Dallas (E. Ann Worthy, Vice President) 2200 North Pearl Street, Dallas, Texas 75201–2272:
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Federal Trade Commission (FTC or Commission).
Notice.
The FTC intends to ask the Office of Management and Budget (OMB) to extend through November 30, 2016, the current Paperwork Reduction Act (PRA) clearance for the FTC's shared enforcement with the Consumer Financial Protection Bureau (CFPB) of the information collection requirements in Regulation N (Mortgage Acts and Practices—Advertising). That clearance expires on November 30, 2013. The FTC's current PRA clearance (OMB Control Number 3084–0156) for Regulation N is under the FTC's Mortgage Acts and Practices—Advertising Rule, which was republished by the CFPB as Regulation N on December 16, 2011, and became effective December 30, 2011. The
Comments must be received by September 30, 2013.
Interested parties may file a comment online or on paper by following the instructions in the Request for Comments part of the
Requests for additional information should be addressed to Carole L. Reynolds, Attorney, Division of Financial Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580, (202) 326–3230.
Under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501–3520, federal agencies must get OMB approval for each collection of information they conduct, sponsor, or require. “Collection of information” means agency requests or requirements to submit reports, keep records, or provide information to a third party. 44 USC 3502(3); 5 CFR 1320.3(c). As required by section 3506(c)(2)(A) of the PRA, the FTC is providing this opportunity for public comment before requesting that OMB extend the existing PRA clearance for the information collection requirements associated with the CFPB's Regulation N (Mortgage Acts and Practices—Advertising), 12 CFR 1014.
The FTC invites comments on: (1) 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) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond. All comments must be received on or before September 30, 2013.
The FTC's Mortgage Acts and Practices—Advertising Rule, 16 CFR 321, was issued by the FTC on July 19, 2011, at
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act)
Regulation N's recordkeeping requirements constitute a “collection of information”
Regulation N requires covered persons to retain: (1) Copies of materially different commercial communications and related materials, regarding any term of any mortgage credit product, that the person made or disseminated during the relevant time period; (2) documents describing or evidencing all mortgage credit products available to consumers during the relevant time period; and (3) documents describing or evidencing all additional products or services (such as credit insurance or credit disability insurance) that are or may be offered or provided with the mortgage credit products available to consumers during the relevant time period. A failure to keep such records would be an independent violation of the Rule.
Commission staff believes these recordkeeping requirements pertain to records that are usual and customary and kept in the ordinary course of business for many covered persons, such as mortgage brokers, lenders, and servicers.
The information retained under the Rule's recordkeeping requirements is used by the Commission to substantiate compliance with the Rule and may also provide a basis for the Commission to bring an enforcement action. Without the required records, it would be difficult either to ensure that entities are complying with the Rule's requirements or to bring enforcement actions based on violations of the Rule.
Commission staff estimates that the Rule's recordkeeping requirements will affect approximately 1.2 million persons
Commission staff derived labor costs by applying appropriate hourly cost figures to the burden hours described above. Staff further assumes that office support file clerks will handle the Rule's record retention requirements at an hourly rate of $13.48.
Absent information to the contrary, staff anticipates that existing storage media and equipment that covered persons use in the ordinary course of business will satisfactorily accommodate incremental recordkeeping under the Rule. Accordingly, staff does not anticipate that the Rule will require any new capital or other non-labor expenditures.
You can file a comment online or on paper. Write “Regulation N: FTC File No. P134811; K05” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include “[t]rade secret or any commercial or financial information which is . . . privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c). Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest.
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, the Commission encourages you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Regulation N: FTC File No. P134811; K05” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, Room H–113 (Annex J), 600 Pennsylvania Avenue NW., Washington, DC 20580. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
Federal Trade Commission (“Commission” or “FTC”).
Notice.
The FTC intends to conduct a preliminary and exploratory study on consumer susceptibility to fraudulent and deceptive marketing. This research will be conducted to further the FTC's mission of protecting consumers from unfair and deceptive practices. The information collection requirements described below are being submitted to the Office of Management and Budget (“OMB”) for review, as required by the Paperwork Reduction Act (“PRA”).
Comments must be submitted on or before September 3, 2013.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment sub-part of the
Requests for additional information should be addressed to Keith B. Anderson, Economist, Bureau of Economics, Federal Trade Commission, 600 Pennsylvania Avenue NW., Mail Stop NJ–4136, Washington, DC 20580. Telephone: (202) 326–3428.
As part of its consumer protection mission, the FTC has brought hundreds of cases against consumer fraud and has committed significant resources to educating consumers to avoid such frauds. To ensure that its anti-fraud efforts are as effective as possible, the Commission seeks to better understand what makes some consumers more susceptible to becoming fraud victims. The Commission has conducted several previous studies that, in whole or in part, examined this issue.
Understanding when and why people are vulnerable to fraud would better inform the FTC's ongoing efforts to fight fraud through law enforcement and consumer education. The study is not intended to lead to enforcement actions; rather, study results should help the Commission better target its enforcement actions and consumer education initiatives. Understanding why some consumers are more vulnerable to fraud may allow the Commission to improve its consumer education materials to address specific vulnerabilities, more efficiently target our education materials to particularly vulnerable populations, and adapt disclosures to address critical vulnerabilities that lead to fraud victimization.
Under the PRA, 44 U.S.C. 3501–3521, federal agencies must get OMB approval for each collection of information they conduct or sponsor. “Collection of information” means agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. 44 U.S.C. 3502(3), 5 CFR 1320.3(c).
On June 11, 2009, the FTC sought public comment on the information collection requirements associated with the proposed study.
As required by section 3506(c)(2)(A) of the PRA, the FTC is providing this opportunity for public comment while pursuing OMB approval for the study.
The FTC proposes to use a private survey firm's panel of consumers who have agreed to complete online surveys and will obtain responses from 5,000 members of the contractor's panel. The proposed study is a limited but focused exploration of the determinants of fraud susceptibility. The study focuses on individual traits and behaviors that may contribute to fraud susceptibility. Given the convenience sample, we do not intend to make population-wide projections from our results. Further, the study is intended to focus on individuals' traits and not on the characteristics of advertisements that contribute to fraud susceptibility.
Participants in the study will first be shown two advertisements and will be asked to evaluate the credibility of the ads. Participants will also be asked to indicate how likely they would be to purchase the product if it was a real product and how likely they would be to recommend the product to friends. Understanding the variation in participants' responses to these questions will be the key focus of the analysis in the study.
The two ads shown to each participant will be drawn from a set of six ads. The ads will be for three types of products or services—a diet product or plan, a job offer, and a vacation. For each of the three products, there will be two ads—one that contains claims that are implausible and likely fraudulent, and one that contains only plausible claims. Participants will be shown advertisements for two of the three products. The advertisement for one of the products shown to each participant will be a fraudulent version; the other may be either fraudulent or plausible.
Participants will also be asked questions designed to learn whether they have been a victim of weight-loss, business-opportunity, or work-at-home frauds. These types of fraud are obviously related to the advertisements participants will have evaluated—specifically, the weight-loss and job ads. The responses to these questions can serve both as the focus of an alternative analysis and also to see whether those who find the fraudulent ads to be more credible are more likely to have been victimized in the past.
The survey will also collect information on the participant's personal characteristics and behavior. Responses to these questions will be examined to see whether they are correlated with the ad credibility ratings. These variables will include, for example, whether the person is impulsive or willing to wait, and whether the person is willing to take risks. Questions designed to measure how skeptical a person is of claims made in advertisements, both generally and in specific settings, and the participant's knowledge of how markets work—consumer literacy—are also included. Participants will also be asked questions designed to provide some information on how interested the person would be in the products that are the subject of the ads presented in the first section of the study. The study also asks for demographic information.
The FTC plans to seek information from 100 participants in the pre-test phase and 5,000 participants in the final data collection phase. For those who participate in the final data collection phase, the time to complete the survey is estimated at 30 minutes. An additional 5 minutes may be needed to complete the pre-test version. Thus, the overall burden for this study will be approximately 2,558 hours—2,500 hours for the 5,000 who participate in
The cost per respondent should be negligible. Participation is voluntary, and will not require any labor expenditures by respondents. There are no capital, start up, operation, maintenance, or other similar costs to the respondents.
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before September 3, 2013. Write “Fraud Susceptibility Internet Panel Study, FTC File No. P095500” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential,” as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Fraud Susceptibility Internet Panel Study, FTC File No. P095500” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, Room H–113 (Annex J), 600 Pennsylvania Avenue NW., Washington, DC 20580. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The FTC invites comments on: (1) 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) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information.
Comments on the information collection requirements subject to review under the PRA should additionally be submitted to OMB. If sent by U.S. mail, they should be addressed to Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission, New Executive Office Building, Docket Library, Room 10102, 725 17th Street NW., Washington, DC 20503. Comments sent to OMB by U.S. postal mail, however, are subject to delays due to heightened security precautions. Thus, comments instead should be sent by facsimile to (202) 395–5167.
Office of the Secretary, HHS.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). The ICR is for revision of a previously-approved information collection assigned OMB control number 0937–0025, which expired on 08/31/2013. Prior to submitting that ICR to OMB, OS seeks comments from the public regarding the burden estimate below or any other aspect of the ICR.
Comments on the ICR must be received on or before September 30, 2013.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the document identifier HHS–OS–20165–60D for reference. Information Collection Request Title: Application for
The Office of the Secretary (OS), Department of Health and Human Services specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
National Vaccine Program Office, Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
The National Vaccine Advisory Committee (NVAC) was established in 1987 to comply with Title XXI of the Public Health Service Act (Pub. L. 99–660) (§ 2105) (42 U.S. Code 300aa–5 (PDF–78 KB)). Its purpose is to advise and make recommendations to the Director of the National Vaccine Program on matters related to program responsibilities. The Assistant Secretary for Health (ASH) has been designated by the Secretary of Health and Human Services (HHS) as the Director of the National Vaccine Program.
The ASH charged the NVAC with reviewing the role of HHS in global vaccination, the effects of global vaccination on global populations, the effects of global vaccination on U.S. populations, and recommending how HHS can best continue to contribute, consistent with its newly established Global Health Strategy and Goal 5 of the National Vaccine Plan. The NVAC was also asked to make recommendations on how to best communicate this information to decision makers and the general public to ensure continued sufficient resources for the global vaccination efforts. The NVAC established the Global Immunizations Working Group to assist in addressing these charges.
A draft report and draft recommendations have been developed by the working group for consideration by the NVAC and will be deliberated on by the NVAC when developing NVAC's final recommendations to the ASH. The National Vaccine Program Office (NVPO) is soliciting public comment on the draft report and draft recommendations from a variety of stakeholders, including the general public, for consideration by the NVAC as they develop their final recommendations to the ASH. It is anticipated that the draft report and draft recommendations, as revised with consideration given to public comment
Comments for consideration by the NVAC should be received no later than 5:00 p.m. EDT on August 16, 2013.
(1) The draft report and draft recommendations are available on the web at
(2) Electronic responses are preferred and may be addressed to:
(3) Written responses should be addressed to: National Vaccine Program Office, U.S. Department of Health and Human Services, 200 Independence Avenue SW., Room 733G, Washington, DC 20201. Attn: HHS Global Immunizations c/o Dr. Jennifer Gordon.
Jennifer Gordon, Ph.D., National Vaccine Program Office, Office of the Assistant Secretary for Health, Department of Health and Human Services; telephone (202) 260–6619; fax (202) 260–1165; email:
The National Vaccine Program Office (NVPO) is located within the Office of the Assistant Secretary for Health (OASH), Office of the Secretary, U.S. Department of Health and Human Services (HHS). NVPO provides leadership and fosters collaboration among the various Federal agencies involved in vaccine and immunization activities. These coordinated efforts are aimed to achieve the strategic goals outlined in the National Vaccine Plan. The National Vaccine Plan provides a framework, including goals, objectives, and strategies, for pursuing the prevention of infectious diseases through immunizations. The NVPO also supports the National Vaccine Advisory Committee (NVAC). The NVAC advises and makes recommendations to the Assistant Secretary for Health in his capacity as the Director of National Vaccine Program on matters related to vaccine program responsibilities.
Global immunization efforts save millions of lives every year and are deemed one of the most cost-effective strategies in public health. The global health community has the potential to substantially reduce childhood mortality and alleviate the economic and societal burdens vaccine preventable diseases impose on nations through immunization. However, continued efforts are needed to strengthen and optimize routine immunization systems to ensure the full benefits of immunization are extended to all people, regardless of where they are born, who they are, or where they live.
Global immunization efforts are also important to protecting the health and economic investments of the U.S. Globalization, frequent travel, and the ongoing threat of disease outbreaks due to importations of infectious diseases bring global health to the forefront of HHS efforts to protect the health and well-being of Americans as well as populations across the globe. This is reflected in the Secretary's 2010–2015 HHS Strategy, the HHS Global Health Strategy, the 2010 National Vaccine Plan, and a number of strategic plans specific to the individual HHS agencies and offices.
Through a series of teleconferences and electronic communications, the NVAC Global Immunizations working group identified a number of draft recommendations that fell into six priority areas, which represent both opportunities for improving global immunizations, as well as areas that will benefit the most from continued and enhanced HHS participation. These priority areas include:
1. Tackling time-limited opportunities to complete polio eradication and to advance measles mortality reduction and regional measles/rubella elimination goals
2. Strengthening Global Immunization Systems
3. Enhancing Global Capacity for Vaccine Safety Monitoring and Post-Marketing Surveillance
4. Building Global Immunization Research and Development Capacity
5. Strengthening Capacity for Vaccine Policy and Decision Making
6. HHS Leadership and Coordination.
The NVAC draft report details the background and rationale for each of the recommendations, how HHS is currently contributing to these global efforts, and how the ASH can support and further HHS activities in these areas. The NVAC intends for the recommendations to serve as a potential roadmap for better coordination and tracking of HHS global immunization efforts. The continued participation of HHS in the six priority areas identified by NVAC will make certain that global immunizations remain at the forefront of HHS global health priorities.
NVPO, on behalf of the NVAC Global Immunizations Working Group, requests input on the draft report and draft recommendations. In addition to general comments on the draft report and draft recommendations, NVPO is seeking input on activities not represented in the report where HHS efforts can offer a comparative advantage or where HHS efforts could enhance other USG efforts in alignment with the HHS Global Health Strategy and the National Vaccine Plan. Please limit your comments to six (6) pages.
HHS invites input from a broad range of stakeholders including individuals and organizations that have interests in global immunization efforts and the role of HHS in enhancing those efforts.
Examples of potential responders include, but are not limited to, the following:
When responding, please self-identify with any of the above or other categories (include all that apply) and your name. Anonymous submissions will not be considered. Written submissions should not exceed six pages. Please do not send proprietary, commercial, financial, business, confidential, trade secret, or personal information.
National Vaccine Program Office, Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
The National Vaccine Advisory Committee (NVAC) was established in 1987 to comply with Title XXI of the Public Health Service Act (Pub. L. 99–660) (§ 2105) (42 U.S. Code 300aa–5 (PDF–78 KB)). Its purpose is to advise and make recommendations to
To receive consideration, comments should be received no later than 5:00 p.m. EST on August 16, 2013.
1. The draft report is available on the web at:
2. Electronic responses are preferred and may be addressed to
3. Written responses should be addressed to: National Vaccine Program Office, U.S. Department of Health and Human Services, 200 Independence Ave. SW., Room 745.H.5, Washington, DC 20201, Attention: Adult Immunization Standards, c/o Shary Jones.
Shary Jones, PharmD, MPH, National Vaccine Program Office, U.S. Department of Health and Human Services, Hubert H. Humphrey Building, 200 Independence Ave. SW., Room 745H.5, Washington, DC 20201, Attention: National Adult Immunization Standards, telephone (202) 205–4862, fax (202) 260–1165, email:
August is National Immunization Awareness Month and while the United States has made significant progress toward eliminating vaccine-preventable diseases among children, unacceptably low immunization rates still exist among many adults. Many adults are aware of annual influenza vaccination, but fewer are aware of other recommended adult vaccines. Additionally, there are many types of immunization providers and sites, as well as many missed opportunities occurring to assess patient vaccination needs. An updated version of the National Adult Immunization Standards provides a framework with the purpose of collaboration, coordination, and communication among immunization stakeholders dedicated to meeting the immunization needs of the patient and protecting the community from vaccine preventable diseases.
NVPO, on behalf of the NVAC, requests input on the draft report located on the NVAC Web site at
The Department of Health and Human Services invites input from a broad range of individuals and organizations that have interests in adult immunizations and ways to increase vaccine coverage in adults. Examples of potential responders include, but are not limited to the following:
When responding, please self-identify with any of the above or other categories (include all that apply) and your name. All comments submitted will be publicly available. Anonymous submissions will not be considered and will not be posted.
Written submission should not exceed 6 pages. Any information submitted will be made public. Consequently, do not send proprietary, commercial, financial, business, confidential, trade secret, or personal information that you do not wish to be made public.
Office of the Assistant Secretary for Planning and Evaluation, Department of Health and Human Services.
Request for nominations.
HHS is soliciting nominations for six non-Federal members of the Advisory Council on Alzheimer's Research, Care, and Services. The six positions are for each of the following categories, as specified in the National Alzheimer's Project Act: Alzheimer's patient advocate, Alzheimer's caregiver, health care provider, representative of state health department, researcher with Alzheimer's-related expertise, and voluntary health association representative. Nominations should include the nominee's contact information (current mailing address, email address, and telephone number) and current curriculum vitae or resume.
Submit nominations by email or FedEx or UPS before COB on August 16, 2013.
Nominations should be sent to Helen Lamont at
Helen Lamont (202) 690–7996,
The Advisory Council on Alzheimer's Research, Care, and Services meets quarterly to discuss programs that impact people with Alzheimer's disease and related dementias and their caregivers. The Advisory Council makes recommendations about ways to reduce the financial impact of Alzheimer's disease and related dementias and to improve the health outcomes of people with these conditions. The Advisory Council provides feedback on the National Plan to Address Alzheimer's Disease. On an annual basis, the Advisory Council shall evaluate the implementation of the recommendations through an updated national plan.
The Advisory Council consists of designees from Federal agencies including the Centers for Disease
Health Resources and Services Administration, HHS.
Notice.
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Health Resources and Services Administration (HRSA) has submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period.
Comments on this ICR should be received within 30 days of this notice.
Submit your comments, including the Information Collection Request Title, to the desk officer for HRSA, either by email to
To request a copy of the clearance requests submitted to OMB for review, email the HRSA Information Collection Clearance Officer at
OMB No. 0915–xxxx NEW.
Health Resources and Services Administration, HHS.
Notice.
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Health Resources and Services Administration (HRSA) has submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period.
Comments on this ICR should be received within 30 days of this notice.
Submit your comments, including the Information Collection Request Title, to the desk officer for HRSA, either by email to
To request a copy of the clearance requests submitted to OMB for review, email the HRSA Information Collection Clearance Officer at
The CHGME Payment Program statute Public Law 109–307 requires that CHGME-participating hospitals provide information about their residency training programs in an annual report to HRSA that will be an addendum to the hospitals' annual applications for funds.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of 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.
National Institutes of Health, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209 and 37 CFR 404, that the National Institutes of Health (NIH), Department of Health and Human Services, is contemplating the grant of a start-up exclusive license to practice the inventions embodied in: US provisional application No. 61/116,563, filed November 20, 2008, PCT application No. PCT/US2009/65382, filed November 20, 2009; and corresponding National Phase filings in the US, EP, AU, CA, IL, JP and HK (NIH Ref. E–157–2008/0), titled “Compositions for Detecting Human Interferon-Alpha Subtypes and Methods of Use”, to IES Diagnostics, LLC having a place of business at 12 Upper Drive, Watchung, NJ 07069. The patent rights in these inventions have been assigned to the United States of America.
Only written comments and/or application for a license that are received by the NIH Office of Technology Transfer on or before August 16, 2013 will be considered.
Requests for a copy of the patent application, inquiries, comments and other materials relating to the contemplated license should be directed to: Cristina Thalhammer-Reyero, Ph.D., M.B.A., Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852–3804; Email:
The prospective start-up exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR part 404. The prospective exclusive license may be granted unless, within fifteen (15) days from the date of this published Notice, NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.
This technology relates to use of kits for the detection of human interferon-alpha subtypes and allotypes.
The proposed field of exclusivity may be limited to the commercialization of the kits for diagnostic and prognostic uses that are regulated by the FDA or equivalent agencies in other countries.
Properly filed competing applications for a license filed in response to this notice will be treated as objections to the contemplated license. Comments and objections submitted in response to this notice will not be made available for public inspection, and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
National Institutes of Health, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209 and 37 CFR part 404, that the National Institutes of Health (NIH), Department of Health and Human Services, is contemplating the grant of a start-up exclusive license to practice the inventions embodied in: US provisional Applications 61/639,688 (E–294–2011/0–US–01) filed April 27, 2012 and PCT application PCT/US2013034639 (E–294–2011/0–PCT–02) filed March 29, 2013, each entitled “Topical Antibiotic with Immune Stimulating oligodeoxynucleotide Molecules to Speed Wound Healing” and US application 12/205,756 (E–328–2001/1–US–01) filed September 2008 and issued as US patent 8,466,116, each entitled “Use of CpG Oligodeoxynucleotides to Induce Epithelial Cell Growth” to Tollgene having a place of business at 2429 Ginny Way, Lafayette, CO 80026. The patent rights in these inventions have been assigned to the United States of America.
Only written comments and/or application for a license that are received by the NIH Office of Technology Transfer on or before August 16, 2013 will be considered.
Requests for a copy of the patent application, inquiries, comments and other materials relating to the contemplated license should be directed to: Tedd Fenn, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852–3804; Email:
The prospective start-up exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404. The prospective exclusive license may be granted unless, within fifteen (15) days from the date of this published Notice, NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.
These technologies relate to relate to use of CpG oligodeoxynucleotides (ODNs) to accelerate wound healing. The E–294–2011/0, technology relates to an antibiotic composition containing the toll-like receptor-7 (TLR7) ligand (imidazoquinoline) and an immunostimulatory K ODN. There is evidence that this formulation may produce more rapid wound healing versus standard antibiotic formulations. Because standard antibiotics eliminate bacteria at a wound site, they also eliminate the molecular signals present in bacterial DNA that stimulate the immune system's wound healing processes. The ODN and imidazoquinoline act as artificial immune stimulants that mimic the bacterial signals to improve healing rates. The E–328–2001/1 technology relates to a method of inducing epithelial cell growth by administration of immunostimulatory ODNs. The stimulation of epithelial cell growth also promotes wound healing.
The proposed field of exclusivity may be limited to human and veterinary therapeutics for treatment of wounds.
Properly filed competing applications for a license filed in response to this notice will be treated as objections to the contemplated license. Comments and objections submitted in response to this notice will not be made available for public inspection, and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Transportation Security Administration, DHS.
30-day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652–0013, abstracted below to OMB for review and approval of an extension of the currently approved collection under the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by September 3, 2013. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Susan L. Perkins, TSA PRA Officer, Office of Information Technology (OIT), TSA–11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598–6011; telephone (571) 227–3398; email
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
• Travel on weekdays or weekends;
• Travel in the morning, mid-day, or evening;
• Pass through each of the different security screening locations in the airport;
• Are subject to more intensive screening of their baggage or person; and
• Experience different volume conditions and wait times as they proceed through the security checkpoints.
The survey includes 10 to 15 questions. Each question promotes a quality response so that TSA can identify areas in need of improvement. All questions concern aspects of the passenger's security screening experience.
TSA intends to collect this information in order to continue to assess customer satisfaction in an effort to more efficiently manage its security screening performance at airports. In its future surveys, TSA wishes to obtain more detailed, airport-specific data that TSA can use to enhance customer experiences and its performance at specific airports. In order to gain more detailed information regarding customer experiences, TSA is submitting 84 questions to OMB for approval. Eighty-one questions have been previously approved by OMB and three questions are being submitted to OMB for the first time. The new questions will allow TSA to better measure customer satisfaction with Risk-Based Security, an effort to focus TSA resources and improve the passenger experience at security checkpoints by applying new intelligence-driven, risk-based screening procedures and enhancing the use of technology. Since there are some passengers who present a low level of risk, Risk-Based Security allows TSA to focus resources on higher-risk or unknown travelers, thereby increasing the level of security. Each survey question seeks to gain information regarding one of the following categories:
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation of SGS North America, Inc., as a commercial laboratory.
Notice is hereby given, pursuant to CBP regulations, that SGS North America, Inc., has been accredited to test petroleum, petroleum products, organic chemicals and vegetable oils for customs purposes for the next three years as of April 19, 2013.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202–344–1060.
Notice is hereby given pursuant to 19 CFR 151.12, that SGS North America, Inc., 101 Corporate Pl, Vallejo, CA 94590, has been accredited to test petroleum, petroleum products, organic chemicals and vegetable oils for customs purposes, in accordance with the provisions of 19 CFR 151.12. Anyone wishing to employ this entity to conduct laboratory analyses should request and receive written assurances from the entity that
Office of the Secretary, Interior.
Notice of meeting.
The Office of the Secretary is announcing that the Secretarial Commission on Indian Trust Administration and Reform (the Commission) will hold a public meeting on August 19, 2013. During the public meeting, the Commission will: attend to operational activities of the Commission; gain insights and knowledge from invited speakers and attendees about the trust relationship, other trust models, and trust reform, and aspects of trust that are unique to Alaska; review Commission action items; and gain insights and perspectives from members of the public.
The Commission's public meeting will begin at 8:30 a.m. and end at 1 p.m. Alaska Daylight Time on August 19, 2013. Members of the public who wish to attend in person should RSVP by August 16, 2013, to:
The public meeting will be held at the Sheraton Anchorage Hotel & Spa, Kuskokwim Ballroom, 401 E. 6th Avenue, Anchorage, Alaska 99501. We encourage you to RSVP to
The Designated Federal Official, Sarah Harris, Chief of Staff to the Assistant Secretary-Indian Affairs, Department of the Interior, 1849 C Street NW., Room 4141, Washington, DC 20240; or email to
The Secretarial Commission on Indian Trust Administration and Reform was established under Secretarial Order No. 3292, dated December 8, 2009. The Commission plays a key role in the Department's ongoing efforts to empower Indian nations and strengthen nation-to-nation relationships.
The Commission will complete a comprehensive evaluation of the Department's management and administration of the trust assets within a two-year period and offer recommendations to the Secretary of the Interior of how to improve in the future. The Commission will:
(1) Conduct a comprehensive evaluation of the Department's management and administration of the trust administration system;
(2) Review the Department's provision of services to trust beneficiaries;
(3) Review input from the public, interested parties, and trust beneficiaries which should involve conducting a number of regional listening sessions;
(4) Consider the nature and scope of necessary audits of the Department's trust administration system;
(5) Recommend options to the Secretary to improve the Department's management and administration of the trust administration system based on information obtained from these Commission's activities, including whether any legislative or regulatory changes are necessary to permanently implement such improvements; and
(6) Consider the provisions of the American Indian Trust Fund Management Reform Act of 1994 providing for the termination of the Office of the Special Trustee for American Indians, and make recommendations to the Secretary regarding any such termination.
The Commission's purpose is to provide a thorough evaluation of the existing Indian trust management and Trust Administration System to support a reasoned and factually based set of options for potential management improvements. Grant Thornton LLP in partnership with Cherokee Services Group has been awarded a contract to perform a comprehensive evaluation of the Department's management of the Trust Administration System in support of the Commission's efforts.
The management consultant will be attending the upcoming Indian Trust Commission's meeting in Anchorage and will be available to speak with if you wish to provide input and recommendations. The Commission encourages individuals to take the opportunity to provide Grant Thornton with your perspective on how the trust administration system currently operates. To contact Grant Thornton directly, you may send an email to
On Monday, August 19, 2013, the Commission will hold a meeting open to the public. The following items will be on the agenda:
• Invocation;
• Welcome, introductions, agenda review;
• Remarks from Sarah Harris, Designated Federal Official;
• Commission Operations Reports and Decision Making
• Insights and lessons learned regarding trust responsibility, Alaska Native Claims Settlement Act (ANSCA) and the role of tribes going forward;
• Panel session regarding trust land and trust responsibility in Alaska;
• Review of draft recommendations of Commission and public comment;
• Review action items, meeting accomplishments; and
• Closing blessing, adjourn.
Written comments may be sent to the Designated Federal Official listed in the
U.S. Geological Survey (USGS), Interior.
Notice of an extension of a currently approved information collection (1028–0065).
We (the USGS) will ask the Office of Management and Budget (OMB) to approve the information collection request (ICR) described below. This collection consists of 2 forms. The collection is a revision with a title change because it includes the previous transfer of USGS Form 9–4142–Q to Information Collection 1028–0062. As required by the Paperwork Reduction Act (PRA) of 1995, and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this ICR. This collection is scheduled to expire on July 31, 2013.
To ensure that your comments on this IC are considered, we must receive them on or before September 3, 2013.
Please submit written comments on this information collection directly to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs, Attention: Desk Officer for the Department of the Interior via email: (
Shonta E. Osborne at 703–648–7960 (telephone);
This collection is needed to provide data on mineral production for annual reports published by commodity for use by Government agencies, Congressional offices, educational institutions, research organizations, financial institutions, consulting firms, industry, academia, and the general public. This information will be published in the “Mineral Commodity Summaries,” the first preliminary publication to furnish estimates covering the previous year's nonfuel mineral industry.
U.S. Geological Survey (USGS), Interior.
Notice of an extension of currently approved information Collection, 1028–0097.
To comply with the Paperwork Reduction Act of 1995 (PRA), the U.S. Geological Survey (USGS) is inviting comments on an information collection request (ICR) that we have sent to the Office of Management and Budget (OMB) for review and approval. The ICR concerns the paperwork requirements for the
Submit written comments by September 3, 2013.
Please submit written comments on this information collection directly to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs, Attention: Desk Officer for the Department of the Interior via email: (
The Water Resources Research Act of 1984, as amended (42 U.S.C. 10301 et seq.), authorizes a water resources research institute or center in each of the 50 states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, the Federated States of Micronesia, the Commonwealth of the Northern Marina Islands, and American Samoa. There are currently 54 such institutes, one in each state, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, and Guam. The institute in Guam is a regional institute serving Guam, the Federated States of Micronesia, and the Commonwealth of the Northern Mariana Islands. Each of the 54 institutes submits an annual application for an allotment grant and provides an annual report on its activities under the grant. The State Water Resources Research Institute Program issues an annual call for applications from the institutes to support plans to promote research, training, information dissemination, and other activities meeting the needs of the States and Nation. The program also encourages regional cooperation among institutes in research into areas of water management, development, and conservation that have a regional or national character.
The U.S. Geological Survey has been designated as the administrator of the provisions of the Act.
Please note that the comments submitted in response to this notice are a matter of public record. 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 OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
Bureau of Land Management, Interior.
Notice.
In accordance with the Federal Lands Recreation Enhancement Act (REA), the Bureau of Land Management (BLM), Roswell Field Office, has prepared and is making available to the public the Draft Rob Jaggers Camping Area Business Plan and Expanded Amenity Fee Schedule. The Rob Jaggers Camping Area is located in the Fort Stanton/Snowy River National Conservation Area, NM. The Act authorizes the BLM to charge fees at developed recreation sites that meet certain criteria.
To ensure that comments will be considered, the BLM must receive written comments on the Draft Business Plan by December 15, 2013.
Copies of the Draft Rob Jaggers Camping Area Business Plan are available at the BLM Pecos District Office, 2909 W 2nd St., Roswell NM 88201 or online at:
Christopher Brown, Roswell Field Office, telephone 575–627–0220 (7:45 a.m. to 4:30 p.m.), Monday through Friday; email
The Roswell Field Office (Field Office) has proposed an expanded amenity fee schedule for services at the Rob Jaggers Camping Area located at the Fort Stanton/Snowy River National Conservation Area. The REA requires
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 may 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.
The Federal Lands Recreation Enhancement Act 2005 as authorized under 16 U.S.C. 6801–6814.
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) announces that the Wild Horse and Burro Advisory Board will conduct a meeting that will provide an opportunity for the Advisory Board to attend presentations and engage with authors of the June 2013 National Research Council of the National Academies (NRC/NAS) Report entitled: “Using Science to Improve the WHB Program: A Way Forward.”
The Advisory Board will meet on Monday, September 9, 2013, from 1 p.m. until 5 p.m.; Tuesday, September 10, 2013, from 8 a.m. until 5 p.m.; and Wednesday, September 11, 2013, from 8 a.m. until noon. This will be a 3-day meeting.
This Advisory Board meeting will take place at the Key Bridge Marriott, 1401 Lee Highway, Arlington, VA 22209, 703–524–6400.
Written comments pertaining to the September 9–11, 2013, Advisory Board meeting can be mailed to National Wild Horse and Burro Program, WO–260, Attention: Ramona DeLorme, 1340 Financial Boulevard, Reno, NV 89502–7147, or sent electronically to
Ramona DeLorme, Wild Horse and Burro Administrative Assistant, at 775–861–6583. 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 the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The Wild Horse and Burro Advisory Board advises the Secretary of the Interior, the BLM Director, the Secretary of Agriculture, and the Chief of the Forest Service on matters pertaining to the management and protection of wild, free-roaming horses and burros on the Nation's public lands. The Wild Horse and Burro Advisory Board operates under the authority of 43 CFR 1784. The tentative agenda for the 3-day event is:
The meeting site is accessible to individuals with disabilities. An individual with a disability needing an auxiliary aid or service to participate in the meeting, such as an interpreting service, assistive listening device, or materials in an alternate format, must notify Ms. DeLorme 2 weeks before the scheduled meeting date. Although the BLM will attempt to meet a request received after that date, the requested auxiliary aid or service may not be available because of insufficient time to arrange it.
The Federal Advisory Committee Management Regulations at 41 CFR 101–6.1015(b), requires the BLM to publish in the
On Tuesday, September 10, 2013, at 3 p.m., members of the public will have the opportunity to make comments to the Board on the Wild Horse and Burro Program. Persons wishing to make comments during the Tuesday meeting should register in person with the BLM by 2 p.m. on September 10, 2013, at the meeting location. Depending on the number of commenters, the Advisory Board may limit the length of comments. At previous meetings, comments have been limited to 3 minutes in length; however, this time may vary. Commenters should address the specific wild horse and burro-related topics listed on the agenda. Speakers are requested to submit a written copy of their statement to the address listed in the
Participation in the Advisory Board meeting is not a prerequisite for submission of written comments. The BLM invites written comments from all interested parties. Your written comments should be specific and explain the reason for any recommendation. The BLM appreciates any and all comments. The BLM considers comments that are either supported by quantitative information or studies or those that include citations to and analysis of applicable laws and regulations to be the most useful and likely to influence the BLM's decisions on the management and protection of wild horses and burros.
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.
Bureau of Land Management, Interior.
Notice of Realty Action.
The Bureau of Land Management (BLM) proposes to sell a 5-acre public land parcel located in the southern portion of the Las Vegas Valley in Clark County, Nevada, under the authorities of Sections 203 of the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, and the BLM land sale conveyance regulations. In compliance with Section 7b of the Southern Nevada Public Land Management Act of 1998 (SNPLMA), the BLM proposes that the parcel be sold by direct sale to the Nevada Housing Division, a division of the State of Nevada, Department of Business and Industry, at a discounted rate based upon the appraised fair market value (FMV).
Comments regarding the proposed sale must be received by the BLM on or before September 16, 2013. The sale would not be held prior to September 30, 2013.
Written comments concerning the proposed sale are to be sent to the BLM Las Vegas Field Office, Assistant Field Manager, Division of Lands, 4701 N. Torrey Pines Drive, Las Vegas, NV 89130.
Michelle Leiber at 702–515–5168, or email at
The Nevada Housing Division submitted a sale nomination application to the BLM for the proposed affordable housing project called the Agate Avenue Senior Apartments. In response, the BLM proposes to sell a 5-acre parcel of public land located in the southern portion of the Las Vegas Valley in Clark County, Nevada, further described as:
The area described contains 5 acres, in Clark County, Nevada.
The parcel is identified as a portion of Clark County Assessor Parcel Number 177–20–601–003. A map delineating the parcel proposed for sale to the Nevada Housing Division is available for public review at the BLM Las Vegas Field Office or at the Web site
The BLM, in consultation with the Department of Housing and Urban Development (HUD), may make BLM-managed public lands available for affordable housing purposes in the State of Nevada at less than the appraised FMV. The amount administratively discounted from the FMV is calculated according to the Nevada Guidance provisions. Under Section 7(b) of the SNPLMA, housing is “affordable housing” if it serves low-income families as defined in Section 104 of the Cranston-Gonzales National Affordable Housing Act, 42 U.S.C. 12704. In the Cranston-Gonzales Act, the term “low-income families” means families whose incomes do not exceed 80 percent of the median income for the area as determined by HUD, or as otherwise adjusted by statute. The State of Nevada's proposed project would use 100 percent of the parcel to serve senior citizens, including seniors with special needs, with income at or below 60 percent of the area median income, which represents extremely low income based on the Nevada Guidance.
The appraised FMV for the 5-acre parcel is $1,040,000. Under the Nevada Guidance, and after consultation with HUD, the BLM authorized officer has determined that discount percentages for the respective median income category would be administratively applied to the FMV to establish the price of the public land to be sold under these provisions. The FMV for this property would be 95 percent discounted consistent with the Nevada Guidance resulting in a federally approved sale price of $52,000, so long as the property is used for affordable housing purposes consistent with the covenants, terms and conditions described in the patent.
Consistent with the Nevada Guidance, the preferred method of sale is direct sale. Such method is appropriate under regulation when “A tract is identified for transfer to State or local government . . .” (43 CFR 2711.3–3(1)), and the SNPLMA Section 7(b) which requires lands made available for affordable housing purposes to be made available only to State or local government entities, including local public housing authorities. The direct sale method is
The Clark County, North Las Vegas, Boulder City, and Mesquite 2010–2014 HUD Consolidated Plan identified both rental housing serving low-income and extremely low-income households and housing for persons with special needs, including the elderly and frail elderly, as its top two priorities. The consolidated plan identifies a significant housing need for elderly persons including those with special needs and physically disabled in southern Nevada. Since the SNPLMA was passed in 1998, the State of Nevada has invested considerable time and substantial resources in finding eligible properties for affordable housing projects. Consistent with the SNPLMA joint selection process, the Nevada Housing Division consulted with the BLM and Clark County concerning selection of this parcel for disposal for affordable housing purposes. According to the consolidated plan, the need for affordable housing is an issue of public importance and this tract of land would provide a key piece of a project meant to address that need.
The Nevada Housing Division's application includes a comprehensive plan for assessment and evaluation of the need for and the feasibility of this affordable housing project. HUD, a required consultation party for sales proposed under the SNPLMA Section 7(b), reviewed the Agate Project and provided the BLM its approval recommendation dated May 28, 2013. HUD's recommendation confirmed that the Agate Project as proposed would use 100 percent of the parcel to serve senior citizens, including seniors with special needs, with income at or below 60 percent of the area median income. HUD further confirmed that the Agate Project location and need are consistent with Section 7(b) of SNPLMA, and the Cranston-Gonzales Act, as well as the 2010–2014 Clark County Consolidated Plan. HUD conditioned its approval recommendation on two continuing requirements: (1) The Nevada Housing Division and Clark County, as appropriate, are to report the proposed Agate Project, including public and private funding sources, in HUD required documents and plans; and (2) Submittal by the Nevada Housing Division of a disposition and development agreement (DDA) and final site plan to the BLM for review and concurrence in consultation with HUD. A DDA will be executed between the Nevada Housing Division and its co-developers, Ovation Development Corporation, and Accessible Space, Inc., to ensure that the terms and conditions for development of the project are consistent with previously submitted comprehensive plan and other applicable regulations and procedures.
The parcel is within the disposal boundary identified by the U.S. Congress in the SNPLMA, and is in conformance with the BLM Las Vegas Resource Management Plan (RMP) and decision LD–1, approved by Record of Decision on October 5, 1998. The parcel was also analyzed in the Las Vegas Valley Disposal Boundary Final Environmental Impact Statement and approved by Record of Decision on December 23, 2004. The BLM has completed a site specific Determination of National Environmental Act Adequacy document number DOI–BLM–NV–S010–2012–0144–DNA. The parcel is not required for any Federal purpose. Consistent with 43 CFR 2711.3–1(d), a deposit of not less than 20 percent of the federally approved sale price, as discounted consistent with the Nevada Guidance, must be submitted on or before 30 days from the sale offer, by 4:00 p.m. Pacific Time at the BLM Las Vegas Field Office. Payment(s) will reference BLM serial number N–91073, and must be made in the form of certified check, postal money order, bank draft, cashier's check, or any combination thereof, made payable in U.S. dollars to the order of the Department of the Interior, Bureau of Land Management (or DOI, BLM).
Failure to submit the deposit will result in forfeiture of the sale offer. The remainder of the sale price must be paid within 180 days following the date of the sale offer. Failure to pay the full price within the 180 days will disqualify the sale offer and cause the entire 20 percent deposit to be forfeited to the BLM, 43 CFR 2711.3–1(d) and 2711.3–3(d). No exceptions will be made. The BLM cannot accept the full sale price at any time following the expiration of the 180th day after the sale offer. Payment may be provided electronically through escrow by Electronic Fund Transfer (EFT), or in the form of a certified check, postal money order, bank draft, cashier's check, or any combination thereof, made payable in U.S. dollars to the order of the DOI, BLM. Arrangements for EFT through escrow to the BLM shall be made a minimum of 14 days prior to the date of payment. The patent would be issued following receipt of final payment, as appropriate.
If patented, the patent will include the following numbered terms, covenants, and conditions:
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No representation or warranty of any kind, express or implied, is given or will be given by the United States as to the title, the physical condition or the past, present, or potential uses of the land proposed for sale. However, to the extent required by law, such land is subject to the requirements of Section 120(h) of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), as amended (42 U.S.C. 9620(h)).
If patented, title to the land will be subject to the following numbered reservations to the United States:
1. All minerals are reserved to the United States. Permittees, licensees, and lessees of the United States retain the right to prospect for, mine, and remove such leasable and saleable minerals owned by the United States under applicable law and any regulations that the Secretary of the Interior may prescribe, together with all necessary access and exit rights;
2. A right-of-way for ditches or canals constructed by the authority of the United States pursuant to the Act of August 30, 1890 (26 Stat. 391, 43 U.S.C. 945); and
3. A reversionary interest as further defined in the above terms, covenants, and conditions.
If patented, title to the land will be subject to:
1. Valid existing rights [of record], including, but not limited to those documented on the BLM public land records at the time of sale and as defined below;
2. A right-of-way for public county road (Agate Avenue) purposes reserved to Clark County, its successors and assigns, by right-of-way number N–59284, pursuant to Title V of the Act of October 21, 1976 (90 Stat. 2776; 43 U.S.C. 1761);
3. A right-of-way for flood control (#00–29559) purposes reserved to Clark County, its successors and assigns, by right-of-way number N–73298, pursuant to Title V of the Act of October 21, 1976 (90 Stat. 2776; 43 U.S.C. 1761);
4. A right-of-way for sanitary sewer pipeline purposes reserved to the Clark County Water Reclamation District, its successors and assigns, by right-of-way numbers N–61105 and N–61394, pursuant to Title V of the Act of October 21, 1976 (90 Stat. 2776; 43 U.S.C. 1761); and
5. A right-of-way for water pipeline purposes reserved to the Las Vegas Valley Water District, its successors and assigns, by right-of-way number N–61409, pursuant to Title V of the Act of October 21, 1976 (90 Stat. 2776; 43 U.S.C. 1761).
Pursuant to Section 4(c) of the SNPLMA, subject to valid existing rights, the subject land is withdrawn from location and entry under the mining laws and from operation under the mineral and geothermal leasing laws until Secretarial termination of the withdrawal or patenting of the land. Such withdrawal is documented under case file number N–66364, effective as
Documents concerning the sale, appraisal, reservations, procedures, and conditions, and other environmental review are available for review at the BLM Las Vegas Field Office at the address in the
Any adverse comments regarding the proposed sale will be reviewed by the BLM Nevada State Director, or other authorized official of the Department of the Interior, who may sustain, vacate, or modify this realty action. In the absence of any adverse comments, this realty action will become the final determination of the Department of the Interior.
43 CFR 2711.1–2.
Bureau of Land Management, Interior.
Notice.
This notice publishes the legal description of the boundaries of the Federal lands to be held by the Secretary of the Interior in trust for the benefit of the Pechanga Band of Luiseño Mission Indians of the State of California and the Federal lands transferred to San Diego Gas & Electric Company as mandated by Congress in Section 2(f) of the Pechanga Band of Luiseño Mission Indians Land Transfer Act of 2007.
A copy of the plats may be obtained from the California State Office, Bureau of Land Management, 2800 Cottage Way, Sacramento, CA 95825, upon required payment.
Chief, Branch of Geographic Services, Bureau of Land Management, California State Office, 2800 Cottage Way, Room W–1623, Sacramento, CA 95825, 916–978–4310.
Pursuant to the provisions of Section 2 of Public Law 110–383, dated October 10, 2008, and the approval of the survey completed under subsection (c) by the duly elected tribal council of the Pechanga Band of Luiseño Mission Indians, and subject to valid existing rights, all right, title, and interest of the United States in the land transferred into trust and held by the Secretary of the Interior for the benefit of the Pechanga Band of Luiseño Mission Indians of California and as part of the Pechanga Indian Reservation, is described as follows:
Per official plat accepted January 6, 2011.
Per official plat accepted July 12, 2010.
Per official plat accepted June 29, 1994.
The areas described aggregate 1,166.87 acres.
Pursuant to the provisions of Section 2 of Public Law 110–383, dated October 10, 2008 the lands transferred to San Diego Gas & Electric Company by Patent Number 04–2010–0012 (July 23, 2010) are described as follows:
Per official plat accepted July 12, 2010.
The area described contains 11.04 acres.
Public Law 110–383, 122 STAT. 4090–4093.
National Park Service, Interior.
Notice of availability.
The National Park Service (NPS) announces the availability of the Draft White-tailed Deer Management Plan/Environmental Impact Statement (Plan/EIS), Cuyahoga Valley National Park (Park), Ohio.
The Draft Plan/EIS will remain available for public review and comment for 60 days following the publishing of the Notice of Availability in the
Copies of the Draft Plan/EIS may be picked up in-person or may be obtained by making a request in writing to Cuyahoga Valley National Park, 15610 Vaughn Road, Brecksville, Ohio 44141. A limited number of hard-copies will be available at the Park. The document is also available on the internet at the NPS Planning, Environment, and Public Comment Web site at:
Chief of the Resource Management Division Lisa Petit at the address above, or by telephone at (440) 546–5903.
The Draft Plan/EIS considers four alternatives for the management of white-tailed deer at the Park. Under Alternative A (No Action), existing management actions would continue, including deer and vegetation monitoring, data management, and research. No new actions would occur to reduce the effects of deer overbrowsing. Alternative B (Combined Non-lethal Actions) would include all actions described under Alternative A, and would incorporate a
Alternative D (Combined Lethal and Non-lethal Actions) is the NPS preferred alternative. Alternative D would include all actions described under Alternative A, and would incorporate a combination of lethal and nonlethal actions from Alternatives B and C. These actions would include the reduction of the deer herd through sharpshooting with firearms or capture and euthanasia and nonsurgical reproductive control of does with an acceptable reproductive control agent to maintain the population.
If you wish to comment on the Draft Plan/EIS, we encourage you to comment via the Internet at the address above, or mail comments directly to the Superintendent at the address above.
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. We will make all submissions from organizations or businesses, from individuals identifying themselves as representatives or officials, of organizations or businesses, available for public inspection in their entirety.
National Park Service, Interior.
Notice of availability.
The National Park Service (NPS) announces the availability of the Record of Decision (ROD) for the General Management Plan/Environmental Impact Statement (GMP/EIS) for the Ice Age National Scenic Trail (Trail) Interpretive Site, Wisconsin.
Copies may be picked up in person or by mailing a request in writing to the Ice Age National Scenic Trail Headquarters Office, 700 Rayovac Drive, Suite 100, Madison, WI 53711, by telephone at (608) 441–5610, or by email at:
Superintendent John Madden, at the address above or by telephone at (608) 441–5610.
We, the NPS, have issued a ROD for the GMP/EIS for the Trail Interpretive Site near Cross Plains, Wisconsin. As soon as practicable, the NPS will begin to implement the selected alternative.
We have selected Alternative 5 as described in the Final GMP/EIS. The selected alternative (which was the preferred alternative) will provide visitors with interpretation of the evolution of the complex from the last glacial retreat and opportunities to enjoy appropriate low-impact outdoor recreation. Ecological resources will largely be managed to reveal the glacial landscape. The most sensitive ecological areas will be carefully protected, and visitor access will be highly controlled in these areas. Visitors will experience a wide variety of indoor and outdoor interpretive programming. Under this alternative, the Ice Age Complex will serve as the headquarters for the Trail.
Other alternatives considered included Alternative 1, no action, which described a continuation of existing management at the Trail and provides a baseline for evaluating the changes and impacts of the other alternatives. In Alternative 1, the Ice Age Complex would have remained undeveloped for visitor use and minimally maintained. The segment of the Trail would still have been built (by the Ice Age Trail Alliance) within the identified corridor under this alternative, but other trails would not have been constructed.
Alternative 2 emphasized ecosystem management and restoration. Vegetation would have been restored to conditions prior to the settlement of Europeans and managed to reveal glacial landscapes. Visitors would have experienced a sense of remoteness through hikes and trails.
Alternative 3 emphasized interpretation and education on how the Ice Age Complex evolved over time since the retreat of the last glacier. Throughout most of the complex, ecological resources would have been managed to reveal the glacial landscape. Visitors would have had an opportunity to experience a wide variety of resources, both ecological and geological, as well as remnants of human use of the site. The visitor experience would have involved sheltered and indoor settings at the core of the property and hiking throughout most other areas of the site. The Ice Age Complex would have served as the headquarters for the Trail.
Alternative 4 emphasized low impact outdoor recreation experiences in support of, and compatible with, preserving and interpreting the glacial significance of the complex and restoring and managing the ecosystem. Visitors would have experienced resources in diverse ways, participating in interpretive programming in indoor and outdoor settings. The Ice Age Complex would have served as the headquarters for the Trail under this alternative.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)) (the Act) to determine whether revocation of the countervailing duty order on raw flexible magnets from China and the revocation of the antidumping duty orders on raw flexible magnets from China and Taiwan would be likely to lead to continuation or recurrence of material injury. Pursuant to section 751(c)(2) of the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Mary Messer (202–205–3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation. The Commission's designated agency ethics official has advised that a five-year review is not considered the “same particular matter” as the corresponding underlying original investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 73 FR 24609 (May 5, 2008). This advice was developed in consultation with the Office of Government Ethics. Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202–205–3088.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in these reviews by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3–5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (Optional) A statement of whether you agree with the above definitions of the
These reviews are being conducted under authority of Title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)) (the Act) to determine whether revocation of the antidumping and countervailing duty orders on certain off-the-road tires from China would be likely to lead to continuation or recurrence of material injury. Pursuant to section 751(c)(2) of the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission
Mary Messer (202–205–3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
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(2) The
(3) The
(4) The
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(6) An
Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation. The Commission's designated agency ethics official has advised that a five-year review is not considered the “same particular matter” as the corresponding underlying original investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 73 FR 24609 (May 5, 2008). This advice was developed in consultation with the Office of Government Ethics. Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202–205–3088.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in these reviews by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3–5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) The quantity and value of U.S. commercial shipments of the
(d) The quantity and value of U.S. internal consumption/company transfers of the
(e) The value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) The quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) The quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) The quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (Optional) A statement of whether you agree with the above definitions of the
These reviews are being conducted under authority of Title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
On the basis of the record
The Commission instituted these reviews on August 1, 2012 (77 FR 45653) and determined on November 5, 2012 that it would conduct full reviews (77 FR 67833, November 14, 2012). Notice of the scheduling of the Commission's reviews and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission completed and filed its determinations in these reviews on July 26, 2013. The views of the Commission are contained in USITC Publication 4418 (July 2013), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review the final initial determination (“final ID” or “ID”) in the above-captioned investigation.
James A. Worth, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–3065. 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 (
This investigation was instituted on April 5, 2012, based upon a complaint filed on behalf of Align Technology, Inc., of San Jose, California (“Align”), on March 1, 2012, as corrected on March 22, 2012. 77 FR 20648 (April 5, 2012). The complaint alleged violations of Section 337 of the Tariff Act of 1930, 19 U.S.C. 1337 (“Section 337”) in the sale for importation, importation, or sale within the United States after importation of certain digital models, digital data, and treatment plans for use in making incremental dental appliances, the appliances made therefrom, and methods of making the same by reason of infringement of certain claims of U.S. Patent No. 6,217,325 (“the '325 patent”); U.S. Patent No. 6,471,511 (“the '511 patent”); U.S. Patent No. 6,626,666; U.S. Patent No. 6,705,863 (“the '863 patent”); U.S. Patent No. 6,722,880 (“the '880 patent”); U.S. Patent No. 7,134,874 (“the '874 patent”); and U.S. Patent No. 8,070,487 (the '487 patent”). The notice of institution named as respondents ClearCorrect Pakistan (Private), Ltd. of Lahore, Pakistan and ClearCorrect Operating, LLC of Houston, Texas (collectively, “the Respondents”).
On May 6, 2013, the administrative law review issued the final ID, finding a violation of Section 337 with respect to the '325 patent, the '880 patent, the '487 patent, the '511 patent, '863 patent, and the '874 patent. The ALJ recommended the issuance of cease and desist orders.
On May 20, 2013, Align, the Respondents, and the Commission investigative attorney each filed a petition for review. On May 28, 2013, each of the parties filed a response thereto. On June 5, 2013, Align filed a statement on the public interest. On June 13, 2013, the Respondents filed a statement on the public interest.
After considering the ID and the relevant portions of the record, the Commission has determined to review the ID in its entirety.
The parties should brief their positions on the issues under review with reference to the applicable law and the evidentiary record. In connection with its review, the Commission is particularly interested in responses to the following questions:
In connection with the final disposition of this investigation, 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 a 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. 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 either are 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 orders 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 United States Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
Persons filing written submissions must do so in accordance with Commission rule 210.4(f), 19 CFR 210.4(f), which requires electronic filing. The original document and 8 true copies thereof must also be filed on or before the deadlines stated above with the Office of the Secretary. Any person desiring to submit a document 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 Commission and must include a full statement of the reasons why the Commission should grant such treatment.
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 Part 210 of the Commission's Rules of Practice and Procedure (19 CFR Part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review the final initial determination (“final ID” or “ID”) in the above-captioned investigation.
James A. Worth, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–3065. 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 (
This investigation was instituted on April 5, 2012, based upon a complaint filed on behalf of Align Technology, Inc., of San Jose, California (“Align”), on March 1, 2012, as corrected on March 22, 2012. 77
On May 6, 2013, the administrative law review issued the final ID, finding a violation of Section 337 with respect to the '325 patent, the '880 patent, the '487 patent, the '511 patent, '863 patent, and the '874 patent. The ALJ recommended the issuance of cease and desist orders.
On May 20, 2013, Align, the Respondents, and the Commission investigative attorney each filed a petition for review. On May 28, 2013, each of the parties filed a response thereto. On June 5, 2013, Align filed a statement on the public interest. On June 13, 2013, the Respondents filed a statement on the public interest.
After considering the ID and the relevant portions of the record, the Commission has determined to review the ID in its entirety.
The parties should brief their positions on the issues under review with reference to the applicable law and the evidentiary record. In connection with its review, the Commission is particularly interested in responses to the following questions:
In connection with the final disposition of this investigation, 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 a 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. 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 either are 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 orders 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 United States Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
Persons filing written submissions must do so in accordance with Commission rule 210.4(f), 19 CFR 210.4(f), which requires electronic filing. The original document and 8 true copies thereof must also be filed on or before the deadlines stated above with the Office of the Secretary. Any person desiring to submit a document 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 Commission and must include a full statement of the reasons why the Commission should grant such treatment.
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 Part 210 of the Commission's Rules of Practice and Procedure (19 CFR Part 210).
By order of the Commission.
Pursuant to § 1301.33(a), Title 21 of the Code of Federal Regulations (CFR), this is notice that on June 10, 2013, Siegfried (USA), LLC., 33 Industrial Park Road, Pennsville, New Jersey 08070, made application by letter to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacture the listed controlled substances in bulk for distribution to its customers.
Any other such applicant, and any person who is presently registered with DEA to manufacture such substance, may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR § 1301.33(a).
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than September 30, 2013.
By application dated June 24, 2013, workers requested administrative reconsideration of the negative determination regarding workers' eligibility to apply for Trade Adjustment Assistance (TAA) applicable to workers and former workers of Amphenol Backplane Systems, Nashua, New Hampshire (subject firm). The negative determination was issued on June 14, 2013 and the Department's Notice of determination was published in the
The initial investigation resulted in a negative determination based on the Department's findings that sales and production at the subject firm increased during that period; that there was no shift in production to a foreign country or acquisition of production from a foreign country; that imports by the subject firm have decreased; that Amphenol Backplane Systems, Nashua, New Hampshire, is neither a Supplier nor Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, 19 U.S.C. 2272(a); and that the workers' firm has not been publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in an affirmative finding of serious injury, market disruption, or material injury, or threat thereof.
The request for reconsideration alleges a shift in production/services to a foreign country, that the subject firm increased imports, that the subject firm experienced a loss of business with a TAA-certified firm, that the subject firm has factories in Mexico and China.
The Department has carefully reviewed the request for reconsideration and the existing record, and will conduct further investigation to determine if the workers meet the eligibility requirements of the Trade Act of 1974, as amended.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the U.S. Department of Labor's prior decision. The application is, therefore, granted.
By application dated June 20, 2013, a state workforce official requested administrative reconsideration of the negative determination regarding workers' eligibility to apply for Trade Adjustment Assistance (TAA) applicable to workers and former workers of Deluxe Laboratories, Inc., a division of Deluxe Entertainment Services Group, Inc., Hollywood, California (subject firm). The negative determination was issued on May 2, 2013 and the Notice of Determination was published in the
The initial investigation resulted in a negative determination based on the Department's findings that with respect to Section 222(a)(2)(A)(ii) of the Act, imports of articles like or directly competitive with release and trailer prints have not increased from 2011 to 2012 or from 2012 to 2013 by the workers' firm or customers of the workers' firm.
With respect to Section 222(a)(2)(B) of the Act, the investigation revealed that the workers' firm did not shift the production of articles like or directly competitive with release and trailer prints to a foreign country or acquire like or directly competitive articles from a foreign country during 2011, 2012, or 2013. Rather, the investigation confirmed that the worker separations are attributable to decreased demand for movies and trailers that are printed on 35mm film.
With respect to Section 222(b)(2) of the Act, the investigation revealed that Deluxe Laboratories, Inc. is not a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, 19 U.S.C. 2272(a).
Finally, the group eligibility requirements under Section 222(e) of the Act, have not been satisfied because the workers' firm has not been publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in an affirmative finding of
The request for reconsideration alleges that other products such as trailer celluloid prints in the form of digital drives, and other storage media used for digital projections, are like and directly competitive with the products produced by the workers of the subject firm. The request for reconsideration alleges that the workers' firm shifted production to a foreign country and acquired products from a foreign country that are like and directly competitive with release and trailer prints, including the aforementioned products. The request for reconsideration also alleges that the subject firm “is a supplier and a downstream producer to Cinetech and also Technicolor, TA–W–82,166, whom received TAA certification.”
The Department has carefully reviewed the request for reconsideration and the existing record, and will conduct further investigation to determine if the workers meet the eligibility requirements of the Trade Act of 1974, as amended.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the U.S. Department of Labor's prior decision. The application is, therefore, granted.
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than August 12, 2013.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than August 12, 2013.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N–5428, 200 Constitution Avenue NW., Washington, DC 20210.
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before September 3, 2013. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
You may request a copy of any records schedule identified in this notice by contacting Records Management Services (ACNR) using one of the following means:
Requesters must cite the control number, which appears in parentheses after the name of the agency which submitted the schedule, and must provide a mailing address. Those who desire appraisal reports should so indicate in their request.
Margaret Hawkins, Director, Records Management Services (ACNR), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740–6001. Telephone: 301–837–1799. Email:
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval, using the Standard Form (SF) 115, Request for Records Disposition Authority. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
The schedules listed in this notice are media neutral unless specified otherwise. An item in a schedule is media neutral when the disposition instructions may be applied to records regardless of the medium in which the records are created and maintained. Items included in schedules submitted to NARA on or after December 17, 2007, are media neutral unless the item is limited to a specific medium. (See 36 CFR 1225.12(e).)
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of Defense, Defense Contract Management Agency (N1–558–10–3, 11 items, 9 temporary items). Records include responses to congressional inquiries, biographies of agency personnel, clearances of speeches and testimony, responses to information requests, legal opinions, and litigation files. Proposed for permanent retention are congressional hearing and testimony records, agency publications, significant public affairs releases, and speeches of high level officials.
2. Department of Defense, Defense Contract Management Agency (N1–558–10–6, 6 items, 6 temporary items). Routine audiovisual, cartographic, architectural, and engineering records, as well as documents related to the production and maintenance of such records.
3. Department of Defense, Defense Logistics Agency (DAA–0361–2013–0003, 1 item, 1 temporary item). Routine surveillance recordings of facilities and equipment.
4. Department of Health and Human Services, Office of the Secretary (DAA–0468–2013–0003, 7 items, 2 temporary items). Regulatory applications, site audit reports, and stakeholder engagement records related to medical countermeasures operations. Proposed for permanent retention are medical countermeasures development records, acquisition records, facilities and engineering records, analytical decision support records, and significant committee records.
5. Department of Health and Human Services, Office of the Secretary (DAA–0468–2013–0004, 4 items, 2 temporary items). Working files and a tracking index for the Office of the Secretary's delegations of authority. Proposed for permanent retention are the delegations of authority.
6. Department of State, Bureau of Administration (DAA–0059–2012–0006, 11 items, 8 temporary items). Records of the Office of Directives Management including forms management records, internal information technology records,
7. Department of Transportation, National Highway Traffic Safety Administration (N1–416–11–3, 18 items, 18 temporary items). Records related to vehicle safety compliance including correspondence, reports, and case files.
8. Department of the Treasury, Treasury Inspector General for Tax Administration (DAA–0056–2012–0001, 1 item, 1 temporary item). Master files of an electronic information system used to manage workflow for the Office of Audit.
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is considering changes to the Emergency Plan, “Conditions of licenses,” for North Anna Power Station, Units 1 and 2 (NAPS), for Renewed Facility Operating License Nos. NPF–4 and NPF–7, and Surry Power Station, Units 1 and 2 (Surry) for Renewed Facility Operating License Nos. DPR–32 and DPR–37, issued to Virginia Electric and Power Company (the licensee), for operation of NAPS and Surry located in Louisa County, Virginia, and Surry County, Virginia, respectively.
Please refer to Docket ID NRC–2013–0172 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, using any of the following methods:
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Dr. V. Sreenivas, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: 301–415–2597, email:
The NRC is considering changes to the Emergency Plan, pursuant to § 50.54(q) of Title 10 of the
The proposed action is a license amendment that would change the Emergency Action Levels (EALs), by adding a 15-minute threshold for isolation of reactor coolant system leaks based on NEI 99–01, Revision 5, “Methodology for Development of Emergency Action Levels,” using the guidance of NRC Regulatory Issue Summary 2003–18, Supplement 2, “Use of Nuclear Energy Institute (NEI) 99–01, Methodology for Development of Emergency Action Levels.” The proposed action is in accordance with the licensee's application, dated September 27, 2012, can be found in ADAMS under Accession No. ML12283A069.
The proposed action is needed because amendments would change an EAL scheme based on NUREG–0654, “Criteria for Preparation and Evaluation of Radiological Emergency Response Plan and Preparedness in Support of Nuclear Power Plants,” to one based on NEI 99–01, “Methodology for Development of Emergency Action Levels,” Revision 4. This change would add 15 minutes to the EAL to preclude classification for brief and readily isolatable RCS leaks. The addition of a 15-minute period would allow plant operators to isolate the RCS leaks using readily accessible means available in the Control Room.
The NRC has completed its environmental assessment of the proposed EAL changes to NAPS and Surry. The staff has concluded that the changes would not affect plant safety and would not have an adverse effect on the probability of an accident occurring. The proposed change has no effect on the consequences of any analyzed accident since the change does not affect any equipment related to accident mitigation. The addition of a 15-minute criteria to the emergency action level only serves to ensure the emergency action level declaration is based upon plant conditions that are more indicative of a (Notice of) Unusual Event (UE) emergency classification level. The brief delay in declaring the proposed action would not result in radiological hazard beyond those previously analyzed in the Updated Final Safety Analysis Report, as this emergency classification level is based upon plant events that have no radiological consequences. There will
The proposed action does not result in changes to land use or water use, or result in changes to the quality or quantity of non-radiological effluents. No changes to the National Pollution 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. There are no impacts to the air or ambient air quality.
There are no impacts to historic and cultural resources. There would be no noticeable effect on socioeconomic conditions in the region.
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 application would result in no change in current environmental impacts. The environmental impacts of the proposed action and the alternative action are similar.
The action does not involve the use of any different resources than those previously considered in the “Final Environmental Statement Related to the Continuation of Construction and the Operation,” for NAPS dated April 1973, and Surry dated May 1972 and June 1972, respectively, as supplemented through the “Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Supplements 6 and 7 Regarding Surry and NAPS—Final Report (NUREG–1437, Supplements 6 and 7),” dated November 2002.
In accordance with its stated policy, on July 3, 2013, the staff consulted with the Virginia State official, Steven A. Harrison, Director of the Division of Radiological Health, regarding the proposed EAL revision. 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.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Exemption and combined license amendment; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an exemption to allow a departure from the certification information of Tier 1 of the generic design control document (DCD) and License Amendment No. 11 to Combined Licenses (COL), NPF–91 and NPF–92. The COLs were issued to Southern Nuclear Operating Company, Inc., and Georgia Power Company, Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, and the City of Dalton, Georgia (the licensee); for construction and operation of the Vogtle Electric Generating Plant (VEGP), Units 3 and 4, located in Burke County, Georgia.
Please refer to Docket ID NRC–2008–0252 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, using any of the following methods:
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Anthony Minarik, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–6185; email:
The amendment changes requested to add four electrical penetration assemblies to the containment vessel and shield building in order to support the current electrical loads. The requested changes did not add new electrical loads or modify the currently approved electrical loads. This request includes changes to Tier 1 information located in Tables 2.2.1–1 and 2.2.3–6 as well as Figure 2.2.1–1, as well as the corresponding information in Appendix C of the COL. The granting of the exemption allows the requested Tier 1 changes. Because the acceptability of the exemption was determined in part by the acceptability of the amendment, the exemption and amendment are being issued concurrently.
The NRC is issuing an exemption from Paragraph B of Section III, “Scope and Contents,” of Appendix D, “Design Certification Rule for the AP1000,” to part 52 of Title 10 of the
Part of the justification for granting the exemption was provided by the review of the amendment. Because the exemption is necessary in order to issue the requested license amendment, the NRC granted the exemption and issued the amendment concurrently, rather than in sequence. This included issuing a combined safety evaluation containing the NRC staff's review of both the exemption request and the license amendment. The exemption met all applicable regulatory criteria set forth in 10 CFR 50.12, 10 CFR 52.7, and Section VIII.A.4. of Appendix D to 10 CFR Part 52. The license amendment was found to be acceptable as well. The combined safety evaluation is available in ADAMS under Accession No. ML13158A324.
Identical exemption documents (except for referenced unit numbers and license numbers) were issued to the licensee for Vogtle Units 3 and 4 (COLs NPF–91 and NPF–92). These documents can be found in ADAMS under Accession Nos. ML13158A314 and ML13158A317. The exemption is reproduced (with the exception of abbreviated titles and additional citations) in Section II of this document. The amendment documents for COLs NPF–91 and NPF–92 are available in ADAMS under Accession Nos. ML13158A321 and ML13158A322. A summary of the amendment documents is provided in Section III of this document.
Reproduced below is the exemption document issued to Vogtle Units 3 and 4. It makes reference to the combined safety evaluation that provides the reasoning for the findings made by the NRC (and listed under Item 1) in order to grant the exemption:
1. In a letter dated September 28, 2012, and as supplemented by letter dated March 8, 2013, the licensee requested from the Commission an exemption from the provisions of 10 CFR Part 52, Appendix D, Section III.B, as part of license amendment request 12–010, “Additional Electrical Penetration Assemblies” (LAR 12–010).
For the reasons set forth in Section 3.1, “Evaluation of Exemption,” of the NRC staff's Safety Evaluation, which can be found in ADAMS under Accession No. ML13158A324, the Commission finds that:
A. The exemption is authorized by law;
B. The exemption presents no undue risk to public health and safety;
C. The exemption is consistent with the common defense and security;
D. Special circumstances are present in that the application of the rule in this circumstance is not necessary to serve the underlying purpose of the rule;
E. The special circumstances outweigh any decrease in safety that may result from the reduction in standardization caused by the exemption; and
F. The exemption will not result in a significant decrease in the level of safety otherwise provided by the design.
2. Accordingly, the licensee is granted an exemption to the provisions of 10 CFR part 52, Appendix D, Section III.B, to allow deviations from the Tier 1 certification information in Table 2.2.1–1, Figure 2.2.1–1, and Table 2.2.3–6 of the certified Design Control Document, as described in the licensee's request dated September 28, 2012, and as supplemented on March 8, 2013. This exemption is related to, and necessary for the granting of License Amendment No. 11, which is being issued concurrently with this exemption.
3. As explained in Section 5.0, “Environmental Consideration,” of the NRC staff's Safety Evaluation (ADAMS Accession No. ML13158A324), this exemption meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(9). Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment needs to be prepared in connection with the issuance of the exemption.
4. This exemption is effective as of July 10, 2013.
By letter dated September 28, 2012, the licensee requested that the NRC amend the COLs for VEGP, Units 3 and 4, COLs NPF–91 and NPF–92. The licensee supplemented this application on March 8, 2013. The proposed amendment would depart from the UFSAR Tier 1 material, and would revise the associated material that has been included in Appendix C of each of the VEGP, Units 3 and 4, COLs. Specifically the requested amendment will revise the Tier 1 information located in Table 2.2.1–1, Figure 2.2.1–1, and Table 2.2.3–6 in order to add four non-Class 1E electrical penetration assemblies to the containment vessel and shield building.
The Commission has determined for these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
The Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need to be prepared for these amendments.
Using the reasons set forth in the combined safety evaluation, the staff granted the exemption and issued the amendment that the licensee requested on September 28, 2012, and supplemented by letter dated March 8, 2013. The exemption and amendment were issued on July 10, 2013 as part of a combined package to the licensee (ADAMS Accession No. ML13158A295).
For the Nuclear Regulatory Commission.
Aerotest Operations, Inc. (Aerotest, the licensee), is the holder of Facility Operating License No. R–98, issued on
Section 104d., “Medical Therapy and Research and Development,” of the AEA and 10 CFR 50.38, “Ineligibility of Certain Applicants,” prohibit the issuance of any license for a utilization and production facility useful in the conduct of research and development “to any corporation or other entity if the Commission knows or has reason to believe it is owned, controlled, or dominated by an alien, a foreign corporation, or a foreign government.”
Autoliv, Inc. is headquartered in Stockholm, Sweden. The majority of Autoliv, Inc.'s board of directors and executive officers are non-U.S. citizens. The majority of Autoliv, Inc.'s outstanding stock is held by non-U.S. citizens. Thus, Autoliv, Inc. is a foreign corporation for the purposes of the AEA, and its ownership of ARRR is prohibited. Nonetheless in 2000, Autoliv, Inc. acquired Aerotest through intermediate acquisition of several wholly owned companies. As a result, Autoliv, Inc. now has indirect control of the Aerotest license. Although Autoliv, Inc.'s acquisition of Aerotest constituted an indirect transfer of control of the Aerotest license, this transfer was not the subject of an application for prior consent of the NRC as required by 10 CFR 50.80, “Transfer of Licenses,” and, therefore, the transfer was neither reviewed nor approved by the NRC.
On October 7, 2003 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML040430495), the NRC staff issued a letter to Autoliv instructing Autoliv to develop a full divestiture plan or partial divestiture and negation action plan and to report progress on the plan every six months thereafter. Autoliv developed a plan but was not able to divest Aerotest of foreign ownership and control.
By letter dated February 28, 2005, as supplemented by letters dated May 5, 2008; March 9, July 21, and September 4, 2009; and January 7, 2010 (ADAMS Accession Nos. ML13120A434, ML103370137, ML120900629, ML092080163, ML092600267, ML100140375, respectively), Aerotest applied for renewal of the ARRR operating license. The licensee has been operating under the timely renewal provisions of 10 CFR 2.109, “Effect of Timely Renewal Application,” since the expiration of the license on April 16, 2005. Upon review of the renewal application, the NRC staff noted that Aerotest still did not satisfy the requirements of Section 104d. of the AEA and 10 CFR 50.38. On July 9, 2009 (ADAMS Accession No. ML090830578), the NRC issued a proposed denial of the license renewal because of the foreign ownership issue.
On July 21, 2009 (ADAMS Accession No. ML092080163), Aerotest notified the NRC that Autoliv ASP, Inc. (which is wholly owned by Autoliv, Inc.) and X-Ray Industries, Inc., had entered into a non-binding letter of intent for the sale of the ARRR to X-Ray Industries, Inc. On January 7, 2010, as amended by letters dated January 19, February 2, March 23, and April 1, 2010 (ADAMS Accession Nos. ML100140375, ML100490068, ML100880295, ML100880338, ML100980153, respectively), the NRC received a license transfer application from Autoliv and X-Ray Industries. An NRC Order, dated July 6, 2010 (ADAMS Accession No. ML101380228), approved the license transfer and provided 60 days (extended to October 15, 2010, through letter dated September 13, 2010 (ADAMS Accession No. ML102460245)), for the transfer to be consummated. The Order expired without the transfer of the license.
On October 15, 2010, Aerotest voluntarily ceased day-to-day operations (reactor operation continued for surveillances). On February 26, 2011 (ADAMS Accession No. ML103640183), the NRC responded to a January 7, 2011 (ADAMS Accession No. ML1101180463), letter from Aerotest by issuing Confirmatory Action Letter (CAL) No. NRR–2011–001 to Aerotest. The CAL confirmed actions Aerotest would take to prepare a decommissioning plan, manage and provide funding for the disposition of fuel, and file an application for a possession-only license amendment.
Aerotest did not submit a decommissioning plan and possession-only license amendment application as discussed in the CAL. Consequently, on January 18, 2012 (ADAMS Accession No. ML120200203), the NRC held a public meeting with Aerotest to discuss the status of the decommissioning plan and possession-only license amendment application. At the conclusion of the meeting, Aerotest agreed to provide the NRC with milestones and deliverables as part of a CAL status report due on January 24, 2012.
In a letter dated January 24, 2012 (ADAMS Accession No. ML12027A010), Aerotest stated that by March 31, 2012, it would inform the NRC that either negotiations for acquisition of the reactor had ended or negotiations had resulted in a selected buyer. In a letter dated March 30, 2012 (ADAMS Accession No. ML12093A399), Aerotest informed the NRC that it had selected a buyer, Nuclear Labyrinth, LLC, and that a license transfer application would be submitted by May 30, 2012. Aerotest and Nuclear Labyrinth, LLC, submitted a license transfer application on May 30, 2012 (ADAMS Accession Nos. ML12152A233 and ML12180A384). The NRC accepted the application for review on August 14, 2012 (ADAMS Accession No. ML12213A486), after the applicants submitted supplemental information on July 19, 2012 (ADAMS Accession No. ML122021201). The NRC sent requests for additional information to the applicants on two occasions and reviewed the applicants' responses, dated October 15, 2012, and January 10, 2013 (ADAMS Accession Nos. ML12291A508 and ML13015A395). A public meeting was held on December 19, 2012 (ADAMS Accession No. ML13018A003), because the October 15, 2012, submission was insufficient. During the meeting, the NRC staff reiterated the financial information required for NRC approval of the indirect transfer.
The NRC staff has completed its safety evaluation (ADAMS Accession No. ML13129A001) of the license transfer request. The NRC staff has concluded that it does not have reasonable assurance, as required by 10 CFR 50.33, “Contents of Applications; General Information,” that Nuclear Labyrinth, LLC, or Aerotest Operations, Inc., would have sufficient funding to conduct the activities authorized by the ARRR license if the license were transferred. Consequently, the NRC staff is denying the license transfer request. Therefore, the ARRR remains under Autoliv, Inc.'s foreign ownership, control, and domination. Based on the information provided above, the NRC finds that Aerotest is in violation of Section 104d. of the AEA and 10 CFR 50.38, which prohibit foreign ownership, control, or domination of licenses issued under 10 CFR part 50.
Aerotest has been out of compliance with Section 104d. of the AEA and 10 CFR 50.38 since Autoliv, Inc. took control in 2000. Despite the licensee's and the NRC's efforts, Aerotest continues to be out of compliance. The NRC cannot renew the Aerotest license because Aerotest is not authorized to hold a 10 CFR part 50 license.
Therefore, the NRC staff is denying the license renewal application and is hereby prohibiting the licensee from operating the ARRR. In addition, Aerotest must begin the process of decommissioning the ARRR.
Accordingly, pursuant to Sections 104c., 104d., 161b., 161i., 161o., 182, and 186 of the AEA and the Commission's regulations in 10 CFR 2.202, “Orders,” and 10 CFR Part 50,
In accordance with 10 CFR 2.202, the licensee must, and any other person adversely affected by this Order may, submit an answer to this Order within 20 days of its publication in the
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding before the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the Internet or, in some cases, to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days before the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online Web-based submission form. To serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, and marked “Attention: Rulemaking and Adjudications Staff;” or (2) courier, express mail, or expedited delivery service addressed to the Office of the Secretary, 16th Floor, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, and marked “Attention: Rulemaking and Adjudications Staff.” Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket, which is available to the public at
If a person other than the licensee requests a hearing, that person shall set forth with particularity the manner in which his or her interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d). If a hearing is requested by a licensee or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearings. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained. In the absence of any request for hearing, or any written approval of an extension of time in which to request a hearing, the provisions specified in Section IV above shall be final 20 days from the date this Order is published in the FR without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section IV shall be final when the extension expires if a hearing request has not been received.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Implementation of electronic distribution of advanced reactor correspondence; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing this Federal Register notice to inform the public that, in the future, publicly available correspondence originating from the Division of Advanced Reactors and Rulemaking (DARR) in the Office of New Reactors (NRO) will be transmitted only by a computer-based email distribution system listserv to addressees and subscribers. This change does not affect the availability of official agency records in the NRC's Agencywide Documents Access and Management System (ADAMS), which may be accessed through NRC's Web page at
Please refer to Docket ID NRC–2013–0170 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, using any of the following methods:
•
•
•
Cameron S. Goodwin, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–6146; email:
This electronic distribution process was first utilized by the Division of Operating Reactor Licensing (DORL) in October 2008. All four regions are also utilizing this process for their operating reactor correspondence. Region 2 was the final region to convert to electronic distribution in June of 2013. Public feedback regarding this process has been positive. This process distributes correspondence documents to the addressees and members of the listserv at the same time. Distribution of documents containing safeguards, proprietary or security-related
This initiative will be implemented by August 2013. Individuals may subscribe to receive DARR generated correspondence by entering the following URL into their web browser address bar:
1. Go to the NRC's public Web site (
2. Click on the “Public Meetings and Involvement” tab.
3. On this page, under the heading “Information and Meeting Schedules to Help You Participate,” click on “Subscribe to Email Updates.”
4. On this page, scroll down to the Lyris Subscription Services.
5. Enter your email address.
6. You have the option to select “All Advanced Reactor Correspondence” or the individual designs.
7. Once you have selected the designs, click on the “Subscribe” button.
For the Nuclear Regulatory Commission.
On July 3, 2012, Topaz Exchange, LLC (“Topaz Exchange” or “Exchange”) submitted to the Securities and Exchange Commission (“Commission”) an Application for Registration as a National Securities Exchange (“Form 1 Application”)
Under Sections 6(b) and 19(a) of the Act,
As discussed in greater detail below, the Commission finds that Topaz Exchange's application for exchange registration meets the requirements of the Act and the rules and regulations thereunder. Further, the Commission finds that the proposed rules of Topaz Exchange are consistent with Section 6 of the Act in that, among other things, they assure a fair representation of the exchange's members in the selection of its directors and administration of its affairs and provide that one or more directors shall be representative of issuers and investors and not be associated with a member of the exchange, or with a broker or dealer;
Topaz Exchange is structured as a Delaware limited liability company
The board of directors of Topaz Exchange (“Topaz Exchange Board” or “Board”) will be its governing body and will possess all of the powers necessary for the management of its business and affairs, including governance of Topaz Exchange as a self-regulatory organization (“SRO”).
• At least 50% of Topaz Exchange Board must be comprised of Non-Industry Directors;
• At least one of the Non-Industry Directors must be a Public Director;
• Topaz Exchange Board will include the President/Chief Executive Officer as a director;
• At least 30% of Topaz Exchange Board must be officers, directors or partners of Topaz Exchange members, and must be elected by a plurality of holders of Exchange Rights (“Industry Directors”), of which at least one must be elected by a plurality of holders of Primary Market Maker (“PMM”) Exchange Rights, one must be elected by a plurality of holders of Competitive Market Maker (“CMM”) Exchange Rights, and one must be elected by a plurality of holders of Electronic Access Member (“EAM”) Exchange Rights, provided that the number of each type of Industry Director shall always be equal to one another.
As part of the process to elect members of the Board, the Nominating Committee will nominate the proposed Industry Directors and the Corporate Governance Committee
The Commission believes that the requirement in the Topaz Exchange Constitution that at least 30% of the directors be Industry Directors and the means by which they will be chosen by Topaz Exchange members
After Topaz Exchange is granted registration by the Commission, but prior to commencing operations, ISE Holdings, as the sole shareholder of Topaz Exchange,
These interim Industry Directors will serve until the first initial Topaz Exchange Board is elected pursuant to the full nomination, petition, and voting process set forth in the Topaz Exchange Constitution and described above.
The Commission believes that the process for electing the interim Topaz Exchange Board, as proposed, is consistent with the requirements of the Act, including that the rules of the exchange assure fair representation of the exchange's members in the selection of its directors and administration of its affairs.
The Commission believes that the Interim Topaz Exchange Board process is designed to provide member representation sufficient to allow Topaz Exchange to commence operations for an interim period prior to going through the process to elect a new Board pursuant to the full nomination, petition, and voting process set forth in the Topaz Exchange Constitution.
Topaz Exchange will have a number of Board committees,
Topaz Exchange also will have a Nominating Committee, which will be a
The Commission believes that Topaz Exchange's proposed committees, which are similar to committees maintained by other exchanges,
When Topaz Exchange commences operations as a national securities exchange, Topaz Exchange will have all the attendant regulatory obligations under the Act. In particular, Topaz Exchange will be responsible for the operation and regulation of its trading system and the regulation of its members. Certain provisions in the Topaz Exchange and ISE Holdings governance documents are designed to facilitate the ability of Topaz Exchange and the Commission to fulfill their regulatory and oversight obligations under the Act. The discussion below summarizes some of these key provisions.
As noted above in Section II.A, Topaz Exchange will be structured as a Delaware LLC and will be a wholly-owned subsidiary of ISE Holdings
First, ISE Holdings' governing documents prohibit any Topaz Exchange member (alone or together with its Related Persons
Consistent with the governance structure of other exchanges, ISE Holdings' Board may waive the 40% ownership limitation and the 20% voting restriction for persons other than Topaz Exchange members, subject to certain specified conditions,
The Topaz Exchange LLC Agreement and Topaz Exchange Constitution do not include change of control provisions that are similar to those in the ISE Holdings Certificate and ISE Holdings Bylaws. However, the Topaz Exchange LLC Agreement and the Topaz Exchange Constitution explicitly provide that ISE Holdings is the Sole LLC Member of Topaz Exchange.
As detailed above, ISE Holdings is owned by various Upstream Owners, none of which have similar ownership
Since 2007, U.S. Exchange Holdings' governing documents and the non-U.S. upstream owners' 2007 Resolutions have been updated, where appropriate, to reflect changes in corporate structure and ownership as described herein. In 2010, to effect the registrations of EDGA and EDGX as national securities exchanges, and to maintain ISE Holdings' ownership and voting limits, as well as the independence of the regulatory function of EDGA and EDGX, the U.S. Exchange Holdings governing documents and the 2007 Resolutions were supplemented by each of the then non-U.S. upstream owners through supplemental resolutions (“DirectEdge Resolutions”) that applied the commitments of the 2007 Resolutions to EDGA and EDGX, as affiliates of ISE,
In 2012, new resolutions were executed by EGD, a Swiss corporation, when it became a wholly-owned subsidiary of Deutsche Börse, and thus a Non-U.S. Upstream Owner of ISE, EDGA and EDGX.
Further, in connection with the Eurex Acquisition, ISE implemented the Trust pursuant to a Trust Agreement (“2007 Trust Agreement”)
Thus, the 2009 Trust Agreement will apply to Topaz Exchange upon the Commission's granting its registration as a national securities exchange because it is controlled directly by ISE Holdings. Except for the expanded scope, the 2009 Trust Agreement was substantially similar to the 2007 Trust Agreement. In 2012, the Commission approved a proposed rule change that revised the 2009 Trust Agreement to replace references to a former owner, SIX, to the new owner, EGD (the 2009 Trust Agreement, as thereby amended, is referred to herein as the “2012 Trust Agreement”).
The current agreement (“2012 Trust Agreement”) serves, in part, to effectuate the ownership and voting limits for ISE Holdings in the event that a person obtains an ownership or voting interest in excess of the limits established in the ISE Holdings Certificate without prior Commission approval. To accomplish that purpose, for as long as ISE Holdings controls, directly or indirectly, a national securities exchange, including Topaz Exchange, the Trust would accept, hold and dispose of Trust Shares
Although ISE Holdings is not independently responsible for regulation of Topaz Exchange, its activities with respect to the operation of Topaz Exchange must be consistent with, and must not interfere with, the self-regulatory obligations of Topaz Exchange.
The Commission believes that Topaz Exchange's and ISE Holdings' proposed ownership and voting limitation provisions, coupled with the provisions in U.S. Exchange Holdings' governing documents, the Topaz Exchange Resolutions and the 2012 Trust Agreement described above,
Although ISE Holdings itself will not itself carry out regulatory functions, its activities with respect to the operation of Topaz Exchange must be consistent with, and not interfere with, the self-regulatory obligations of Topaz Exchange.
• The directors, officers, and employees of ISE Holdings must give due regard to the preservation of the independence of the self-regulatory function of Topaz Exchange and must not take actions that would interfere with the effectuation of decisions by the Topaz Exchange Board relating to its regulatory functions (including disciplinary matters) or that would adversely affect the ability of Topaz Exchange to carry out its responsibilities under the Act.
• ISE Holdings must comply with federal securities laws and the rules and regulations promulgated thereunder, and must cooperate with Topaz Exchange and the Commission pursuant to, and to the extent of, their respective regulatory authority. In addition, ISE Holdings' officers, directors, and employees must comply with federal securities laws and the rules and regulations thereunder and agree to cooperate with Topaz Exchange and the Commission pursuant to their respective regulatory authority.
• ISE Holdings, and its officers, directors, employees, and agents are deemed to irrevocably submit to the jurisdiction of the U.S. federal courts, the Commission, and Topaz Exchange, for purposes of any suit, action, or proceeding pursuant to U.S. federal securities laws, and the rules and regulations thereunder, arising out of, or relating to, Topaz Exchange's activities.
• All books and records of Topaz Exchange containing confidential information pertaining to the self-regulatory function of Topaz Exchange (including but not limited to confidential information regarding disciplinary matters, trading data, trading practices and audit information) shall be retained in confidence by Topaz Exchange and its officers, directors, employees and agents and will not be used by Topaz Exchange for any commercial purpose and shall not be made available to persons other than those officers, directors, employees and agents that have a reasonable need to know the contents thereof.
• The books and records of Topaz Exchange and ISE Holdings must be maintained in the United States
• Furthermore, to the extent that they are related to the activities of Topaz Exchange, the books, records, premises, officers, directors, and employees of ISE Holdings will be deemed to be the books, records, premises, officers, directors, and employees of Topaz Exchange, for purposes of, and subject to oversight pursuant to, the Act.
• ISE Holdings will take necessary steps to cause its officers, directors, and employees, prior to accepting a position as an officer, director, or employee (as
• ISE Holdings Certificate and ISE Holdings Bylaws require that, so long as ISE Holdings controls Topaz Exchange, any changes to those documents be submitted to the Topaz Exchange Board, and, if such change is required to be filed with, or filed with and approved by, the Commission before it may be effective pursuant to Section 19 of the Act and the rules thereunder, such change shall not be effective until filed with, or filed with and approved by, the Commission.
Although the Upstream Owners will not carry out any regulatory functions, the activities of each of the Upstream Owners with respect to the operation of Topaz Exchange must be consistent with, and not interfere with, the self-regulatory obligations of Topaz Exchange. The 2007 Resolutions, as supplemented by the supplemental Resolutions for Topaz Exchange, the U.S. Exchange Holdings Certificate, and the U.S. Exchange Holdings Bylaws include certain provisions that are designed to maintain the independence of the self-regulatory function of Topaz Exchange, enable Topaz Exchange to operate in a manner that complies with the U.S. federal securities laws, including the objectives and requirements of Sections 6(b) and 19(g) of the Act,
• Each such Non-U.S. Upstream Owner and U.S. Exchange Holdings will comply with the U.S. federal securities laws and the rules and regulations thereunder and cooperate with the Commission and Topaz Exchange.
• In discharging his or her responsibilities as a board member of a Non-U.S. Upstream Owner, or of U.S. Exchange Holdings, each such member must, to the fullest extent permitted by applicable law, take into consideration the effect that the actions of the Upstream Owner or U.S. Exchange Holdings, as applicable, will have on the ability of Topaz Exchange to carry out its responsibilities under the Act.
• The Non-U.S. Upstream Owners (along with their respective board members, officers, and employees), and U.S. Exchange Holdings agree to keep confidential, to the fullest extent permitted by applicable law, all confidential information pertaining to the self-regulatory function of Topaz Exchange, including, but not limited to, confidential information regarding disciplinary matters, trading data, trading practices and audit information, contained in the books and records of Topaz Exchange and not use such information for any commercial purposes.
The Commission believes that any non-regulatory use of such information would be for a commercial purpose.
• The books and records of the Non-U.S. Upstream Owners related to the activities of Topaz Exchange must at all times be made available for, and the books and records of U.S. Exchange Holdings must be subject at all times to, inspection and copying by the Commission and Topaz Exchange.
• Books and records of U.S. Exchange Holdings related to the activities of Topaz Exchange will be maintained within the United States.
• For so long as each of the Non-U.S. Upstream Owners or U.S. Exchange Holdings directly or indirectly controls Topaz Exchange, the books, records, officers, directors (or equivalent), and employees of each of the Non-U.S. Upstream Owners or of U.S. Exchange Holdings will be deemed to be the books, records, officers, directors, and employees of Topaz Exchange, as applicable.
• To the extent involved in the activities of Topaz Exchange, each of the Non-U.S. Upstream Owners, its board members, officers, and employees, irrevocably submit to the jurisdiction of the U.S. federal courts and the Commission for purposes of any suit, action or proceeding arising out of, or relating to, the activities of Topaz Exchange to the extent such board member, officer or employee are involved in the activities of Topaz Exchange.
• The 2007 Resolutions, as supplemented by the Topaz Exchange Resolutions, and the U.S. Exchange Holdings Certificate and the U.S. Exchange Holdings Bylaws each require that any change to the applicable document (including any action by the Non-U.S. Upstream Owners that would have the effect of amending or repealing the Topaz Exchange Resolutions or the 2007 Resolutions) must be submitted to the Topaz Exchange Board.
The 2012 Trust Agreement, in addition to enforcing the ownership and voting limits,
The Commission believes that the provisions discussed above in Sections II.C.2.a. and b., which are designed to help maintain the independence of Topaz Exchange's regulatory function and help facilitate the ability of Topaz Exchange to carry out its regulatory responsibilities and operate in a manner consistent with the Act, are appropriate and consistent with the requirements of the Act, particularly with Section 6(b)(1), which requires, in part, an exchange to be so organized and have the capacity to carry out the purposes of the Act.
Further, Section 19(h)(1) of the Act
Even in the absence of the provisions described above, under Section 20(a) of the Act,
As discussed more fully in the Eurex Acquisition Order,
Notwithstanding this Procedure, the Swiss Upstream Owners remain fully responsible for meeting all of their obligations as owners of a U.S. securities exchange, to be set forth in binding corporate resolutions.
Subject to the terms and conditions relating to the Procedure, coupled with the fact that under the Topaz Exchange LLC Agreement, all trading records of Topaz Exchange must be maintained in the United States,
As a prerequisite to the Commission's granting of an exchange's application for registration, an exchange must be so organized and have the capacity to carry out the purposes of the Act.
Topaz Exchange will have a Chief Regulatory Officer (“CRO”) with general responsibility for supervision of the regulatory operations of Topaz Exchange. The CRO will report to the Corporate Governance Committee
The Corporate Governance Committee will monitor the regulatory program for sufficiency, effectiveness and independence, and will oversee trade practices and market surveillance, audits, examinations and other regulatory responsibilities with respect to members and the conduct of investigations. The Corporate Governance Committee also will supervise the CRO; will receive an annual report from the CRO assessing Topaz Exchange's self-regulatory program for the Board; will recommend changes that would ensure fair and effective regulation; and will review regulatory proposals and advise the Board as to whether and how such changes may impact regulation. The Corporate Governance Committee will review annually the regulatory budget and specifically inquire into the adequacy of the resources available in the budget for regulatory activities. The Corporate Governance Committee will authorize unbudgeted expenditures for necessary regulatory expenses. In addition, the Finance and Audit Committee will provide oversight over the systems of internal controls established by management and the Board and the Exchange's regulatory and compliance process.
The Compensation Committee will set compensation for the CRO. The Corporate Governance Committee, in its sole discretion, will make hiring and termination decisions with respect to the CRO, in each case taking into consideration any recommendations made by the President/Chief Executive Officer. The Corporate Governance Committee will be informed about the
To help assure the Commission that it has and will continue to have adequate funding to be able to meet its responsibilities under the Act, Topaz Exchange represented that, prior to commencing operations as a national securities exchange, ISE Holdings will provide sufficient funding to Topaz Exchange for the exchange to carry out its responsibilities under the Act.
Topaz Exchange represented in its Form 1 Application that there will be a written agreement between Topaz Exchange and ISE Holdings that requires ISE Holdings to provide adequate funding for Topaz Exchange's operation, including the regulation of Topaz Exchange.
Section 19(g)(1) of the Act,
A 17d–2 plan that is declared effective by the Commission relieves the specified SRO of those regulatory responsibilities allocated by the plan to another SRO.
Topaz Exchange has represented to the Commission that it will enter into the following allocation of regulatory responsibilities pursuant to Rule 17d–2 of the Act (“17d–2 Plans”),
• Multiparty 17d–2 Plan for the Allocation of Regulatory Responsibility for Options Sales Practice Matters;
• Multiparty 17d–2 Plan for the Allocation of Regulatory Responsibility for Options Related Market Surveillance Matters;
• Bilateral 17d–2 Plan with FINRA that would cover, among other things, general inspection, examination, and enforcement activity.
If the Commission declares effective the amendments to the multilateral 17d–2 Plans and the new bilateral 17d–2 Plan, another SRO (often FINRA) would assume certain regulatory responsibility for members of Topaz Exchange that are also members of the SRO that assumes the regulatory responsibilities. This regulatory structure would be consistent with that of other exchanges, including ISE.
In addition, Topaz Exchange has entered into a third-party Regulatory Service Agreement (“RSA”) with FINRA.
Topaz Exchange has also entered into a facilities management agreement (“FMA”) with ISE.
The Commission believes that it is consistent with the Act for Topaz Exchange to contract with other SROs to perform certain examination, enforcement, and disciplinary functions.
As part of its FMA with ISE, Topaz Exchange proposes to use dual employees to staff its regulatory services program. In other words, current ISE employees will also serve in a similar capacity for Topaz Exchange under the FMA. Topaz Exchange represents that the FMA will contain an obligation on the part of Topaz Exchange and ISE to preserve the other party's information and materials which are confidential, proprietary and/or trade secrets and prevent unauthorized use or disclosure to third parties.
The Commission believes that the use of ISE employees by Topaz Exchange is appropriate, as the operations, rules, and management of ISE and Topaz Exchange will overlap to a considerable degree such that Topaz Exchange should benefit by leveraging the experience of current ISE staff. The Commission has approved such arrangements in a similar context.
Access to Topaz Exchange will be through the use of Exchange Rights.
Membership in Topaz Exchange will be open to any broker-dealer registered under Section 15(b) of the Act that meets the standards for membership set forth in the rules of Topaz Exchange.
Topaz Exchange will have three classes of membership: (1) PMMs; (2) CMMs; and (3) EAMs.
The Commission finds that Topaz Exchange's proposed membership rules are consistent with the Act, including Section 6(b)(2) of the Act,
The Commission notes that pursuant to Section 6(c) of the Act,
In addition, Topaz Exchange also will allow non-members to access Topaz Exchange as “sponsored customers” of a Topaz Exchange member, subject to certain rules.
Topaz Exchange intends to become a participant in the Plan Relating to Options Order Protection and Locked/Crossed Markets or any successor plan (“Linkage Plan”).
Topaz Exchange rules include relevant definitions; establish the conditions pursuant to which members may enter orders in accordance with the Linkage Plan; impose obligations on Topaz Exchange regarding how it must process incoming orders; establish a general standard that members and Topaz Exchange should avoid trade-throughs; establish potential regulatory liability for members that engage in a pattern or practice of trading through other exchanges; and establish obligations with respect to locked and crossed markets.
The Commission believes that Topaz Exchange has proposed rules that are designed to comply with the requirements of the Linkage Plan.
Members of Topaz Exchange may apply to become one of two types of market maker: PMMs or CMMs (collectively, “Market Makers”). Market Makers are entitled to receive certain benefits and privileges in exchange for fulfilling certain affirmative and negative market-making obligations.
To begin the process of registering as a PMM or CMM, a member will be required to file a written application with Topaz Exchange.
In addition, all ISE market makers in good standing will be eligible for an Exchange Right in the same membership category in which they operate on ISE to trade on Topaz Exchange.
Once approved, a Market Maker may seek appointment to make markets in one or more options classes traded on the Topaz Exchange.
Either the Topaz Exchange Board or a committee thereof
The Commission finds that Topaz Exchange's proposed rules for the registration and appointment of Market Makers are consistent with the Act. In particular, Topaz Exchange's rules provide an objective process by which a member could become a Market Maker on Topaz Exchange and provide for oversight by Topaz Exchange to monitor for continued compliance by Market Makers with the terms of their application for such status. The Commission notes that Topaz Exchange's proposed Market Maker registration and appointment requirements are similar to those of other options exchanges.
Pursuant to Topaz Exchange rules, Market Makers will be subject to a number of general obligations. In particular, the transactions of a Market Maker should constitute a course of dealings reasonably calculated to contribute to the maintenance of a fair and orderly market and a Marker Maker should not make bids or offers or enter into transactions that are inconsistent with such a course of dealings.
Further, Market Makers must maintain minimum net capital in accordance with Topaz Exchange rules, including the minimum financial requirement of Topaz Exchange Rule 809, in addition to the Act and rules and regulations thereunder.
Topaz Exchange's rules governing Market Maker quoting obligations are tailored to the specific class of Market Maker (that is, PMM or CMM).
In options classes other than to which it is appointed, a Market Maker should not engage in transactions in an account in which it has an interest that are disproportionate in relation to, or in derogation of, the performance of its market making obligations as specified in the Topaz Exchange rules.
If Topaz Exchange finds any failure by a Market Maker to properly perform as a market maker, such Market Maker may be subject to suspension or termination.
Market Makers receive certain benefits for carrying out their responsibilities.
The Commission believes that a market maker must be subject to sufficient and commensurate affirmative obligations, including the obligation to hold itself out as willing to buy and sell options for its own account on a regular or continuous basis, to justify favorable treatment.
The Commission believes that Topaz Exchange's Market Maker participation requirements impose appropriate affirmative obligations on Topaz Exchange's Market Makers that are commensurate with the benefits afforded to such participants, as discussed above, and, accordingly, are consistent with the Act. The Commission believes that the specific levels of benefits conferred on the different classes of Market Makers (PMMs and CMMs) are appropriately balanced by the obligations imposed by Topaz Exchange's rules. The Commission further believes that Topaz Exchange's market maker requirements,
Finally, the Commission believes that the Act does not mandate a particular market model for exchanges, and while Market Makers may become an important source of liquidity on Topaz Exchange, they will likely not be the only source as Topaz Exchange is designed to match buying and selling interest of all Topaz Exchange participants.
Topaz Exchange proposes to operate a fully automated electronic options trading platform to buy or sell securities with a continuous, automated matching function.
All orders submitted to Topaz Exchange's trading platform must have a designated price and size (limit orders)
Quotes entered by PMMs and CMMs must, like Limit Orders, be priced and have a designated size.
All orders and quotes submitted to Topaz Exchange will be displayed unless designated otherwise by the member submitting the order.
Topaz Exchange will utilize a pro-rata priority scheme with a Priority Customer preference.
In addition, under Topaz Exchange rules, PMMs are granted certain participation entitlements. For example, PMMs will be entitled to a participation entitlement with respect to each incoming order if they have a quote at the NBBO.
These participation entitlements for PMMs are consistent with provisions that the Commission has approved for other exchanges.
Topaz Exchange proposes to make available certain additional order processing and matching features, largely based on features available on ISE.
Members will be able to access Topaz Exchange through a variety of electronic
The Commission believes that Topaz Exchange's proposed display, execution, and priority rules are consistent with the Act. In particular, the Commission finds that the proposed rules are consistent with Section 6(b)(5) of the Act,
Section 11(a)(1) of the Act
Rule 11a2–2(T) under the Act,
In a letter to the Commission,
Rule 11a2–2(T)'s first condition is that the order be executed by an exchange member who is unaffiliated with the member initiating the order. The Commission has stated that the requirement is satisfied when automated exchange facilities, such as the Topaz Exchange system, including the Facilitation, Solicitation and Customer Cross processes, are used, as long as the design of these systems ensures that members do not possess any special or unique trading advantages over non-members in handling their orders after transmitting them to the Exchange.
Second, Rule 11a2–2(T) requires orders for covered accounts to be transmitted from off the exchange floor. Topaz Exchange will not have a physical trading floor, and like other automated systems, will receive orders electronically through remote terminals or computer-to-computer interfaces. In the context of other automated trading systems, the Commission has found that the off-floor transmission requirement is met if a covered account order is transmitted from a remote location directly to an exchange's floor by electronic means.
Third, Rule 11a2–2(T) requires that the member not participate in the execution of its order once it has been transmitted to the member performing the execution.
Fourth, in the case of a transaction effected for an account with respect to which the initiating member or an associated person thereof exercises investment discretion, neither the initiating member nor any associated person thereof may retain any compensation in connection with effecting the transaction, unless the person authorized to transact business for the account has expressly provided otherwise by written contract referring to Section 11(a) of the Act and Rule 11a2–2(T).
Section 11(a)(1)(G) of the Act provides an additional exemption from the general prohibition set forth in Section 11(a)(1) for any transaction for a member's own account, provided that: (i) Such member is primarily engaged in certain underwriting, distribution, and other activities generally associated with broker-dealers and whose gross income is derived principally from such business and related activities; and (ii) the transaction is effected in compliance with the rules of the Commission, which, as a minimum, assure that the transaction is not inconsistent with the maintenance of fair and orderly markets and yields priority, parity, and precedence in execution to orders for the account of persons who are not members or associated with members of the exchange.
Topaz Exchange represented that its Price Improvement Mechanism, or PIM, is a process set forth in Topaz Exchange Rule 723 whereby an EAM can provide price improvement opportunities for a transaction.
As noted above, one prerequisite for the Commission's grant of an exchange's application for registration is that a proposed exchange must be so organized and have the capacity to be able to carry out the purposes of the Act.
Topaz Exchange rules codify Topaz Exchange's disciplinary jurisdiction over its members, thereby facilitating its ability to enforce its members' compliance with its rules and the federal securities laws.
Topaz Exchange's disciplinary and oversight functions will be administered in accordance with Chapter 16 of the Topaz Exchange rules, which
Upon a finding of probable cause of a violation within the disciplinary jurisdiction of Topaz Exchange and where further proceedings are warranted,
Appeals from any determination that impacts access to Topaz Exchange, such as termination or suspension of membership, will be instituted under, and governed by, the provisions in the Chapter 17 of the Topaz Exchange rules, which incorporates by reference the provisions in Chapter 17 of ISE rules. Topaz Exchange's Chapter 17 applies to persons economically aggrieved by any of the following actions of Topaz Exchange including, but not limited to: (a) Denial of an application to become a Member; (b) barring a person from becoming associated with a Member; and (c) limiting or prohibiting services provided by the Topaz Exchange or services of any exchange member.
Any person aggrieved by an action of Topaz Exchange within the scope of the Chapter 17 may file a written application to be heard within thirty days
The Commission finds that Topaz Exchange's proposed disciplinary and oversight rules and structure, as well as its proposed process for persons economically aggrieved by certain Topaz Exchange actions, are consistent with the requirements of Sections 6(b)(6) and 6(b)(7) of the Act
Topaz Exchange does not intend to offer original listings when it commences operations. Instead, Topaz Exchange will list and trade only standardized option contracts that are listed on other national securities exchanges and cleared by the Options Clearing Corporation.
Topaz Exchange proposes to incorporate by reference certain ISE, CBOE, NYSE and FINRA rules.
In connection with the proposal to incorporate the ISE, CBOE, NYSE and FINRA rules by reference, Topaz Exchange requested, pursuant to Rule 240.0–12 under the Act,
Using the authority under Section 36 of the Act, the Commission previously exempted certain SROs from the requirement to file proposed rule changes under Section 19(b) of the Act.
A.
B.
C.
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F.
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Options Fee Schedule (“Fee Schedule”) with respect to cap on fees for Firm and Broker Dealer open outcry executions. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Fee Schedule with respect to the cap on fees for Firm and Broker Dealer open outcry executions.
Currently, there is a $100,000 cap per month on Proprietary fees and Broker Dealer fees for transactions in standard option contracts cleared in the customer range for open outcry executions, exclusive of strategy executions, royalty fees, and Firm trades executed via a Joint Back Office (“JBO”) agreement.
The proposed change is not intended to address any other issues, and the Exchange is not aware of any problems that Firms or Broker Dealers would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed change is reasonable because it will provide better notice about how to qualify for the fee cap. The Exchange further believes that the fee cap is equitable and not unfairly discriminatory because it is designed to encourage Firms and Broker Dealers to engage in a high level of open outcry executions, which will increase liquidity on the Exchange and benefit all market participants. The Exchange believes that it is equitable and not unfairly discriminatory to offer the fee cap to Firms and Broker Dealers, and not other market participants, because its purpose is to attract large block order flow to the floor of the Exchange, where such orders can be better handled in comparison with electronic orders that are not negotiable.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition. For these
In accordance with Section 6(b)(8) of the Act,
The Exchange 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 credits available at other venues to be more favorable. In such an environment, the Exchange must set its fees and credits so that it remains competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees and credits in response, and because market participants may readily adjust their trading practices, the Exchange believes that the degree to which fee or credit changes in this market may impose any burden on competition is extremely limited. As a result of all of these considerations, the Exchange does not believe that the proposed change will impair the ability of its market participants or competing order execution venues to maintain their competitive standing in the financial markets.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such 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 under Section 19(b)(2)(B)
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.
Notice is hereby given that the Securities and Exchange Commission (“Commission”) has issued an Order, pursuant to Section 17(d) of the Securities Exchange Act of 1934 (“Act”),
Section 19(g)(1) of the Act,
Section 17(d)(1) of the Act
To implement Section 17(d)(1), the Commission adopted two rules: Rule 17d–1 and Rule 17d–2 under the Act.
To address regulatory duplication in these and other areas, the Commission adopted Rule 17d–2 under the Act.
On September 8, 1983, the Commission approved the SRO participants' plan for allocating regulatory responsibilities pursuant to Rule 17d–2.
The plan reduces regulatory duplication for a large number of firms currently members of two or more of the SRO participants by allocating regulatory responsibility for certain options-related sales practice matters to one of the SRO participants. Generally, under the plan, the SRO participant responsible for conducting options-related sales practice examinations of a firm, and investigating options-related customer complaints and terminations for cause of associated persons of that firm, is known as the firm's “Designated Options Examining Authority” (“DOEA”). Pursuant to the plan, any other SRO of which the firm is a member is relieved of these responsibilities during the period in which the firm is assigned to another SRO acting as that firm's DOEA.
On June 21, 2013, FINRA and Topaz submitted a proposed amendment to the Plan. The purpose of the amendment is to add Topaz as a Participant to the Plan. The text of the proposed amended
Agreement by and among BATS Exchange, Inc., BOX Options Exchange, LLC, the Chicago Board Options Exchange, Incorporated, C2 Options Exchange, Incorporated, the International Securities Exchange, LLC, Financial Industry Regulatory Authority, Inc., Miami International Securities Exchange, LLC, the New York Stock Exchange LLC, the NYSE MKT LLC, the NYSE Arca, Inc., The NASDAQ Stock Market LLC, NASDAQ OMX BX, Inc. [and], the NASDAQ OMX PHLX LLC
This agreement (“Agreement”), by and among BATS Exchange, Inc., BOX Options Exchange, LLC, the Chicago Board Options Exchange, Incorporated, C2 Options Exchange, Incorporated, the International Securities Exchange, LLC, Financial Industry Regulatory Authority, Inc. (“FINRA”), Miami International Securities Exchange, LLC, The NASDAQ Stock Market LLC (“NASDAQ”), NASDAQ OMX BX, Inc., the New York Stock Exchange LLC (“NYSE”), the NYSE MKT LLC, the NYSE Arca, Inc., [and] the NASDAQ OMX PHLX LLC,
This Agreement amends and restates the agreement entered into among the Participants on [April 25]
I. As used herein the term Designated Options Examining Authority (“DOEA”) shall mean: (1) FINRA insofar as it shall perform Regulatory Responsibility (as hereinafter defined) for its broker-dealer members that also are members of another Participant or (2) the Designated Examination Authority (“DEA”) pursuant to SEC Rule 17d–1 under the Securities Exchange Act (“Rule 17d–1”) for a broker-dealer that is a member of a more than one Participant (but not a member of FINRA).
II. As used herein, the term “Regulatory Responsibility” shall mean the examination and enforcement responsibilities relating to compliance by Common Members with the rules of the applicable Participant that are substantially similar to the rules of the other Participants (the “Common Rules”), insofar as they apply to the conduct of accounts for Covered Securities. A list of the current Common Rules of each Participant applicable to the conduct of accounts for Covered Securities is attached hereto as Exhibit A. Each year within 30 days of the anniversary date of the commencement of operation of this Agreement, each Participant shall submit in writing to FINRA and each DEA performing as a DOEA for any members of such Participant any revisions to Exhibit A reflecting changes in the rules of the Participant, and confirm that all other rules of the Participant listed in Exhibit A continue to meet the definition of Common Rules as defined in this Agreement. Within 30 days from the date that FINRA and each DEA performing as a DOEA has received revisions and/or confirmation that no change has been made to Exhibit A from all Participants, FINRA and each DEA performing as a DOEA shall confirm in writing to each Participant whether the rules listed in any updated Exhibit A are Common Rules as defined in this Agreement. Notwithstanding anything herein to the contrary, it is explicitly understood that the term “Regulatory Responsibility” does not include, and each of the Participants shall (unless allocated pursuant to Rule 17d–2 otherwise than under this Agreement) retain full responsibility for, each of the following:
(a) Surveillance and enforcement with respect to trading activities or practices involving its own marketplace, including without limitation its rules relating to the rights and obligations of specialists and other market makers;
(b) Registration pursuant to its applicable rules of associated persons;
(c) Discharge of its duties and obligations as a DEA; and
(d) Evaluation of advertising, responsibility for which shall remain with the Participant to which a Common Member submits same for approval.
III. Apparent violations of another Participant's rules discovered by a DOEA, but which rules are not within the scope of the discovering DOEA's Regulatory Responsibility, shall be referred to the relevant Participant for such action as the Participant to which such matter has been referred deems appropriate. Notwithstanding the foregoing, nothing contained herein shall preclude a DOEA in its discretion from requesting that another Participant conduct an enforcement proceeding on a matter for which the requesting DOEA has Regulatory Responsibility. If such other Participants agree, the Regulatory Responsibility in such case shall be deemed transferred to the accepting Participant and confirmed in writing by the Participants involved. Each Participant agrees, upon request, to make available promptly all relevant files, records and/or witnesses necessary to assist another Participant in an investigation or enforcement proceeding.
IV. The Council shall be composed of one representative designated by each of the Participants. Each Participant shall also designate one or more persons as its alternate representative(s). In the absence of the representative of a Participant, such alternate representative shall have the same powers, duties and responsibilities as the representative. Each Participant may, at any time, by notice to the then Chair of the Council, replace its representative and/or its alternate
V. The Council shall determine the times and locations of Council meetings, provided that the Chair, acting alone, may also call a meeting of the Council in the event the Chair determines that there is good cause to do so. To the extent reasonably possible, notice of any meeting shall be given at least ten-business days prior thereto. Notwithstanding anything herein to the contrary, representatives shall always be given the option of participating in any meeting telephonically at their own expense rather than in person.
VI. FINRA shall have Regulatory Responsibility for all Common Members that are members of FINRA. For the purpose of fulfilling the Participants' Regulatory Responsibilities for Common Members that are not members of FINRA, the Participant that is the DEA shall serve as the DOEA. All Participants shall promptly notify the DOEAs no later than the next scheduled meeting of any change in membership of Common Members. A DOEA may request that a Common Member that is allocated to it be reallocated to another DOEA by giving thirty days written notice thereof. The DOEAs in their discretion may approve such request and reallocate such Common Member to another DOEA.
VII. Each DOEA shall conduct an examination of each Common Member. The Participants agree that, upon request, relevant information in their respective files relative to a Common Member will be made available to the applicable DOEA. At each meeting of the Council, each DOEA shall be prepared to report on the status of its examination program for the previous quarter and any period prior thereto that has not previously been reported to the Council.
VIII. Each DOEA will promptly furnish a copy of the Examination report, relating to Covered Securities, of any examination made pursuant to the provisions of this Agreement to each other Participant of which the Common Member examined is a member.
IX. Each DOEA's Regulatory Responsibility shall for each Common Member allocated to it include investigations into terminations “for cause” of associated persons relating to Covered Securities, unless such termination is related solely to another Participant's market. In the latter instance, that Participant to whose market the termination for cause relates shall discharge Regulatory Responsibility with respect to such termination for cause. In connection with a DOEA's examination, investigation and/or enforcement proceeding regarding a Covered Security-related termination for cause, the other Participants of which the Common Member is a member shall furnish, upon request, copies of all pertinent materials related thereto in their possession. As used in this Section, “for cause” shall include, without limitation, terminations characterized on Form U5 under the label “Permitted to Resign,” “Discharge” or “Other.”
X. Each DOEA shall discharge the Regulatory Responsibility for each Common Member allocated to it relative to a Covered Securities-related customer complaint
XI. Any written notice required or permitted to be given under this Agreement shall be deemed given if sent by certified mail, return receipt requested, or by a comparable means of electronic communication to each Participant entitled to receipt thereof, to the attention of the Participant's representative on the Council at the Participant's then principal office or by email at such address as the representative shall have filed in writing with the Chair.
XII. The Participants shall notify the Common Members of this Agreement by means of a uniform joint notice approved by the Council.
XIII. This Agreement may be amended to add a new Participant provided that such Participant does not assume Regulatory Responsibility, solely by an amendment by FINRA and such new Participant. All other Participants expressly consent to allow FINRA to add new Participants to this Agreement as provided above. FINRA will promptly notify all Participants of any such amendments to add new Participants. All other amendments to this Agreement must be approved in writing by each Participant. All amendments, including adding a new Participant, must be filed with and approved by the SEC before they become effective.
XIV. Any of the Participants may manifest its intention to cancel its participation in this Agreement at any time by giving the Council written notice thereof at least 90 days prior to the effective date of such cancellation. Upon receipt of such notice the Council shall allocate, in accordance with the provisions of this Agreement, any Common Members for which the petitioning party was the DOEA. Until such time as the Council has completed the reallocation described above; the petitioning Participant shall retain all its rights, privileges, duties and obligations hereunder.
XV. The cancellation of its participation in this Agreement by any Participant shall not terminate this Agreement as to the remaining Participants. This Agreement will only terminate following notice to the Commission, in writing, by the then Participants that they intend to terminate the Agreement and the expiration of the applicable notice period. Such notice shall be given at least six months prior to the intended date of termination, provided that in the event a notice of cancellation is received from a Participant that, assuming the effectiveness thereof, would result in there being just one remaining member of the Council, notice to the Commission of termination of this Agreement shall be given promptly upon the receipt of such notice of cancellation, which termination shall be effective upon the effectiveness of the cancellation that triggered the notice of termination to the Commission.
XVI. No Participant nor the Council nor any of their respective directors, governors, officers, employees or representatives shall be liable to any other Participant in this Agreement for any liability, loss or damage resulting from or claimed to have resulted from any delays, inaccuracies, errors or omissions with respect to the provision of Regulatory Responsibility as provided hereby or for the failure to provide any such Responsibility, except with respect to such liability, loss or damages as shall have been suffered by one or more of the Participants and caused by the willful misconduct of one or more of the
XVII. Pursuant to Section 17(d)(1)(A) of the Securities Exchange Act of 1934 and Rule 17d–2 promulgated pursuant thereto, the Participants join in requesting the Securities and Exchange Commission, upon its approval of this Agreement or any part thereof, to relieve those Participants which are from time to time participants in this Agreement which are not the DOEA as to a Common Member of any and all Regulatory Responsibility with respect to the matters allocated to the DOEA.
Pursuant to Section II of the Agreement by and among BATS Exchange, Inc. (“BATS”), BOX Options Exchange, LLC (“BOX”), the Chicago Board Options Exchange, Incorporated (“CBOE”), C2 Options Exchange, Incorporated (“C2”), the International Securities Exchange, LLC (“ISE”), Financial Industry Regulatory Authority, Inc. (“FINRA”), Miami International Securities Exchange, LLC (“MIAX”), The NASDAQ Stock Market LLC (“NASDAQ”), NASDAQ OMX BX, Inc. (“BX”), the New York Stock Exchange LLC (“NYSE”), the NYSE MKT LLC (“NYSE MKT”), the NYSE Arca, Inc. (“NYSE ARCA”), [and] the NASDAQ OMX PHLX LLC (“PHLX”)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing. 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.
The Commission continues to believe that the proposed plan is an achievement in cooperation among the SRO participants. The Plan, as amended, will reduce unnecessary regulatory duplication by allocating to the designated SRO the responsibility for certain options-related sales practice matters that would otherwise be performed by multiple SROs. The plan promotes efficiency by reducing costs to firms that are members of more than one of the SRO participants. In addition, because the SRO participants coordinate their regulatory functions in accordance with the plan, the plan promotes, and will continue to promote, investor protection.
Under paragraph (c) of Rule 17d–2, the Commission may, after appropriate notice and comment, declare a plan, or any part of a plan, effective. In this instance, the Commission believes that appropriate notice and comment can take place after the proposed amendment is effective. The primary purpose of the amendment is to add Topaz as an SRO participant. By declaring it effective today, the amended Plan can become effective and be implemented without undue delay.
This order gives effect to the amended Plan submitted to the Commission that is contained in File No. S7–966.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
FINRA is proposing to amend FINRA Rules 6271 and 6272 regarding the requirements for members seeking registration as FINRA Alternative Display Facility (“ADF”) Market Participants.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The ADF is a quotation collection and trade reporting facility. It provides ADF Market Participants (i.e., ADF-registered market makers or electronic communications networks (“ECNs”))
The ADF was initially approved by the Commission on July 24, 2002, in
Similar to rules applicable to exchange market makers, ADF Market Participants (i.e., either Registered Reporting ADF Market Makers or Registered Reporting ADF ECNs)
Since the ADF was launched in 2002, no member has registered with FINRA as a Registered Reporting ADF Market Maker, and there have been four members that, at various points in time, were registered as Registered Reporting ADF ECNs.
Beginning in 2011, FINRA began the process of updating and migrating all of its transparency facilities (including the FINRA Trade Reporting Facilities, the Trade Reporting and Compliance Engine (“TRACE”), and the ADF) off of independent technology platforms and onto a new, single, updated technology platform known as the Multi Product Platform (“MPP”).
Recently, several members have approached FINRA to discuss the possibility of becoming an ADF Market Participant, and some have asked whether the migration of the ADF to MPP could be accelerated. As discussed more fully below, the timeframe to bring the new ADF base infrastructure live can be accelerated in the MPP rollout schedule. However, to do so necessarily means delaying the migration of other FINRA facilities onto MPP, reallocating resources, shifting scheduling, and implementing ADF-specific enhancements and hosting in the new technology environment—all of which impose significant costs on FINRA, including prolonging the substantially higher expenses associated with the legacy OTC Equity Trade Reporting Facility (“ORF”) infrastructure (i.e., legacy ORF support costs are significantly higher than the expected costs of supporting the ORF in the new MPP technology environment).
In addition to the costs of accelerating the migration of the ADF onto MPP, bringing the new ADF base infrastructure live in the MPP technology environment to accommodate an ADF Market Participant will impose significant direct costs on FINRA related to building and testing the new ADF component on the MPP infrastructure and also related to paying for SIP capacity usage allocations. Consuming real time data feeds for ADF system price validation and other purposes will impose additional costs. General staff labor, support, and testing will impose related costs on FINRA as well. In aggregate, the MPP component re-sequencing necessary to accommodate ADF acceleration and the costs associated with bringing the ADF base infrastructure live will conservatively cost FINRA in excess of $3 million.
If the ADF MPP launch is accelerated, FINRA believes an ADF Market Participant could be live on the ADF by the end of 2013. If the ADF MPP launch is not accelerated, FINRA intends to have the ADF base infrastructure prepared for a participant by mid-2014, and a participant could be live on the ADF at the earliest six months after the base layer functionality is complete (i.e., approximately late 2014 or early 2015).
The proposed rule change would consolidate into a single rule (FINRA Rule 6271) the existing requirements that a member must meet to register as an ADF Market Participant and introduce new requirements that potential ADF Market Participants must meet to participate on the ADF. These new requirements are intended to mitigate the substantial financial risks to FINRA, discussed above, of accelerating the migration of the ADF onto MPP or of building out the ADF base platform to accommodate an ADF Market Participant.
As amended by the proposed rule change, FINRA Rule 6271 would specify that a member seeking registration as an ADF Market Participant must (i) file an application with FINRA, (ii) execute the Certification Record, and (iii) execute a Participant Agreement. Rule 6271(a)(1) would require a potential ADF Market Participant to file an application with FINRA in which the member:
• Specifies whether the member is seeking registration in Nasdaq and/or CQS securities;
• Certifies the member's good standing with FINRA;
• Demonstrates compliance with the net capital and other financial responsibility provisions of the Exchange Act;
• Provides FINRA with reasonable monthly projections of the volume of data that the member anticipates submitting to the ADF;
• Agrees to submit the ADF Deposit Amount
• Agrees that failing to submit quotes and report trades to the ADF for a term of two years will result in the forfeiture of some or all of the ADF Deposit Amount;
• Agrees that failing to submit 75% of both its quote and trade volume in NMS stocks will result in the forfeiture of some or all of the ADF Deposit Amount; and
• Agrees to the other ADF Deposit Terms, which are the same for all members and are described below.
The first three requirements of the application, which specify whether the member is seeking registration in Nasdaq and/or CQS securities, certify the member's good standing with FINRA, and demonstrate compliance with the net capital and other financial responsibility provisions of the Act, are the same as the requirements currently in Rule 6271(b). Members who are Trading Centers, as defined in Rule 600(b)(78) of SEC Regulation NMS,
The proposed rule change would add several new requirements into the application that members must complete to become ADF Market Participants. The new provisions require that a member seeking to become an ADF Market Participant: (i) Provide FINRA with reasonable monthly projections of the volume of data that the member anticipates submitting to the ADF; (ii) agree to submit the ADF Deposit Amount in five equal installments into an escrow account at a bank mutually acceptable to the member and FINRA on a timetable as agreed to by the member and FINRA; (iii) agree that failing to submit quotes and report trades to the ADF for a two-year period will result in the forfeiture of some or all of the ADF Deposit Amount; (iv) agree that failing to submit 75% of the member's trade and quote volume in NMS stocks to the ADF will result in the forfeiture of some or all of the ADF Deposit Amount; and (v) agree to the other ADF Deposit Terms set forth in the rule.
The new provisions are intended to ensure that FINRA can recover a portion of the costs associated with accelerating the migration of the ADF to MPP and bringing a new ADF Market Participant onto the ADF if the ADF Market Participant fails to participate on the ADF as anticipated. As noted above, FINRA is currently in the process of creating a new ADF platform as part of its efforts to migrate all FINRA facilities onto MPP. Under the current timeframe, the ADF base infrastructure is scheduled to be available on the new platform by no sooner than mid-2014; however, it is possible for FINRA to rearrange the scheduling priority and have the ADF available for new ADF Market Participants potentially as early as late-2013. As described above, altering the timetable imposes significant costs on FINRA associated with delaying the retirement of other products, diverting effort and resources from the current MPP roll-out schedule, and delaying the termination of other product legacy fee structures. Moreover, as noted above, even after the base infrastructure for the ADF is otherwise completed, the transition of an ADF Market Participant onto the MPP infrastructure will impose substantial development costs and staff effort costs on FINRA. The new provisions set out in the proposed rule change are intended to ensure that FINRA will be able to recover a portion of the costs incurred as a result of accommodating a member's request to accelerate the migration of the ADF to MPP or building out the ADF platform to accommodate the member's volume projections should the member fail to participate on the ADF as anticipated.
Pursuant to the proposed rule change, potential ADF Market Participants must provide FINRA with reasonable monthly projections of the volume of data that the member anticipates submitting to the ADF. In addition, the potential ADF Market Participant must agree to quote on and report trades to the ADF for a two-year term and to submit at least 75% of both its quote and trade volume to the ADF. If the ADF Market Participant fails to meet one of these obligations, it will forfeit some or all of the ADF Deposit Amount. These requirements serve two primary purposes: (1) They provide FINRA the information necessary to ensure the ADF can accommodate the volume of data the member anticipates submitting to the ADF and (2) they establish the basis upon which FINRA will be safeguarded by ensuring that the potential ADF Market Participant will bear some of the financial responsibility should FINRA undertake the efforts and incur the costs necessary to bring the ADF Market Participant onto the ADF, only to have the ADF Market Participant fail to participate at all or at the level agreed to.
To ensure the volume commitments are met, the proposed rule change requires potential ADF Market Participants to agree to submit an “ADF Deposit Amount” in five equal installments into an escrow account at a bank mutually acceptable to the member and FINRA on a timetable as agreed to by the member and FINRA. The proposed rule change defines the “ADF Deposit Amount” as $500,000 if the member requests that FINRA accelerate the ADF migration or if the member begins quoting on or reporting trades to the ADF within 90 calendar days after an ADF Market Participant that requested acceleration of the ADF migration begins quoting on or reporting trades to the ADF. For all other ADF Participants, the ADF Deposit Amount is $250,000.
FINRA is proposing to establish the two separate levels of the ADF Deposit Amount referenced above in order to reflect the differing costs FINRA will incur under either of two scenarios. Because FINRA will incur significantly higher costs if the migration of the ADF is accelerated at a member's request, FINRA has proposed an ADF Deposit Amount of $500,000 should the member request such acceleration. Additionally, to ensure that ADF Market Participants benefitting from an acceleration of the ADF onto MPP are treated equally, FINRA proposes to charge $500,000 to any member that begins quoting on or reporting trades to the ADF within ninety (90) days after an existing ADF Market Participant that requested acceleration of the ADF migration begins quoting on or reporting trades to the ADF. FINRA believes that this
The proposed rule change would reduce the ADF Deposit Amount to $250,000 if the member has not requested an accelerated migration or does not become an ADF Market Participant within 90 days after another ADF Market Participant that had requested acceleration (i.e., paid an escrow amount of $500,000) begins quoting on or reporting trades to the ADF. The lower amount reflects the fact that the costs to FINRA are significantly reduced under these circumstances because the ADF base platform will have already been migrated to MPP. However, although reduced, FINRA anticipates such costs will still be significantly higher than the $250,000 deposit amount in such a scenario based on costs related to possible additional hardware and software deployments, paying for SIP capacity usage allocations, and costs related to general staff labor, support and testing.
FINRA notes that the ADF Deposit Amount will be the same for any member seeking to become an ADF Market Participant, regardless of the member's overall anticipated quotation and trading volume. Because the costs incurred by FINRA to migrate the ADF and to build it out do not vary significantly as a result of the volume of the ADF Market Participant's trading activity, FINRA believes it is fair and equitable to require each prospective ADF Market Participant to submit the same amount into escrow.
The proposed rule change includes several required terms for the handling of the ADF Deposit Amount (referred to as “ADF Deposit Terms”), including the methods for ADF Market Participants to recover some or all of the ADF Deposit Amount as a result of meeting its participation commitments (or due to FINRA's inability to meet its obligations) and methods for FINRA to receive the funds if commitments are not met. The proposed rule change retains some flexibility in the precise terms of any agreements between FINRA and potential ADF Market Participants to ensure that any unique circumstances can be addressed by permitting de minimis additions or qualifications to the ADF Deposit Terms, provided both FINRA and the member agree to those additions or qualifications.
The proposed rule change includes a means for ADF Market Participants to earn back the ADF Deposit Amount. Specifically, the proposed rule change provides that for every $1.00 received by FINRA from the National Market System (“NMS”) SIP data plans associated with ADF activity attributable, as determined in FINRA's sole discretion, to the member's trading activity on the ADF, the member shall receive $0.50 out of the escrow account. Thus, in essence, an ADF Market Participant will recover an amount equal to one-half of the SIP market data revenue generated by the ADF Market Participant's trading activity on the ADF. The ADF Market Participant's recovery would be paid on a quarterly basis after FINRA has received its quarterly disbursement from the NMS SIP data plans.
In addition, the proposed rule change provides that the ADF Market Participant is only entitled to receive an amount up to 80% of the ADF Deposit Amount pursuant to this provision and is not entitled to the remaining 20% of the ADF Deposit Amount until the end of the two-year term, assuming its trading activity has earned the requisite market data revenue from the SIPs. To the extent that the ADF Market Participant opts to stop participating on the ADF before the end of the two-year term or stop meeting its volume commitment before the end of the two-year term (i.e., chooses to quote or trade through another trading venue), it would be free to do so but could potentially forfeit some or all of the remaining ADF Deposit Amount.
If FINRA does not make the ADF available within nine months of an ADF Market Participant's first deposit of the ADF Deposit Amount into the escrow account, one-fifth of the ADF Deposit Amount will be released from such escrow account to the ADF Market Participant. An additional one-fifth of the initial ADF Deposit Amount will be released to the ADF Market Participant every month thereafter that FINRA has not made the ADF available, until all funds have been released from such escrow account.
The proposed rule change also includes provisions designed to protect FINRA if a member requests that the ADF be migrated to MPP on an accelerated basis or if FINRA undertakes efforts to build out the system to support the member, and in either instance, the member fails to participate. The proposed rule change provides that one-fifth of the ADF Deposit Amount shall be released to FINRA if, in any calendar month beginning with the fourth calendar month following certification of the ADF Market Participant to quote on or report trades to the ADF, the ADF Market Participant fails to submit 75% of the member's quoting and trade reporting activity to the ADF. In addition, if a member is sold (other than a sale to an entity that would otherwise meet the FINRA qualifications as an ADF Market Participant), goes out of business, otherwise does not meet its obligations, or fails to complete the process for becoming an ADF Market Participant, the member will forfeit the ADF Deposit Amount, or any lesser amount remaining in the escrow account, and all funds will be released from such escrow account to FINRA.
Finally, the proposed rule change would make clear that a member would become an ADF Market Participant only after (i) the member received a notice of approval from FINRA that its application was accepted, (ii) the member executed the Certification Record, and (iii) FINRA executed the Participant Agreement.
FINRA will announce the effective date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. FINRA believes that members that choose to use the ADF should bear responsibility for costs incurred in accelerating the ADF's migration or in otherwise building out the ADF. The decision to request acceleration or to use the ADF to display quotations or orders lies solely with the member. Further, members are able to recover the full amount of their ADF Deposit Amount by meeting the terms of the agreement. Although a member would be required to provide a commitment to quote on and report trades to the ADF, it always retains the option to leave the ADF or choose to quote or trade through another trading venue, but must bear certain financial consequences associated with that choice.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an 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 17(d) of the Securities Exchange Act of 1934 (“Act”),
Section 19(g)(1) of the Act,
Section 17(d)(1) of the Act
To implement Section 17(d)(1), the Commission adopted two rules: Rule 17d–1 and Rule 17d–2 under the Act.
To address regulatory duplication in these and other areas, the Commission adopted Rule 17d–2 under the Act.
The proposed 17d–2 Plan is intended to reduce regulatory duplication for firms that are common members of both Topaz and FINRA.
The text of the Plan delineates the proposed regulatory responsibilities with respect to the Parties. Included in the proposed Plan is an exhibit (the “Topaz Certification of Common Rules,” referred to herein as the “Certification”) that lists every Topaz rule for which FINRA would bear responsibility under the Plan for overseeing and enforcing with respect to Topaz members that are also members of FINRA and the associated persons therewith (“Dual Members”).
Specifically, under the 17d–2 Plan, FINRA would assume examination and enforcement responsibility relating to compliance by Dual Members with the rules of Topaz that are substantially similar to the applicable rules of FINRA,
Under the Plan, Topaz would retain full responsibility for surveillance and enforcement with respect to trading activities or practices involving Topaz's own marketplace, including, without limitation, registration pursuant to its applicable rules of associated persons (
The text of the proposed 17d–2 Plan is as follows:
This Agreement, by and between Financial Industry Regulatory Authority, Inc. (“FINRA”) and Topaz Exchange, LLC (“Topaz”), is made this 21st day of June, 2013 (the “Agreement”), pursuant to Section 17(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 17d–2 thereunder which permits agreements between self-regulatory organizations to allocate regulatory responsibility to eliminate regulatory duplication. FINRA and Topaz may be referred to individually as a “party” and together as the “parties.”
1. Definitions. Unless otherwise defined in this Agreement or the context otherwise requires, the terms used in this Agreement shall have the same meaning as they have under the Exchange Act and the rules and regulations thereunder. As used in this Agreement, the following terms shall have the following meanings:
(a) “
(b) “
(c) “
(d) “
(e) “
(f) “
2. Regulatory and Enforcement Responsibilities. FINRA shall assume Regulatory Responsibilities and Enforcement Responsibilities for Dual Members. Attached as
(a) Surveillance and enforcement with respect to trading activities or practices involving Topaz's own marketplaces, including without limitation Topaz's Rules relating to the rights and obligations of market makers;
(b) Registration pursuant to its applicable rules of associated persons (i.e., registration rules that are not Common Rules);
(c) Discharge of its duties and obligations as a Designated Examining Authority pursuant to Rule 17d–1 under the Exchange Act; and
(d) Any Topaz Rules that are not Common Rules.
3. Dual Members. Prior to the Effective Date, Topaz shall furnish FINRA with a current list of Dual Members, which shall be updated no less frequently than once each quarter.
4. No Charge. There shall be no charge to Topaz by FINRA for performing the Regulatory Responsibilities and Enforcement Responsibilities under this Agreement except as hereinafter provided. FINRA shall provide Topaz with ninety (90) days advance written notice in the event FINRA decides to impose any charges to Topaz for performing the Regulatory Responsibilities under this Agreement. If FINRA determines to impose a charge, Topaz shall have the right at the time of the imposition of such charge to terminate this Agreement; provided, however, that FINRA's Regulatory Responsibilities under this Agreement shall continue until the Commission approves the termination of this Agreement.
5. Reassignment of Regulatory Responsibilities. Notwithstanding any provision hereof, this Agreement shall be subject to any statute, or any rule or order of the Commission, or effective industry agreement, restructuring the regulatory framework of the securities industry or reassigning Regulatory Responsibilities between self-regulatory organizations. To the extent such action is inconsistent with this Agreement, such action shall supersede the provisions hereof to the extent necessary for them to be properly effectuated and the provisions hereof in that respect shall be null and void.
6. Notification of Violations. In the event that FINRA becomes aware of apparent violations of any Topaz Rules, which are not listed as Common Rules, discovered pursuant to the performance of the Regulatory Responsibilities assumed hereunder, FINRA shall notify Topaz of those apparent violations for such response as Topaz deems appropriate. In the event Topaz becomes aware of apparent violations of the Common Rules, discovered pursuant to the performance of the Retained Responsibilities, Topaz shall notify FINRA of those apparent violations and such matters shall be handled by FINRA as provided in this Agreement. Apparent violations of all the Common Rules shall be processed by, and enforcement proceedings in respect thereto shall be conducted by FINRA as provided hereinbefore; provided, however, that in the event a Dual Member is the subject of an investigation relating to a transaction on Topaz, Topaz may in its discretion assume concurrent jurisdiction and responsibility. Each party agrees to make available promptly all files, records and witnesses necessary to assist the other in its investigation or proceedings.
7. Continued Assistance. FINRA shall make available to Topaz all information obtained by FINRA in the performance by it of the Regulatory Responsibilities hereunder in respect to the Dual Members subject to this Agreement. In particular, and not in limitation of the foregoing, FINRA shall furnish Topaz any information it obtains about Dual Members which reflects adversely on their financial condition. It is understood that such information is of an extremely sensitive nature and, accordingly, Topaz acknowledges and agrees to take all reasonable steps to maintain its confidentiality. Topaz shall make available to FINRA any information coming to its attention that reflects adversely on the financial condition of Dual Members or indicates possible violations of applicable laws, rules or regulations by such firms.
8. Dual Member Applications.
(a) Dual Members subject to this Agreement shall be required to submit, and FINRA shall be responsible for processing and acting upon all applications submitted on behalf of allied persons, partners, officers, registered personnel and any other person required to be approved by the Topaz Rules and FINRA Rules or associated with Dual Members thereof. Upon request, FINRA shall advise
(b) Dual Members shall be required to send to FINRA all letters, termination notices or other material respecting the individuals listed in paragraph 8(a).
(c) When as a result of processing such submissions FINRA becomes aware of a statutory disqualification as defined in the Exchange Act with respect to a Dual Member, FINRA shall determine pursuant to Sections 15A(g) and/or Section 6(c) of the Exchange Act the acceptability or continued applicability of the person to whom such disqualification applies and keep Topaz advised of its actions in this regard for such subsequent proceedings as Topaz may initiate.
(d) Notwithstanding the foregoing, FINRA shall not review the membership application, reports, filings, fingerprint cards, notices, or other writings filed to determine if such documentation submitted by a broker or dealer, or a person associated therewith or other persons required to register or qualify by examination: (i) Meets the Topaz requirements for general membership or for specified categories of membership or participation in Topaz, such as (A) Primary Market Maker Membership (“PMM”); (B) Competitive Market Maker Membership (“CMM”); (C) Electronic Access Membership (“EAM”) (or any similar type of Topaz membership or participation that is created after this Agreement is executed); or (ii) meets the Topaz requirements to be associated with, or employed by, a Topaz member or participant in any capacity, such a Designated Trading Representative (“DTR”) (or any similar type of participation, employment category or title, or associate-person category or class that is created after this Agreement is executed). FINRA shall not review applications or other documentation filed to request a change in the rights or status described in this paragraph 8(d), including termination or limitation on activities, of a member or a participant of Topaz, or a person associated with, or requesting association with, a member or participant of Topaz.
9. Branch Office Information. FINRA shall also be responsible for processing and, if required, acting upon all requests for the opening, address changes, and terminations of branch offices by Dual Members and any other applications required of Dual Members with respect to the Common Rules as they may be amended from time to time. Upon request, FINRA shall advise Topaz of the opening, address change and termination of branch and main offices of Dual Members and the names of such branch office managers.
10. Customer Complaints. Topaz shall forward to FINRA copies of all customer complaints involving Dual Members received by Topaz relating to FINRA's Regulatory Responsibilities under this Agreement. It shall be FINRA's responsibility to review and take appropriate action in respect to such complaints.
11. No Restrictions on Regulatory Action. Nothing contained in this Agreement shall restrict or in any way encumber the right of either party to conduct its own independent or concurrent investigation, examination or enforcement proceeding of or against Dual Members, as either party, in its sole discretion, shall deem appropriate or necessary.
12. Termination. This Agreement may be terminated by Topaz or FINRA at any time upon the approval of the Commission after one (1) year's written notice to the other party (or such shorter time as may be agreed by the parties), except as provided in paragraph 4.
13. Effective Date. This Agreement shall be effective upon approval of the Commission.
14. Arbitration. In the event of a dispute between the parties as to the operation of this Agreement, Topaz and FINRA hereby agree that any such dispute shall be settled by arbitration in Washington, DC in accordance with the rules of the American Arbitration Association then in effect, or such other procedures as the parties may mutually agree upon. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction.
15. Separate Agreement. This Agreement is wholly separate from (1) the multiparty Agreement made pursuant to Rule 17d–2 of the Exchange Act among BATS Exchange, Inc., BOX Options Exchange, LLC, the Chicago Board Options Exchange, Incorporated, C2 Options Exchange, Incorporated, the International Securities Exchange, LLC, Financial Industry Regulatory Authority, Inc., Miami International Securities Exchange, LLC, the New York Stock Exchange, LLC, the NYSE MKT LLC, the NYSE Arca Inc., The NASDAQ Stock Market LLC, NASDAQ OMX BX, Inc., and the NASDAQ OMX PHLX, LLC approved by the Commission on December 5, 2012 involving the allocation of regulatory responsibilities with respect to common members for compliance with common rules relating to the conduct by broker-dealers of accounts for listed options or index warrants or (2) the multiparty Agreement made pursuant to Rule 17d–2 of the Exchange Act among NYSE MKT LLC, BATS Exchange, Inc., BOX Options Exchange, LLC, C2 Options Exchange, Incorporated, Chicago Board Options Exchange, Incorporated, International Securities Exchange LLC, Financial Industry Regulatory Authority, Inc., NYSE Arca, Inc., The NASDAQ Stock Market LLC, NASDAQ OMX BX, Inc., NASDAQ OMX PHLX, Inc. and Miami International Securities Exchange, LLC, approved by the Commission on December 5, 2012 involving options-related market surveillance matters and such agreements as may be amended from time to time.
16. Notification of Members. Topaz and FINRA shall notify Dual Members of this Agreement after the Effective Date by means of a uniform joint notice.
17. Amendment. This Agreement may be amended in writing duly approved by each party. All such amendments must be filed with and approved by the Commission before they become effective.
18. Limitation of Liability. Neither FINRA nor Topaz nor any of their respective directors, governors, officers or employees shall be liable to the other party to this Agreement for any liability, loss or damage resulting from or claimed to have resulted from any delays, inaccuracies, errors or omissions with respect to the provision of Regulatory Responsibilities as provided hereby or for the failure to provide any such responsibility, except with respect to such liability, loss or damages as shall have been suffered by one or the other of FINRA or Topaz and caused by the willful misconduct of the other party or their respective directors, governors, officers or employees. No warranties, express or implied, are made by FINRA or Topaz with respect to any of the responsibilities to be performed by each of them hereunder.
19. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.
20. Relief from Responsibility. Pursuant to Sections 17(d)(1)(A) and 19(g) of the Exchange Act and Rule 17d–2 thereunder, FINRA and Topaz join in requesting the Commission, upon its approval of this Agreement or any part thereof, to relieve Topaz of any and all
Topaz hereby certifies that the requirements contained in the rules listed below for Topaz are identical to, or substantially similar to, the comparable FINRA Rules or SEC Rules identified.
Pursuant to Section 17(d)(1) of the Act
In order to assist the Commission in determining whether to approve the proposed 17d–2 Plan and to relieve Topaz of the responsibilities which would be assigned to FINRA, interested persons are invited to submit written data, views, and arguments concerning the foregoing. 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, Station Place, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 9, 2013, the New York Stock Exchange LLC (“NYSE”) and NYSE MKT LLC (“NYSE MKT”) (collectively, the “Exchanges”) each filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Proposals were published for comment in the
The Proposals seek to amend the Exchanges' rules in several ways. First, the Exchanges propose to codify certain trading floor functions that may be performed by DMMs. Second, the Exchanges propose to allow DMMs to access Exchange systems that would provide DMMs with additional order information about the securities in which they are registered. Third, the Exchanges propose to make certain conforming amendments to their rules to reflect the additional order information that would be available to DMMs through Exchange systems, and to specify what information about Floor broker agency interest files (“e-Quotes”) is available to the DMM. Finally, the Exchanges propose to modify the terms under which DMMs would be permitted to provide market information to Floor brokers and others.
The Exchanges propose to codify certain traditional Trading Floor functions that were formerly performed by specialists that are now performed by DMMs, and which were described in each SRO's respective Floor Official Manual.
Each SRO proposes to make Exchange systems available to a DMM at the post that display the following types of information about securities in which the DMM is registered: (A) Aggregated information about buying and selling interest;
The Exchanges also propose to make conforming amendments to their rules to reflect the additional order information that would be available to DMMs through Exchange systems, and to specify what information about e-Quotes is available to the DMM. Specifically, the Exchanges propose to revise NYSE Rule 70 and NYSE MKT Rule 70 governing e-Quotes to reflect that disaggregated order information would be available to the DMM except as elected otherwise. The Exchanges would allow a Floor broker to enter e-Quotes with reserve interest (“Reserve e-Quote”) with or without a displayable portion.
A Reserve e-Quote with a displayable portion would participate in manual and automatic executions. Order information at each price point, including the reserve portion, would be included in the aggregate interest available to the DMM. Order information at each price point would be available to the DMM on a disaggregated basis as well. If the Floor broker chooses to exclude the Reserve e-Quote with a displayable portion from the DMM, then the DMM would have access to the entire portion on an aggregated basis but would not have access to any of that interest on a disaggregated basis.
A Reserve e-Quote with an undisplayable portion would also participate in manual and automatic executions. Like the Reserve e-Quote with a displayable portion, order information at each price point would be included in the aggregate interest available to the DMM. Again, like the Reserve e-Quote with a displayable portion, order information at each price point would be available to the DMM on a disaggregated basis as well. If the Floor broker chooses to exclude the Reserve e-Quote with an undisplayable portion from the DMM, however, then the DMM would not have access to such interest on either an aggregated basis or a disaggregated basis. Such interest would not participate in manual executions.
In addition, the Exchanges propose to delete rules which currently prohibit DMMs from using the Display Book system to access information about e-Quotes excluded from the aggregated agency interest and Minimum Display Reserve Order information, other than for the purpose of effecting transactions that are reasonably imminent where such Floor broker agency and Minimum Display Reserve Order interest information is necessary to effect such transaction.
The Exchanges note that both Floor brokers and off-Floor participants would have the continued ability to enter partially or completely “dark” orders that are not visible to the DMM, which would prevent any communication about such interest between the DMM and Floor brokers.
The Exchanges also propose to modify the manner under which DMMs would be permitted to provide market information to Floor brokers and visitors on the trading floor, provided that the market participant entering the order had not opted out of such availability. Specifically, the proposed rules would permit a DMM to provide the market information to which he or she has access to a: (1) Floor broker in response to an inquiry in the normal course of business; or (2) visitor to the trading floor for the purpose of demonstrating methods of trading. As such, Floor brokers would be able to access disaggregated order information that market participants have not otherwise elected to be hidden from the DMM. A Floor broker would not be able to submit such an inquiry for market information by electronic means, and the DMM's response containing market information could not be delivered through electronic means.
Because the proposed rule expands on and incorporates the current SRO rules regarding disclosure of order information by DMMs, the Exchanges are proposing to delete these rules.
The proposed rules would permit a DMM to provide market information to a Floor broker in response to a specific request by the Floor broker to the DMM at the post, rather than specifying that the information must be provided “in response to an inquiry from a member conducting a market probe in the normal course of business,” as currently provided in the SRO rules. Under the Proposals, Floor brokers would not have access to Exchange systems that provide disaggregated order information, and Floor brokers would only be able to access such market information through a direct manual interaction with a DMM at the post.
The Commission received two comment letters in response to the Proposals.
The second commenter expressed qualified support for the proposal.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act to determine whether the Proposals should be approved or disapproved. Institution of such proceedings is appropriate at this time in view of the legal and policy issues raised by the Proposals that are discussed below. Institution of these proceedings does not indicate that the Commission has reached any conclusions with respect to any of the issues involved. Rather, as described in greater detail below, the Commission seeks and encourages interested persons to provide additional comment to inform the Commission's analysis of whether to approve or disapprove the Proposals.
Pursuant to Section 19(b)(2)(B), the Commission is providing notice of the grounds for disapproval under consideration. In particular, Section 6(b)(5) of the Act
In the Proposals, the Exchanges, among other things, take the position that “[b]roadening the scope of information that DMMs can provide Floor brokers will assist DMMs with carrying out their historical function of bringing Floor brokers together to facilitate block and other large transactions. . . .”
With respect to the ability of Floor brokers to pass this disaggregated information on to their customers, however, the Exchanges simply state that “the Floor broker's customer potentially could initiate direct contact with the member organization” that entered the order, and thus the re-transmittal of this information “provides a sort of check of the principal on the agent and ensures that the agent adds value.”
The Commission therefore believes that questions are raised as to whether the Proposals are consistent with (1) the requirements of Section 6(b)(5) of the Act, including whether they would not be designed to permit unfair discrimination, or would promote just and equitable principles of trade, or protect investors and the public interest; and (2) the requirements of Section 6(b)(8) of the Act, including whether they would impose an unnecessary or inappropriate burden on competition.
The Commission requests that interested persons provide written submissions of their views, data and arguments with respect to the concerns identified above, as well as any others they may have with the Proposals. In particular, the Commission invites the written views of interested persons concerning whether the Proposals are inconsistent with Section 6(b)(5), Section 6(b)(8) or any other provision of the Act, or the rules and regulation thereunder. Although there do not appear to be any issues relevant to approval or disapproval which would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b–4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views and arguments regarding whether the Proposals should be disapproved by August 22, 2013. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by September 5, 2013. 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.
Notice is hereby given that the Securities and Exchange Commission (“Commission”) has issued an Order, pursuant to Section 17(d) of the Securities Exchange Act of 1934 (“Act”),
Section 19(g)(1) of the Act,
Section 17(d)(1) of the Act
To implement Section 17(d)(1), the Commission adopted two rules: Rule 17d–1 and Rule 17d–2 under the Act.
To address regulatory duplication in these and other areas, the Commission adopted Rule 17d–2 under the Act.
On December 11, 2007, the Commission declared effective the Participating Organizations' Plan for allocating regulatory responsibilities pursuant to Rule 17d–2.
The Plan is designed to reduce regulatory duplication for common members by allocating regulatory responsibility for certain options-related market surveillance matters among the Participating Organizations. Generally, under the Plan, a Participating Organization will serve as the Designated Options Surveillance Regulator (“DOSR”) for each common member assigned to it and will assume regulatory responsibility with respect to that common member's compliance with applicable common rules for certain accounts. When an SRO has been named as a common member's DOSR, all other SROs to which the common member belongs will be relieved of regulatory responsibility for that common member, pursuant to the terms of the Plan, with respect to the applicable common rules specified in Exhibit A to the Plan.
On July 2, 2013, the parties submitted a proposed amendment to the Plan. The primary purpose of the amendment is to add Topaz as a Participant to the Plan. The text of the proposed amended 17d–2 plan is as follows (additions are
This agreement (this “Agreement”), by and among the NYSE MKT LLC (“MKT”), BATS Exchange, Inc., (“BATS”), the C2 Options Exchange, Incorporated (“C2”), the Chicago Board Options Exchange, Incorporated (“CBOE”), the International Securities Exchange LLC (“ISE”), Financial Industry Regulatory Authority, Inc. (“FINRA”), NYSE Arca, Inc. (“Arca”), The NASDAQ Stock Market LLC (“Nasdaq”), the BOX Options Exchange LLC (“BOX”), NASDAQ OMX BX, Inc. (“BX”) the NASDAQ OMX PHLX, Inc. (“PHLX”), [and] the Miami International Securities Exchange, LLC (“MIAX”)
I. Except as otherwise provided in this Agreement, each Participant shall assume Regulatory Responsibility (as defined below) for the Common Members that are allocated or assigned to such Participant in accordance with the terms of this Agreement and shall be relieved of its Regulatory Responsibility as to the remaining Common Members. For purposes of this Agreement, a Participant shall be considered to be the Designated Options Surveillance Regulator (“DOSR”) for each Common Member that is allocated to it in accordance with Section VII.
II. As used in this Agreement, the term “Regulatory Responsibility” shall mean surveillance, investigation and enforcement responsibilities relating to compliance by the Common Members with such Options rules of the Participants as the Participants shall determine are substantially similar and shall approve from time to time, insofar as such rules relate to market surveillance (collectively, the “Common Rules”). For the purposes of this Agreement the list of Common Rules is attached as Exhibit A hereto, which may only be amended upon unanimous written agreement by the Participants. The DOSR assigned to each Common Member shall assume Regulatory Responsibility with regard to that Common Member's compliance with the applicable Common Rules for certain accounts.
The term “Regulatory Responsibility” does not include, and each Participant shall retain full responsibility with respect to:
(a) Surveillance, investigative and enforcement responsibilities other than those included in the definition of Regulatory Responsibility;
(b) any aspects of the rules of a Participant that are not substantially similar to the Common Rules or that are allocated for a separate surveillance purpose under any other agreement made pursuant to Rule 17d–2. Any such aspects of a Common Rule will be noted as excluded on Exhibit A.
With respect to options position limits, the term Regulatory Responsibility shall include examination responsibilities for the delta hedging exemption. Specifically, the Participants intend that FINRA will conduct examinations for delta hedging for all Common Members that are members of FINRA notwithstanding the fact that FINRA's position limit rule is, in some cases, limited to only firms that
III. Each year within 30 days of the anniversary date of the commencement of operation of this Agreement, or more frequently if required by changes in the rules of a Participant, each Participant shall submit to the other Participants, through the Chair of the OSG, an updated list of Common Rules for review. This updated list may add Common Rules to Exhibit A, shall delete from Exhibit A rules of that Participant that are no longer identical or substantially similar to the Common Rules, and shall confirm that the remaining rules of the Participant included on Exhibit A continue to be identically or substantially similar to the Common Rules. Within 30 days from the date that each Participant has received revisions to Exhibit A from the Chair of the OSG, each Participant shall confirm in writing to the Chair of the OSG whether that Participant's rules listed in Exhibit A are Common Rules.
IV. Apparent violation of another Participant's rules discovered by a DOSR, but which rules are not within the scope of the discovering DOSR's Regulatory Responsibility, shall be referred to the relevant Participant for such action as is deemed appropriate by that Participant.
Notwithstanding the foregoing, nothing contained herein shall preclude a DOSR in its discretion from requesting that another Participant conduct an investigative or enforcement proceeding (“Proceeding”) on a matter for which the requesting DOSR has Regulatory Responsibility. If such other Participant agrees, the Regulatory Responsibility in such case shall be deemed transferred to the accepting Participant and confirmed in writing by the Participants involved. Additionally, nothing in this Agreement shall prevent another Participant on whose market potential violative activity took place from conducting its own Proceeding on a matter. The Participant conducting the Proceeding shall advise the assigned DOSR. Each Participant agrees, upon request, to make available promptly all relevant files, records and/or witnesses necessary to assist another Participant in a Proceeding.
V. The OSG shall be composed of one representative designated by each of the Participants (a “Representative”). Each Participant shall also designate one or more persons as its alternate representative(s) (an “Alternate Representative”). In the absence of the Representative, the Alternate Representative shall assume the powers, duties and responsibilities of the Representative. Each Participant may at any time replace its Representative and/or its Alternate Representative to the Group.
The Group will have a Chair, Vice Chair and Secretary. A different Participant will assume each position on a rotating basis for a one-year term. In the event that a Participant replaces a Representative who is acting as Chair, Vice Chair or Secretary, the newly appointed Representative shall assume the position of Chair, Vice Chair, or Secretary (as applicable) vacated by the Participant's former Representative. In the event a Participant cannot fulfill its duties as Chair, the Participant serving as Vice Chair shall substitute for the Chair and complete the subject unfulfilled term. All notices and other communications for the OSG are to be sent in care of the Chair and, as appropriate, to each Representative.
VI. The OSG shall determine the times and locations of Group meetings, provided that the Chair, acting alone, may also call a meeting of the Group in the event the Chair determines that there is good cause to do so. To the extent reasonably possible, notice of any meeting shall be given at least ten business days prior to the meeting date. Representatives shall always be given the option of participating in any meeting telephonically at their own expense rather than in person.
VII. No less frequently than every two years, in such manner as the Group deems appropriate, the OSG shall allocate Common Members that conduct an Options business among the Participants (“Allocation”), and the Participant to which a Common Member is allocated will serve as the DOSR for that Common Member. Any Allocation shall be based on the following principles, except to the extent all affected Participants consent to one or more different principles:
(a) The OSG may not allocate a Common Member to a Participant unless the Common Member is a member of that Participant.
(b) To the extent practicable, Common Members that conduct an Options business shall be allocated among the Participants of which they are members in such manner as to equalize as nearly as possible the allocation among such Participants, provided that no Common Members shall be allocated to FINRA. For example, if sixteen Common Members that conduct an Options business are members only of three Participants, none of which is FINRA, those Common Members shall be allocated among the three Participants such that no Participant is allocated more than six such members and no Participant is allocated less than five such members. If, in the previous example, one of the three Participants is FINRA, the sixteen Common Members would be allocated evenly between the remaining Participants, so that the two non-FINRA Participants would be allocated eight Common Members each.
(c) To the extent practicable, Allocation shall take into account the amount of Options activity conducted by each Common Member in order to most evenly divide the Common Members with the largest amount of activity among the Participants of which they are members. Allocation will also take into account similar allocations pursuant to other plans or agreements to which the Common Members are party to maintain consistency in oversight of the Common Members.
(d) To the extent practicable, Allocation of Common Members to Participants will be rotated among the applicable Participants such that a Common Member shall not be allocated to a Participant to which that Common Member was allocated within the previous two years. The assignment of DOSRs pursuant to the Allocation is attached as Exhibit B hereto, and will be updated from time to time to reflect Common Member Allocation changes.
(e) The Group may reallocate Common Members from time-to-time, as it deems appropriate.
(f) Whenever a Common Member ceases to be a member of its DOSR, the
(g) A DOSR may request that a Common Member to which it is assigned be reallocated to another Participant by giving 30 days written notice to the Chair of the OSG. The Group, in its discretion, may approve such request and reallocate the Common Member to another Participant.
(h) All determinations by the Group with respect to Allocation shall be made by the affirmative vote of a majority of the Participants that, at the time of such determination, share the applicable Common Member being allocated; a Participant shall not be entitled to vote on any Allocation relating to a Common Member unless the Common Member is a member of such Participant.
VIII. Each DOSR shall conduct routine surveillance reviews to detect violations of the applicable Common Rules by each Common Member allocated to it with a frequency (daily, weekly, monthly, quarterly, semi-annually or annually as noted on Exhibit A) not less than that determined by the Group. The other Participants agree that, upon request, relevant information in their respective files relative to a Common Member will be made available to the applicable DOSR. In addition, each Participant shall provide, to the extent not otherwise already provided, information pertaining to its surveillance program that would be relevant to FINRA or the Participant(s) conducting routine examinations for the delta hedging exemption.
At each meeting of the OSG, each Participant shall be prepared to report on the status of its surveillance program for the previous quarter and any period prior thereto that has not previously been reported to the Group. In the event a DOSR believes it will not be able to complete its Regulatory Responsibility for its allocated Common Members, it will so advise the Group in writing promptly. The Group will undertake to remedy this situation by reallocating the subject Common Members among the remaining Participants. In such instance, the Group may determine to impose a regulatory fee for services provided to the DOSR that was unable to fulfill its Regulatory Responsibility.
IX. Each Participant will, upon request, promptly furnish a copy of the report or applicable portions thereof relating to any investigation made pursuant to the provisions of this Agreement to each other Participant of which the Common Member under investigation is a member.
X. Each Participant will routinely populate a common database, to be accessed by the Group relating to any formal regulatory action taken during the course of a Proceeding with respect to the Common Rules concerning a Common Member.
XI. Any written notice required or permitted to be given under this Agreement shall be deemed given if sent by certified mail, return receipt requested, to any Participant to the attention of that Participant's Representative, to the Participant's principal place of business or by email at such address as the Representative shall have filed in writing with the Chair.
XII. The costs incurred by each Participant in discharging its Regulatory Responsibility under this Agreement are not reimbursable. However, any of the Participants may agree that one or more will compensate the other(s) for costs incurred.
XIII. The Participants shall notify the Common Members of this Agreement by means of a uniform joint notice approved by the Group. Each Participant will notify the Common Members that have been allocated to it that such Participant will serve as DOSR for that Common Member.
XIV. This Agreement shall be effective upon approval of the Commission. This Agreement may only be amended in writing duly approved by each Participant. All amendments to this Agreement, excluding changes to Exhibits A, B and C, must be filed with and approved by the Commission.
XV. Any Participant may manifest its intention to cancel its participation in this Agreement at any time upon providing written notice to (i) the Group six months prior to the date of such cancellation, or such other period as all the Participants may agree, and (ii) the Commission. Upon receipt of the notice the Group shall allocate, in accordance with the provisions of this Agreement, those Common Members for which the canceling Participant was the DOSR. The canceling Participant shall retain its Regulatory Responsibility and other rights, privileges and duties pursuant to this Agreement until the Group has completed the reallocation as described above, and the Commission has approved the cancellation.
XVI. The cancellation of its participation in this Agreement by any Participant shall not terminate this Agreement as to the remaining Participants. This Agreement will only terminate following notice to the Commission, in writing, by the then Participants that they intend to terminate the Agreement and the expiration of the applicable notice period. Such notice shall be given at least six months prior to the intended date of termination, or such other period as all the Participants may agree. Such termination will become effective upon Commission approval.
XVII. Participation in the Group shall be strictly limited to the Participants and no other party shall have any right to attend or otherwise participate in the Group except with the unanimous approval of all Participants. Notwithstanding the foregoing, any national securities exchange registered with the SEC under Section 6(a) of the Act or any national securities association registered with the SEC under section 15A of the Act may become a Participant to this Agreement provided that: (i) Such applicant has adopted rules substantially similar to the Common Rules, and received approval thereof from the SEC; (ii) such applicant has provided each Participant with a signed statement whereby the applicant agrees to be bound by the terms of this Agreement to the same effect as though it had originally signed this Agreement and (iii) an amended agreement reflecting the addition of such applicant as a Participant has been filed with and approved by the Commission.
XVIII. This Agreement is wholly separate from the multiparty Agreement made pursuant to Rule 17d–2 by and among the NYSE MKT LLC, the Boston Stock Exchange, Inc., the Chicago Board Options Exchange, Inc., the International Securities Exchange, LLC, Financial Industry Regulatory Authority, The NASDAQ Stock Market LLC, Inc., the New York Stock Exchange, LLC, the NYSE Arca, Inc., the Philadelphia Stock Exchange, Inc., Miami International Securities Exchange, LLC
No Participant nor the Group nor any of their respective directors, governors, officers, employees or representatives shall be liable to any other Participant in this Agreement for any liability, loss or damage resulting from or claimed to have resulted from any delays, inaccuracies, errors or omissions with respect to the provision of Regulatory Responsibility as provided hereby or for
Pursuant to Section 17(d)(1)(A) of the Exchange Act and Rule 17d–2, the Participants join in requesting the Commission, upon its approval of this Agreement or any part thereof, to relieve the Participants that are party to this Agreement and are not the DOSR as to a Common Member of any and all Regulatory Responsibility with respect to the matters allocated to the DOSR.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
In Witness Whereof, the Participants hereto have executed this Agreement as of the date and year first above written.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing. 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.
The Commission continues to believe that the Plan, as proposed to be amended, is an achievement in cooperation among the SRO participants. The Plan, as amended, will reduce unnecessary regulatory duplication by allocating to the designated SRO the responsibility for certain options-related market surveillance matters that would otherwise be performed by multiple SROs. The Plan promotes efficiency by reducing costs to firms that are members of more than one of the SRO participants. In addition, because the SRO participants coordinate their regulatory functions in accordance with the Plan, the Plan promotes, and will continue to promote, investor protection. Under paragraph (c) of Rule 17d–2, the Commission may, after appropriate notice and comment, declare a plan, or any part of a plan, effective. In this instance, the Commission believes that appropriate notice and comment can take place after the proposed amendment is effective. The primary purpose of the amendment is to add Topaz as a Participant to the Plan. By declaring it effective today, the amended Plan can become effective and be implemented without undue delay.
This order gives effect to the amended Plan submitted to the Commission that is contained in File No. 4–551.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Based upon a review of the Administrative Record assembled pursuant to Section 219(a)(4)(C) of the Immigration and Nationality Act, as amended (8 U.S.C. 1189(a)(4)(C)) (“INA”), and in consultation with the Attorney General and the Secretary of the Treasury, I conclude that the circumstances that were the basis for the 2008 decision to maintain the designation of the aforementioned organization as a Foreign Terrorist Organization have not changed in such a manner as to warrant revocation of the designation and that the national security of the United States does not warrant a revocation of the designation.
Therefore, I hereby determine that the designation of the aforementioned organization as a Foreign Terrorist Organization, pursuant to Section 219 of the INA (8 U.S.C. 1189), shall be maintained.
This determination shall be published in the
By virtue of the authority vested in me as Secretary of State, including Section 1 of the State Department Basic Authorities Act, as amended (22 U.S.C. § 2651a), and Executive Order 13648 of July 1, 2013 (the Executive Order), I hereby designate the Under Secretary for Economic Growth, Energy, and the Environment (the Under Secretary) as the Department of State representative to the Presidential Task Force on Wildlife Trafficking, established by Section 2 of the Executive Order; together with the authorities necessary to carry out such function.
In the event that the position of the Under Secretary is vacant, I hereby designate the Under Secretary for Civilian Security, Democracy and Human Rights, and in the Under Secretaries' collective absence, the Assistant Secretary for Oceans and International Environmental and Scientific Affairs to be the Department of State representative for purposes of the Executive Order.
Any act, executive order, regulation, or procedure subject to, or affected by, this delegation shall be deemed to be such act, executive order, regulation, or procedure as amended from time to time.
Notwithstanding this delegation of authority, the Secretary, the Deputy Secretary, and the Deputy Secretary for Management and Resources may at any time exercise any authority or function delegated by this delegation of authority.
This delegation of authority shall be published in the
Pursuant to Section 7031(b)(3) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2012 (Div. I, Pub. L. 112–74) (“the Act”), as carried forward by the Further Continuing Appropriations Act, 2013 (Div. F, Pub. L. 113–6), and Department of State Delegation of Authority Number 245–1, I hereby determine that it is important to the national interest of the United States to waive the requirements of Section 7031(b)(1) of the Act and similar provisions of law in prior year Acts with respect to Haiti and I hereby waive this restriction.
This determination and the accompanying Memorandum of
Pursuant to Section 7031(b)(3) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2012 (Div. I, Pub. L. 112–74) (“the Act”), as carried forward by the Further Continuing Appropriations Act, 2013 (Div. F, Pub. L. 113–6), and Department of State Delegation of Authority Number 245–1, I hereby determine that it is important to the national interest of the United States to waive the requirements of Section 7031(b)(1) of the Act and similar provisions of law in prior year Acts with respect to Ukraine and I hereby waive this restriction.
This determination and the accompanying Memorandum of Justification shall be reported to the Congress, and the determination shall be published in the
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14, Code of Federal Regulations (14 CFR). The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of the FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before August 21, 2013.
You may send comments identified by docket number FAA–2013–0578 using any of the following methods:
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Mark Forseth, ANM–113, (425) 227–2796, Federal Aviation Administration, 1601 Lind Avenue SW., Renton, WA 98057–3356, or Andrea Copeland, ARM–208, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW.; Washington, DC 20591; email
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14, Code of Federal Regulations (14 CFR). The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of the FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before August 21, 2013.
You may send comments identified by docket number FAA–2013–0534 using any of the following methods:
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Mark Forseth, ANM–113, (425) 227–2796, Federal Aviation Administration, 1601 Lind Avenue SW., Renton, WA 98057–3356, or Andrea Copeland, ARM–208, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; email
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14, Code of Federal Regulations (14 CFR). The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of the FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before August 21, 2013.
You may send comments identified by docket number FAA–2011–1240 using any of the following methods:
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Andrea Copeland, (202) 267–8081, Office of Rulemaking (ARM–208), Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under
Please submit comments by September 30, 2013.
You may submit comments identified by DOT Docket ID 2013–0045 by any of the following methods:
Jennifer Warren, 202–366–2157,
Beginning in Fiscal Year 1996, States' failure to comply by October 1 of each fiscal year resulted in a withholding penalty of 10 percent from major categories of Federal-aid funds (i.e., National Highway System, Surface Transportation Program and the Interstate Maintenance Program) from States' apportionments for the fiscal year. Any funds withheld in Fiscal Year 1996 and thereafter cannot be restored and will be redistributed.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under
Please submit comments by September 30, 2013.
You may submit comments identified by DOT Docket ID 2013–0046 by any of the following methods:
Henry Murdaugh, 703–235–0535, Office of Professional and Corporate Development, Federal Highway Administration, Department of Transportation, 4600 N. Fairfax Drive, Suite 800, Arlington, VA 22203, between 8:00 a.m. to 4:30 p.m., Monday through Friday, except Federal holidays.
The NHI calls for the development and delivery of courses for the transportation community and requires the involvement and satisfaction measurement of transportation partners. One vital component involved in reaching those goals is providing training pertaining to highway activities, making sure that professionals and members of the public
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under Supplementary Information. We are required to publish this notice in the
Please submit comments by September 30, 2013.
You may submit comments identified by DOT Docket ID 2013–0047 by any of the following methods:
Mary Jane Daluge, 202–366–2035,
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Revised Notice of Intent (NOI).
The FHWA, on behalf of the California Department of Transportation (Caltrans), is issuing this Revised Notice of Intent to inform the public of changes to the proposed High Desert Corridor project in Los Angeles and San Bernardino Counties, California. The Federal Railroad Administration has also been added as a Cooperating Agency.
Public scoping meetings were previously conducted as follows:
(1) Palmdale, CA on September 27, 2010, 6 p.m. to 8 p.m.
(2) Lancaster, CA on September 28, 2010, 6 p.m. to 8 p.m.
(3) Apple Valley, CA on September 29, 2010, 6 p.m. to 8 p.m.
(4) Victorville, CA on September 30, 2010, 6 p.m. to 8 p.m.
Meetings have also been held at various locations along the proposed corridor during April 2011 and January, February and December 2012 to keep the public, agencies, and elected officials appraised of the status of the project, including the modification of two project alternatives to include high speed rail. Additional meetings will be held in July of 2013.
Ronald Kosinski, Deputy District Director, California Department of Transportation District 7 Division of Environmental Planning, 100 South Main Street, Mail Stop 16A, Los Angeles, CA 90012.
Effective July 1, 2007, the FHWA assigned, and Caltrans assumed, environmental responsibilities for these projects pursuant to 23 U.S.C. 327. Caltrans, as the delegated National Environmental Policy Act (NEPA) lead agency, initiated studies on the High Desert Corridor project. The NOI was published in the
A draft Environmental Impact Statement will be prepared for a proposal to construct the High Desert Corridor, a new freeway/expressway, and possible toll way, extending approximately 63 miles between SR–14 in Los Angeles County and SR–18 in San Bernardino County. On March 22, 2012, the Los Angeles County Metropolitan Transportation Authority (Metro) Board of Directors took action to recognize this project as a Strategic Multipurpose Corridor, which provides mobility, as well as economic and environmental benefits. To satisfy this directive, the proposed corridor is being evaluated for potential inclusion of the highway (freeway/expressway), a toll way, a bike path, energy production and/or transmission facilities, and a high speed rail feeder service line. The proposed route would run primarily in an east-west direction and would roughly follow the alignment of the Avenue P–8 corridor near SR–14 in Los Angeles County and Air Expressway near I–15 in San Bernardino County. East of I–15, the proposed route would curve south until it terminates at SR–18.
The development of this corridor is considered necessary to provide for the existing and projected traffic demand attributed to large-scale growth and increasing population in the Antelope, Victor and Apple Valley areas of Los Angeles and San Bernardino Counties. This growth has resulted in inadequate capacity and accessibility along the existing east-west trending roadways as well as an increase in demand for goods movement corridors and access to regional airports. Alternatives under consideration are: (1)—No-Build; (2)—Transportation System Management/Transportation Demand Management (TSM/TDM). This includes several key elements under consideration: An eight-lane grade-separated freeway from SR–14 to 30th Street East; a transition to a four-lane at-grade expressway from 30th Street East to Longview Road; a four-lane at-grade highway connecting to SR–138 and extending east to US–395 along SR–18; a six-lane arterial highway along SR–18 (Palmdale Road) from US–395 to I–15; and minor roadway and signal improvements along SR–18 from I–15 to Bear Valley Road. These TSM/TDM roadway improvements would maintain at-grade intersections with local roads and driveway access; (3)—Freeway/Expressway (Avenue P–8, I–15 and SR–18). This would consist of a route with a controlled-access freeway in some areas and an expressway in others, depending on what is warranted by traffic demand. Interchange locations will be determined based upon traffic projections. This alternative generally follows Avenue P–8 in Los Angeles County and runs just south of El Mirage Road in San Bernardino County and then extends to Air Expressway Road near I–15 and curves south terminating at Bear Valley Road. The incorporation of green energy technologies and a bike path along the alternative will also be considered. Four variations along the main alignment of this alternative will be considered. In Variation A, the freeway/expressway would run slightly south of the main alignment, approximately between 15th Street East and Little Rock Wash near Palmdale. In Variation B, the freeway/expressway would run slightly south of the main alignment between Oasis Road and Caughlin Road east of the county line. In Variation D, the freeway/expressway would swing south of the main alignment just south of Avenue R approximately between 180th Street East and 230th Street East near the community of Lake Los Angeles. In Variation E, the freeway/expressway would swing south of the federal prison near the cities of Adelanto and Victorville; (4)—Freeway/Toll Way (Avenue P–8, I–15 and SR–18). This would consist of engineering geometrics similar to Alternative 3 with alterations made in coordination with a Public Private Partnership (P3) analysis. Variations A, B, D and E would also be considered; (5)—Freeway/Expressway with High Speed Rail Feeder Service. This Alternative is the same as the Alternative 3 (including Variations A, D, B and E) and includes a High Speed Rail (HSR) Feeder Service between Palmdale and Victorville. The HSR Feeder Service would utilize proven steel wheel on steel track technology and have a maximum operating speed of 180 miles per hour. Additional details of this operating feature, including the type of train technology (electric vs. diesel-electric), its location in relation to the HDC and its connections to existing and proposed rail stations are being evaluated as part of the ongoing Public-Private Partnership analysis and Alternatives Analysis. The incorporation of green energy technologies and a bike path will also be considered; (6)—Freeway/Tollway with High Speed Rail Feeder Service. This would consist of engineering geometrics similar to Alternative 4 with the consideration of additional right-of-way for a High Speed Rail (HSR) facility. The HSR Feeder Service would utilize proven steel wheel on steel track technology and have a maximum operating speed of 180 miles per hour. Additional details of this operating feature, including the type of train technology (electric vs. diesel-electric), its location in relation to the HDC and its connections to existing and proposed rail stations are being evaluated as part of the ongoing P3 analysis and Alternatives Analysis. The
Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State and local agencies, Participating Agencies, Tribal governments, and to private organizations and citizens who have previously expressed or are known to have an interest in this proposal. To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the draft EIS should be directed to Caltrans at the address provided above.
Federal Highway Administration (FHWA), DOT.
Notice of intent.
The Federal Highway Administration is issuing this notice to advise the public that an Environmental Impact Statement (EIS) will be prepared for a proposed transportation project in Calcasieu Parish, Louisiana.
FHWA Carl Highsmith, Project Delivery Team Leader, FHWA, 5304 Flanders Drive, Suite A, Baton Rouge, Louisiana 70808. Project information can be found at the project Web site
The FHWA, in cooperation with the DOTD, will prepare an EIS on alternatives for additional capacity along I–10 in the Lake Charles region between the I–210 interchanges including the Calcasieu River Bridge. A feasibility and environmental study was previously conducted in accordance with the National Environmental Policy Act (NEPA) for this project. The feasibility study involved four phases: (1) Information and Data Gathering; (2) Preliminary Study; (3) Refined Alternatives; and (4) Preparation and Submission of a Final Report. Based on the preliminary studies which included input from the local community, four feasible alternatives have been recommended for further study. A no-build alternative will also be evaluated in accordance with NEPA. The preliminary studies were completed in spring 2004; however the proposed project was placed on hold to evaluate the bridge height and due to the discovery of hazardous materials contamination within the proposed right-of-way. Because of the potential for impacts and issues associated with various socioeconomic and environmental resources and the high-level of public interest, FHWA will prepare an EIS. The total project length is approximately 9 miles. In addition to bridge alternatives, improvements to be investigated within the study limits include: A redesign of Sampson Street from Sulphur Avenue to I–10 to provide grade separations with existing railroads; a redesign of the access to and from I–10 on the west side of the bridge between Sampson Street and PPG Drive; a redesign of the access to and from I–10 near the east end of the bridge; and consideration of the implementation of one-way frontage roads from PPG Drive to US 90 East. Consideration will be given to using the existing bridge for the frontage roads. Proposed changes to the existing bridge to be investigated include: (a) Designing the proposed bridge structure to accommodate three travel lanes and one auxiliary lane, with inside and outside shoulders and two frontage roads in each direction, (b) a reduction in navigational clearance, (c) reducing the existing 420 foot truss span to two main spans, and (d) determining if the existing vertical clearance for marine traffic can be reduced. Letters describing the proposed project and soliciting comments will be sent to appropriate Federal, State, and local agencies, and to private organizations and the public who have previously expressed or are known to have interest in this project. Numerous public meetings will be held throughout the term of the project. The first of these meetings, a series of public scoping meetings, will be conducted to provide the public information about the project and an opportunity to assist in formulating and revising the scope of the study. The public scoping meetings will be scheduled in the future and will be posted to the project Web site
In addition, a public hearing will be held. Public notice will be given of the time and place of the meetings and hearing.
To ensure that the full range of issues related to this proposed project are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA at the address provided above.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval, and invites public comment. This ICR will enable FMCSA to document the burden associated with the marking regulations codified in 49 CFR 390.21, “Marking of Self-Propelled CMVs and Intermodal Equipment.” These regulations require marking of vehicles and intermodal equipment by motor carriers, freight forwarders and intermodal equipment providers (IEPs) engaging in interstate transportation. On April 11, 2013, FMCSA published a
Please send your comments by September 3, 2013. OMB must receive your comments by this date in order to act on the ICR.
All comments should reference Federal Docket Management System (FDMS) Docket Number FMCSA–2013–0051. Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/Federal Motor Carrier Safety Administration, and sent via electronic mail to
Kenneth Rodgers, Chief, Commercial Enforcement and Investigations Division, Office of Enforcement and Compliance, U.S. Department of Transportation, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC, 20590–0001. Telephone: 202–366–0073; Email:
Vehicle marking requirements are intended to ensure that FMCSA, the National Transportation Safety Board (NTSB), and State safety officials are able to identify motor carriers and correctly assign responsibility for regulatory violations during inspections, investigations, compliance reviews, and crash studies. These marking requirements will also provide the public with beneficial information that could also assist in identifying carriers for the purposes of commerce, complaints or emergency notification. The marking requirements apply to motor carriers, freight forwarders and IEPs engaging in interstate transportation. The Agency does not require a specific method of marking as long as the marking complies with FMCSA's regulations.
In accordance with Part 235 of Title 49 Code of Federal Regulations and 49 U.S.C. 20502(a), this document provides the public notice that by a document dated June 28, 2013, Norfolk Southern Corporation (NS) petitioned the Federal Railroad Administration (FRA) seeking approval for the discontinuance or modification of a signal system. FRA assigned the petition Docket Number FRA–2013–0074.
NS seeks approval of the proposed discontinuance of Control Point (CP) CSXT Connection, at Milepost (MP) H 194.9 on the NS Roanoke District, Virginia Division, between Shenandoah and Roanoke, VA. CP CSXT Connection will be discontinued, and all associated signal equipment and Crossover #83 will be removed. Signals 82L, 82RA, 82RC, 84L, and 84R will be removed. Power-operated switch #81 will be converted to a hand-operated switch equipped with an electric lock.
The reason given for the proposed changes is that CP CSXT Connection is seldom used and no longer needed for railroad operations.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by September 16, 2013 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See
In accordance with Part 235 of Title 49 Code of Federal Regulations (CFR) and 49 U.S.C. 20502(a), this document provides the public notice that by a document dated June 27, 2013, the Norfolk Southern Corporation (NS) petitioned the Federal Railroad Administration (FRA) seeking approval for the discontinuance or modification of a signal system. FRA assigned the petition Docket Number FRA–2013–0073.
NS seeks approval of the proposed discontinuance of automatic signals within traffic control signal territory and the installation of a cab signal system without wayside signals, on Main Track Number 3 of the NS Pittsburgh Line from Milepost (MP) 273.2, SG, to MP 277.30 and from MP 277.30 to MP 290.6, CP-Conpit Junction. This section of track is also referred to as the “Sang Hollow Extension.” All automatic signals on this line will be retired. The discontinuance will include the following automatic signals: SG 280.1, SG 282.95, and SG 287.1.
The reasons given for the proposed changes are that the installation of cab signals without wayside signals will improve train operations and will facilitate the installation of Positive Train Control on the Pittsburgh Line.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by September 16, 2013 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See
In accordance with Part 211 of Title 49 of the Code of Federal Regulations (CFR), this document provides the public notice that by documents dated May 28, 2013, and June 12, 2013, Steam Into History (Steam) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR Part 215–Railroad Freight Car Safety Standards. FRA assigned the petition Docket Number FRA–2013–0057.
Specifically, Steam seeks relief from 49 CFR 215.303–
The petition concerns three leased and two owned freight cars, numbered RERX 101, 213, and 702 and NCR 150 and 840, which are railroad flat cars converted to passenger carriage cars for tourist and excursion railroad service by the addition of seating, superstructures, and steps. Each of the Steam freight cars in the present petition is more than 50 years old, measured from the date of original construction, and the freight cars are the subject of a parallel petition for special approval for continued operation under 215.203(c). Therefore, Steam seeks a waiver of the requirement for stenciling found in 215.303, as the
A copy of the petition, as well as any written communications concerning the petition, is available for review online at www.regulations.gov and in person at the Department of Transportation's Docket Operations Facility, 1200 New Jersey Avenue SE., W12–140, Washington, DC 20590. The Docket Operations Facility is open from 9 a.m. to 5 p.m., Monday through Friday, except Federal Holidays.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
• Web site:
• Fax: 202–493–2251.
• Mail: Docket Operations Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., W12–140, Washington, DC 20590.
• Hand Delivery: 1200 New Jersey Avenue SE., Room W12–140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
Communications received by September 16, 2013 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated June 6, 2013, the Association of American Railroads (AAR), on behalf of itself and its member railroads, has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR Part 232, Brake System Safety Standards for Freight and Other Non-Passenger Trains and Equipment; End-of-Train Devices. FRA assigned the petition Docket Number FRA–2013–0063.
Specifically, AAR seeks a waiver of compliance from Part 232, Appendix B, Part 232 Prior to May 31, 2001 as Clarified Effective April 10, 2002, 232.17(b)(2). This section states that brake equipment on passenger cars must be cleaned, repaired, lubricated, and tested as often as necessary to maintain it in a safe and suitable condition for service but not less frequently than as required in Standard S–045 in the Manual of Standards and Recommended Practices (MSRP) of the AAR. AAR petitioned FRA for a 5-year waiver so that AAR Standard S–4045 may be used in lieu of the obsolete Standard S–045 for the frequency requirements referenced in 49 CFR Part 232, Appendix B.
AAR's Braking Systems Committee recently revised S–4045's Section E, Passenger Equipment Maintenance Requirements of the AAR MSRP. The revisions include a revised definition for a passenger equipment car as “[R]ail rolling equipment that is used only for excursions, recreational, or private transportation purposes (such as a vehicle designed to carry railroad personnel). It does not apply to a passenger car intended for use by members of the general public as defined in US DOT–FRA Title 49, Code of Federal Regulations, Part 238.” This definition serves to address private passenger cars, particularly those operated by freight railroads that may be handled in either freight or passenger trains. Additionally, the revised standard aligns the requirements for air brake periodic attention with 49 CFR 238.309,
A copy of the petition, as well as any written communications concerning the petition, is available for review online at www.regulations.gov and in person at the U.S. Department of Transportation's Docket Operations Facility, 1200 New Jersey Avenue SE., W12–140, Washington, DC 20590. The Docket Operations Facility is open from 9 a.m. to 5 p.m., Monday through Friday, except Federal Holidays.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
• Web site:
• Fax: 202–493–2251.
• Mail: Docket Operations Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., W12–140, Washington, DC 20590.
• Hand Delivery: 1200 New Jersey Avenue SE., Room W12–140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
Communications received by September 16, 2013 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated June 18, 2013, the National Railroad Passenger Corporation (Amtrak) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR Part 214, Subpart C, Roadway Worker Protection. FRA assigned the petition Docket Number FRA–2013–0068.
In its petition, Amtrak requests a temporary waiver from 49 CFR Part 214, Subpart C, seeking relief from the requirement to provide Roadway Worker Protection (RWP) for contractors and contractor employees (herein referred to as “workers”) using hand tools within the 4-foot fouling envelope of a track in publicly accessible areas, specifically passenger station platforms. The waiver is sought for the express purposes of performing manual snow removal with hand tools, which extend into the tactile warning area of a passenger platform (if equipped with a tactile warning strip), or other warning area beyond and including a similarly positioned and contrasting painted line (if not equipped), while the worker's person is behind the area and in a position of safety. The tactile warning area is the area beyond and including a 24-inch-wide strip of truncated domes that is installed along the full length of the public-use areas of a passenger platform (pursuant to the Americans with Disabilities Act (ADA) standards) and that is generally positioned approximately 24 inches from the outside of the nearest rail. The request for relief from the regulation is limited to platforms outside of the Northeast Corridor at stations for which Amtrak is not the operating railroad.
Title 49 CFR 214.7 defines fouling a track as “the placement of an individual or an item of equipment in such proximity to a track that the individual or equipment could be struck by a moving train or on-track equipment, or in any case is within four feet of the field side of the near running rail.” In the case of a platform, 4 feet from the field side of the rail generally encompasses the space between the outside of the nearest rail and the platform, plus the width of a 24-inch-wide, ADA-required, tactile strip.
Currently, workers performing passenger station snow-removal activities, which breach the tactile (or painted) warning area with hand tools, must be provided with on-track safety in accordance with the RWP rule, while pedestrians and the riding public may move throughout the system in the very same areas without restriction.
Contractor workers performing snow removal on passenger service infrastructure not owned by Amtrak are not qualified to provide on-track safety. Thus, workers may remove snow from platform areas behind the tactile (or paint-delineated) warning area, but must not remove snow in the area of the tactile (or paint-delineated) warning area without first establishing on-track safety in accordance with the RWP rule. As a result of this requirement, hazardous conditions on platforms remain unaddressed. Amtrak believes that the proposed alternate snow removal protection program (alternate program), used for specific snow-removal activities, will permit workers to address unsafe platform conditions from a safe location in a safe and timely manner, without workers being struck by a train, while occupying the area of the platform behind the tactile warning strip or contrasting painted line.
Slippery or snow-covered platform surfaces pose a significant risk to passengers, especially if such conditions exist close to the platform's edge. This potential risk continues if the surfaces remain slippery or snow-covered. In contrast, the potential risk to workers is intermittent depending on the presence of a train. Considering the differing levels of potential risk from both time-based and quantity-based perspectives, risk to passengers is significantly greater than the potential risk to workers.
Throughout the 2012–2013 winter season, with the permission of FRA, Amtrak conducted a pilot test program of the alternate program used for specific snow-removal activities (see FRA–2011–0077). Amtrak believes that there was an improvement to the safety of the riding public during the pilot program and believes this improvement will continue in the form of faster response times, reduced hazardous walking conditions, and reduced passenger incidents, should the waiver be granted. Amtrak submits that it is logical to assume that removing snow and ice from the tactile or paint-delineated warning areas of passenger station platforms would result in a reduction in slips, trips, and falls due to inclement weather at station platforms. Further, there were no incidents meeting this criteria in the stations that were part of the pilot program.
Amtrak also believes that no negative impact to the safety of workers removing snow will occur under the plan, based upon examination of publicly available data regarding passenger and employee injuries and fatalities on railroad passenger station platforms in addition to the data obtained throughout the pilot test program.
Under Federal Transit Administration oversight, no consistent RWP requirements exist nationwide. Transit agencies are permitted to perform snow-removal activities at station platforms in accordance with protection requirements that the transit agency itself adopts. Many rail transit agencies have adopted policies similar to the practices that Amtrak proposes in this waiver, with no appreciable difference in worker injuries and fatalities on station platforms when compared with FRA data.
Amtrak believes and has observed throughout the pilot test program that the alternate program, as proposed, will provide an equivalent level of safety to the current requirements under RWP,
To ensure that workers using the alternate program to remove snow from platforms are not exposed to undue risk, the following conditions are proposed by Amtrak in its alternate program:
1. Workers are not permitted to use powered equipment, such as snow blowers, to clear the tactile edge area of snow without appropriate on-track safety in accordance with the RWP rule.
2. Any need to breach the strip or to come bodily within the 4-foot clearance envelope to push snow from the platform will require on-track safety in accordance with the RWP rule.
3. Amtrak will train workers to be constantly alert for the movement of trains and to remain in areas of the platform that are inaccessible to trains.
4. The Amtrak training program for the alternate program details the conditions under which on-track safety is needed, in accordance with the RWP rule, as well as the explicit conditions under which workers may occupy the station areas behind the tactile edge to remove snow.
5. The training program explains the purpose of a good-faith challenge as well as how to execute a challenge if work needs to be performed that requires on-track safety in accordance with the RWP rule or is otherwise thought to be unsafe by the worker.
6. Workers must demonstrate an understanding of the types of conditions that would require protection above and beyond that which would be permitted under this proposal, as well as the methods to execute a good-faith challenge.
7. Workers must hold a job briefing before any work starts.
8. Workers removing snow from station platforms under the alternate program will not be permitted to work in single-man crews.
Under the alternate program procedures, workgroups would be required to appoint a safety monitor. The safety monitor would be required to conduct the job briefing and to maintain a means to contact Amtrak personnel as necessary. Safety monitors would observe all work for compliance with the requirements of the protection procedures and would ensure that all work would stop in the presence of a train.
Amtrak does not seek a waiver from RWP requirements when a worker is fouling the track in order to remove snow from areas other than the platform, such as clearing an inner-track walkway or when a worker is required to bodily breach the tactile edge. Many of the prior incidents within the industry occurred under precisely the same conditions under which Amtrak's proposed procedures would still mandate full RWP protection.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
Communications received by September 16, 2013 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.–5 p.m.) at the above facility. All documents in the public docket are also available for inspection and downloading on the Internet at the docket facility's Web site at
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See
Surface Transportation Board, DOT.
Decision No. 3 in FD 35523; Notice of Acceptance of Application and Related Filings; Issuance of Procedural Schedule.
The Surface Transportation Board (Board) is accepting for consideration the application submitted on June 14, 2013, and supplemented on July 2, 2013, by CSX Transportation, Inc. (CSXT), and Louisville & Indiana Railroad Company, Inc. (L&I). The application seeks Board approval under 49 U.S.C. 11323
The Board finds that the Transaction is a “minor transaction” under 49 CFR 1180.2(c), and that the application, as supplemented on July 2, 2013, is complete.
The effective date of this decision is August 1, 2013. Any person who wishes to participate in this proceeding as a party of record (POR) must file, no later than August 15, 2013, a notice of intent to participate. All comments, protests, requests for conditions, and any other evidence and argument in opposition to the application, including filings by the U.S. Department of Justice (DOJ) and the U.S. Department of Transportation (DOT), must be filed by September 30, 2013. Responses to comments, protests, requests for conditions, and other opposition on the transportation merits of the Transaction, and rebuttal in support of the application must be filed by October 21, 2013.
The Board's Office of Environmental Analysis (OEA) will issue a Draft Environmental Assessment (EA) on August 30, 2013, for public review and comment. Comments on the Draft EA will be due by September 30, 2013. OEA expects to issue a Final EA completing the environmental review process on or before November 6, 2013.
If a public hearing or oral argument is held, it will be held on a date to be determined by the Board. The Board expects to issue its final decision by December 6, 2013, unless more time is needed to permit the completion of the environmental review process, and to make the decision effective by December 26, 2013. For further information respecting dates, see the Appendix (Procedural Schedule).
Any filing submitted on the transportation merits in this proceeding must be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions found on the Board's Web site at
Jonathon Binet, (202) 245–0368. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1–800–877–8339.]
CSXT is a wholly owned subsidiary of CSX Corporation and is a Class I railroad that owns and operates approximately 21,000 miles of railroad lines in the United States and Canada. As relevant here, CSXT currently operates over the Line pursuant to trackage rights.
L&I, a Class III railroad, is a wholly owned subsidiary of Anacostia Rail Holdings. L&I owns and operates 106 miles of rail lines in Kentucky and Indiana. Prior to L&I's acquisition of the Line, it was owned by Consolidated Rail Corporation. Currently, the Line handles two trains per day between Indianapolis and Seymour, Ind. (L&I); four trains per day between Seymour and Jeffersonville Yard, Ind. (2 L&I and 2 CSXT); and seven trains per day between Jeffersonville Yard and Louisville, Ky. (5 L&I and 2 CSXT).
Joint use of the Line would be made possible through CSXT's acquisition and use of a perpetual, non-exclusive freight railroad operating easement over the Line. In order to accomplish this, CSXT and L&I have entered into a Transaction Agreement, Easement Agreement, and Joint Use Operating Agreement, as well as other agreements. L&I has agreed to sell the easement to CSXT for $10 million. As a result of the Transaction, CSXT would fund an upgrade of the Line, which would result in the following improvements: upgrade of the track from FRA Class 2 (up to 25 mph) to FRA Class 4 track (up to 60 mph), replacement of a bridge, modernization of the current dispatching system, and completion of upgrades necessary to permit the handling of 286,000 pound gross weight on rail cars (GWOR). These upgrades are estimated to cost between $70 million and $90 million, and would be completed within seven years. L&I would continue to provide overhead service and exclusive local service, while CSXT would continue to provide overhead service on the Line.
Applicants claim that the upgrades to the Line will increase the efficiency and performance of both CSXT's and L&I's operations. Once the upgrades are completed, Applicants state that there will be 17 trains (2 L&I and 15 CSXT) per day operating between Indianapolis and Jeffersonville Yard, Ind.; and 20 trains (5 L&I and 15 CSXT) per day operating between Jeffersonville Yard, Ind. and Louisville, Ky.
Under the Joint Use Operating Agreement, the existing track would be improved to allow the Line to handle cars weighing 286,000 pounds GWOR, rather than the current weight of 263,000 pounds GWOR. L&I would be able to use the Line as it does today, however, L&I would be required to pay CSXT for use of the upgraded line for cars weighing more than 263,000 pounds GWOR or taller than 18′6″ above the top rail when CSXT is not involved in the movement of the car (referred to as “subject cars”).
Applicants state that CSXT currently uses trackage rights over the Line to relieve some of the congestion on its Louisville Cincinnati Subdivision (LCL Subdivision).
Applicants request that the Board impose the employee protective conditions set forth in
Based on a review of the application and supplement, the Board finds that the Transaction does not appear to be of regional or national transportation significance and therefore qualifies as a “minor transaction” under the Board's regulatory scheme. The Board has identified some provisions in the parties' agreements that may have anticompetitive effects. Under Section 4 of Attachment C to the Joint Use Operating Agreement, the fee L&I must pay CSXT for overhead movement of certain cars on the upgraded track between milepost 4.0 and milepost 98.3 could be an anticompetitive effect because it may create a disincentive for L&I to interchange with carriers other than CSXT. Furthermore, this provision would continue in perpetuity. In addition, the Transaction explicitly precludes L&I from granting operating rights to other Class I railroads without the permission of CSXT. Because the compensation arrangement only applies to 286,000 pounds GWOR and cars above a certain height—both of which are car types that L&I does not presently handle—the provisions do not appear to affect L&I's ability to continue its current operations and serve the shippers it serves today. In other transactions involving a significant capital investment by a railroad to improve lines that it does not own or fully control, the Board has permitted certain restrictions similarly aimed at protecting that investment.
Here, the Board finds the Transaction to be a “minor transaction” because it appears on the face of the application, as supplemented, that any anticompetitive effects of the Transaction would clearly be outweighed by the contribution to the public interest. The proposed upgrades to the Line would allow more efficient operations by both L&I and CSXT. L&I would receive an upgraded track, from FRA Class 2 (up to 25 mph) to FRA Class 4 track (up to 60 mph), a new bridge, and upgraded dispatching and signaling systems. Customers along the Line would receive faster service and be able to use heavier and taller cars.
The Board's findings regarding competitive impact and contributions to the public interest are preliminary. The
The Board accepts the application for consideration because it is in substantial compliance with the applicable regulations governing “minor transactions.”
If a request is made in the notice of intent to participate to have more than one name added to the service list as a POR representing a particular entity, the extra name will be added to the service list as a “Non-Party.” The list will reflect the Board's policy of allowing only one official representative per party to be placed on the service list, as specified in Press Release No. 97–68 dated August 18, 1997, announcing the implementation of the Board's “One Party-One Representative” policy for service lists. Any person designated as a Non-Party will receive copies of Board decisions, orders, and notices but not copies of official filings. Persons seeking to change their status must accompany that request with a written certification that he or she has complied with the service requirements set forth at 49 CFR 1180.4, and any other requirements set forth in this decision.
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
It is ordered:
1. The application in FD 35523, as supplemented, is accepted for consideration.
2. The parties to this proceeding must comply with the procedural schedule adopted by the Board in this proceeding as shown in the Appendix.
3. The parties to this proceeding must comply with the procedural requirements described in this decision.
4. This decision is effective on August 1, 2013.
By the Board, Chairman Elliott, Vice Chairman Begeman, and Commissioner Mulvey.
United States Mint, Treasury.
Notice of Proposed New System of Records
In accordance with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a, the Department of the Treasury (“Treasury”) and the United States Mint proposes to establish a new system of records entitled, “Treasury/United States Mint .013—United States Mint National Electronic Incident Reporting System of Records.”
Comments must be received no later than September 3, 2013. The proposed new system of records will become effective September 10, 2013 unless comments are received that would result in a contrary determination.
Comments should be sent to the Disclosure Officer, United States Mint, 801 9th Street NW., Washington, DC 20220, Attention: Privacy Act Systems of Record. Comments may be faxed to (202) 756–6153, or emailed to
For general questions and privacy issues, please contact Kathleen Saunders-Mitchell, Disclosure Officer, (202) 354–7600, United States Mint, 801 9th Street NW., Washington, DC 20220.
Pursuant to the Privacy Act of 1974, as amended, 5 U.S.C. 552a, Treasury and the United States Mint proposes to establish a new system of records entitled, “Treasury/United States Mint .013—United States Mint National Electronic Incident Reporting System of Records.”
The United States Mint is establishing the United States Mint National Electronic Incident Reporting System of Records to enhance the incident management capabilities of the United States Mint Police. The system will be a centrally managed electronic database and workflow system that will support the collection, management, and sharing of information regarding reported incidents on or related to United States Mint property; property for which the United States Mint shares jurisdiction through a Cooperative Agreement, Memorandum of Understanding or other arrangement; or property or assets under United States Mint custody or control. It is intended to be usable by all United States Mint Police Officers in accordance with applicable procedures, improve data management and security, and provide a tracking system to notify supervisors of case status.
While the system is generally organized by incident and not by individual, it contains personal information on individuals searchable by individual name or other personal identifier. Information in the system is expected to include some or all of the following: Individual names, addresses, phone numbers, dates of birth, driver's license numbers, social security numbers, license plate numbers, medical information (typically in the case of accidents or injuries), investigation information, property descriptions, vehicle identifying information and physical descriptions. Information collected is protected throughout the life cycle of the system.
All information about an individual provided to the United States Mint Police that becomes part of this system of records in connection with incidents on or related to the following will be subject to the Privacy Act and to the Privacy Act exceptions and routine uses applicable to the data: United States Mint property; property for which the United States Mint Police share jurisdiction (through a Cooperative Agreement, Memorandum of Understanding or other arrangement); or property or assets under United States Mint custody or control.
The individuals who will have access to the system include authorized employees and contractors working for the United States Mint who have undergone security background checks, have Privacy Act clauses in their contracts, and have signed nondisclosure agreements with the United States Mint. The program office and system owner will be responsible for assuring proper use of the data contained in the system. Paper records are stored in secured filing cabinets with access only by authorized personnel. Electronic records are stored in secured systems subject to access controls in accordance with Department of the Treasury and United States Mint policies and procedures. Access to electronic records is restricted to authorized personnel, and is subject to multiple controls including an access approval process, unique user identifier, user authentication and account management, and password management.
Authority for this system derives from 40 U.S.C. 1315, 31 U.S.C. 321, 31 U.S.C. 5141 (note), and Treasury Order 101–33 (March 30, 2010). Below is the description of the Treasury/United States Mint .013—United States Mint National Electronic Incident Reporting System of Records. In accordance with 5 U.S.C. 552a(r), Treasury has provided a report of this system of records to the Office of Management and Budget and to Congress.
United States Mint National Electronic Incident Reporting System of Records.
United States Mint, 801 9th Street NW., Washington, DC 20220.
Employees, contractors, visitors and other members of the general public
Information in the system is expected to include some or all of the following:
• individual names,
• addresses,
• phone numbers,
• dates of birth,
• driver's license numbers,
• social security numbers,
• license plate numbers,
• medical information (typically in the case of accidents or injuries),
• investigation information,
• property descriptions,
• vehicle identifying information and physical descriptions.
40 U.S.C. 1315; 31 U.S.C. 321; 31 U.S.C. 5141 (note); Treasury Order 101–33 (March 30, 2010).
The purpose of this system is to enhance the incident management capabilities of the United States Mint Police. This is a centrally managed electronic database and workflow system that will: Support the collection, management, and sharing of information regarding reported incidents on or related to United States Mint property; property for which the United States Mint shares jurisdiction through a Cooperative Agreement, Memorandum of Understanding or other arrangement; or property or assets under United States Mint custody or control. It is intended to be usable by all United States Mint Police Officers in accordance with applicable procedures, improve data management and security, and provide a tracking system to notify supervisors of case status.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside Treasury as a routine use pursuant 5 U.S.C. 552a(b)(3) as follows:
1. 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;
2. A federal, state, or local agency that has requested information relevant to or necessary to the requesting agency's or the bureau's hiring or retention of an employee, or issuance of security clearance, license, contract, grant or other benefit;
3. A court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations; in response to a court-ordered subpoena; or in connection with criminal law proceedings;
4. A Congressional office in response to an inquiry made at the request of the individual to whom the record pertains;
5. The news media at the Department of Justice's direction or approval, in accordance with guidelines contained in 28 CFR 50.02 which relate to an agency's functions relating to civil and criminal proceedings;
6. Third parties during the course of an authorized criminal or administrative investigation;
7. Accounting offices, managers, supervisors and government officials pertaining to cash receivables and debts owed to the Federal Government;
8. Appropriate agencies, entities, and persons when (a) the United States Mint suspects or has confirmed that the security, confidentiality or availability of information in the system of records has been compromised; (b) the United States Mint 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 United States Mint or another agency or entity) that rely on the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the United States Mint's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Paper documents and electronic records.
Records may be retrieved by name or an identifier, including social security number and driver's license number.
Paper records are stored in secured filing cabinets with access only by authorized personnel. Electronic records are stored in secured systems subject to access controls in accordance with Treasury and United States Mint policies and procedures. Access to electronic records is restricted to authorized personnel, and is subject to multiple controls including an access approval process, unique user identifier, user authentication and account management, and password management.
Records are maintained and disposed of in accordance with National Archives and Records Administration (NARA) regulations, and NARA-approved records retention schedules.
Chief, Policy and Training Branch, United States Mint Police, United States Mint, 801 9th Street NW., Washington, DC 20220.
Individuals wishing to be notified if they are currently named in this system of records, seeking access to any record contained in this system of records, or seeking to contest its content, may inquire in writing in accordance with instructions appearing at 31 CFR part 1, subpart C, appendix H. Requests for information and specific guidance on where to send requests for records may be addressed to: Disclosure Officer, United States Mint, 801 9th Street NW., Washington, DC 20220.
When seeking records about yourself from this system of records, you must first verify your identity by providing at least one of the following: (a) United States Federal employee identification; (b) driver's license; (c) or other official document. You must provide your full name, current address and date of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. In addition you should provide the following:
• An explanation of why you believe the United States Mint would have information on you;
• Specify when you believe the records would have been created;
• Provide any other information that will help determine the location of responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that
Without this bulleted information the United States Mint may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
Records are obtained from employees, contractors, visitors, and other members of the general public involved in incidents on or related to: United States Mint property; property for which the United States Mint Police share jurisdiction through a Cooperative Agreement, Memorandum of Understanding or other arrangement; or property or assets under United States Mint custody or control. Sources may also include the National Crime Information Center database, Department of the Treasury's Office of Inspector General, and other federal, state or local law enforcement agencies conducting investigations that they or the United States Mint initiate.
None.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return.
Written comments should be received on or before September 30, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1098–E, Student Loan Interest Statement.
Written comments should be received on or before September 30, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before September 30, 2013 to be assured of consideration.
Direct all written comments to Yvette B. Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
To obtain additional information, or copies of the information collection and instructions, or copies of any comments received, contact Elaine Christophe, at (202) 622–3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The Department of the Treasury and the Internal Revenue Service, as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to take this opportunity to comment on the proposed or continuing information collections listed below in this notice, as required by the Paperwork Reduction Act of 1995, (44 U.S.C. 3501
Currently, the IRS is seeking comments concerning the following forms, and reporting and recordkeeping requirements:
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1118, Foreign Tax Credit-Corporations.
Written comments should be received on or before September 30, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent
Written comments should be received on or before September 30, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13(44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning nonbank trustees.
Written comments should be received on or before September 30, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the information collection should be directed to Allan Hopkins at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning capitalization of certain policy acquisition expenses.
Written comments should be received on or before September 30, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Allan Hopkins at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 990–N, Electronic Notice (e-Postcard) for Tax-Exempt Organizations not Required To file Form 990 or 990–EZ.
Written comments should be received on or before September 30, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the forms and instructions should be directed to Allan Hopkins, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Notice.
Ann Page (202) 260–6473.
Rising health care costs coupled with the growing concern over the level of and variation in quality and efficiency in the provision of health care raise important challenges for the United States. Section 183 of MIPPA created Section 1890 of the Social Security Act, which requires the Secretary of the Department of Health and Human Services (HHS) to contract with a consensus-based entity to perform multiple duties pertaining to health care performance measurement. These activities support HHS's efforts to promote high-quality, patient-centered, and financially sustainable health care. The statute mandates that the contract be competitively awarded for a period of four years and may be renewed under a subsequent bidding process.
In January, 2009, a competitive contract was awarded by HHS to the National Quality Forum (NQF) for a four-year period. The contract specified that the CBE should conduct its business in an open and transparent manner, provide the opportunity for public comment and ensure that membership fees do not pose a barrier to participation in the scope of HHS's contract activities, if applicable.
The HHS four-year contract includes the following major tasks:
(i) The implementation of quality and efficiency measurement initiatives and the coordination of such initiatives with quality and efficiency initiatives implemented by other payers;
(ii) recommendations on an integrated national strategy and priorities for health care performance measurement;
(iii) performance of its duties required under its contract with HHS;
(iv) gaps in endorsed quality and efficiency measures, which shall include measures that are within priority areas identified by the Secretary under the National Quality Strategy established under section 399HH of the Public Health Service Act (National Quality Strategy), and where quality and efficiency measures are unavailable or inadequate to identify or address such gaps;
(v) areas in which evidence is insufficient to support endorsement of quality and efficiency measures in priority areas identified by the Secretary under the National Quality Strategy, and where targeted research may address such gaps; and
(vi) the convening of multi-stakeholder groups to provide input on: (1) The selection of quality and efficiency measures from among such measures that have been endorsed by the CBE and such measures that have not been considered for endorsement by the CBE but are used or proposed to be used by the Secretary for the collection or reporting of quality and efficiency measures; and (2) national priorities for improvement in population health and the delivery of health care services for consideration under the National Quality Strategy.
Section 1890(b)(5)(B) of the Social Security Act requires Secretarial review and publication of this report in the
The first annual report covered the performance period of January 14, 2009 to February 28, 2009 or the first six weeks post contract award. In March 2009, NQF submitted the first annual report to Congress and the Secretary of HHS. Given the short timeframe between award and the statutory requirement for the submission of the first annual report, this first report provided a brief summary of future plans. The Secretary published a notice in the
In March 2010, NQF submitted to Congress and the Secretary the second annual report covering the period of performance of March 1, 2009 through February 28, 2010. The second annual report was published in the
In March 2011, NQF submitted the third annual report to Congress and Secretary of HHS. The third annual report, which covers March 1, 2010 through February 28, 2011, was published in the
In March 2012, NQF submitted its fourth annual report to Congress and the Secretary. The report covers the period of performance of January 14, 2011 through January 13, 2012. The fourth annual report was published in the
In March 2013, NQF submitted its fifth annual report to Congress and the Secretary. The report covers the period of performance of January 14, 2012 through December 31, 2012. Because the first annual report covered only six weeks, there have been five annual reports under this four-year contract. This notice complies with the statutory requirement for Secretarial review and publication of the fifth NQF annual report.
Submitted in March 2013, the fifth annual report to Congress and the Secretary spans the period of January 14, 2012 through December 31, 2012.
A copy of NQF's submission of the March 2013 annual report to Congress and the Secretary of HHS can be found at:
This report was funded by the U.S. Department of Health and Human Services under contract number: HHSM–500–2009–00010C.
In the last six years, Congress passed statutes that call upon HHS to work with a consensus-based entity (the entity) to facilitate multi-stakeholder input into (1) setting national priorities for improvement in quality and (2) recommending use of performance measures in federal programs to achieve these priorities. The statutes also call upon a consensus-based entity to review and endorse a portfolio of standardized performance measures to be used by stakeholders in public and private quality improvement and accountability programs.
This fourth Annual Report highlights NQF's work conducted between January 14, 2012 and December 31, 2012 related to these statutes and conducted under a federal contract with the U.S. Department of Health and Human Services.The deliverables produced under contract in 2012 are referenced throughout this report, and a full list is included in Appendix A.
Since 2009, the NQF-convened National Priorities Partnership (NPP) has helped to provide multi-stakeholder input into the selection of high-impact goals, related priorities, and subsequent strategies that constitute the first-ever National Strategy for Quality Improvement in Healthcare (NQS). Released in 2011, the NQS outlines three specific aims for the U.S. healthcare system—better care, healthy people and communities, and affordable care. To achieve these aims, the NQS established six priorities to help the healthcare community focus their efforts, including:
• Making care safer by reducing harm caused in the delivery of care;
• Ensuring that each person and family are engaged as partners in their care;
• Promoting effective communication and coordination of care;
• Promoting the most effective prevention and treatment practices for the leading causes of mortality, starting with cardiovascular disease;
• Working with communities to promote wide use of best practices to enable healthy living; and
• Making quality care more affordable for individuals, families, employers, and governments by developing and spreading new healthcare delivery models.
The NPP is a collaborative public-private partnership of more than 50 organizations that have a shared stake in how healthcare is delivered, received, and paid for. NPP continues to advise HHS on how to evolve the NQS' three aims, and its counsel was well reflected in HHS's 2012
Beyond forging agreement at the strategic goal level, it is challenging to get leaders to implement agreed-upon strategies at the care delivery and community level, given limited time and resources. In 2012, NPP focused on how to advance patient safety by aligning its work with HHS' “Partnership for Patients” effort. Through a series of web-based and in-person meetings that NPP hosted throughout 2012, nearly 2,700 participants from multiple sectors were able to learn about and share new improvement approaches, information, tools, and professional connections to accelerate their individual contributions to achieving safety related improvements. At a more detailed level, NPP developed action plans to focus a range of national and local organizations in diverse sectors on how to align efforts to reduce preventable readmissions and improve maternity care, relying on proven interventions. NPP also created a web-based system or “action registry” to track related commitments to improvement activities focused on readmissions and maternity care to enable learning across participants. Launched in the fourth quarter of 2012, the registry now houses over 50 actions by 30 different organizations.
NQF strategically manages its portfolio of 700-plus endorsed measures to increase impact and decrease burden, growing the portfolio in some areas and shrinking it in others. More specifically, it replaces existing measures with those that are better, reflect new medical evidence, or are more relevant; removes measures that are no longer effective or where the evidence base has evolved; and expands the portfolio to address well-recognized measurement gaps.
The NQS priorities guide the management of the measure portfolio by NQF expert committees. In addition to concentrating on endorsing measures suitable for public reporting, performance-based payment, and other accountability purposes, NQF evolves its portfolio so that the measures are also clinically relevant and actionable for providers. Payers and patients are interested in measures that they can use to compare and select providers; clinicians and hospitals seek clinically relevant measures to benchmark themselves against so they have the information they need to focus their improvement efforts for the benefit of their patients. A mix of measures is essential to creating and continuously evolving a portfolio that meets the needs of diverse stakeholders.
In 2012, NQF completed 16 endorsement projects—reviewing 430 submitted measures and endorsing 301 measures, or 70 percent. This set included 81 new measures and 220 measures that maintained their endorsement after being considered in light of new evidence and/or against new competing measures submitted to NQF for consideration. The newly endorsed measures align with needs identified in the NQS and address several critical areas, including patient outcomes, underserved populations, healthcare disparities, and hospital readmissions.
In comparison, NQF completed 11 projects and endorsed 170 measures in 2011. This increased productivity can be attributed to efforts to make the review process more efficient—the average measure review time decreased from 12 months to 7 months during 2012—as well as to other enhancements to the endorsement process. Specifically, as part of the Consensus Development Process pilot program, NQF provided earlier, more detailed feedback to measure developers about a first-order criterion (i.e., importance to measure) to further the goal that development dollars are spent on measures that are viewed as consequential by the field. Furthermore, when a measure is re-evaluated for continued endorsement, NQF now requires committees to consider the measure's use and whether such use has resulted in improvement or has led to unintended consequences, ensuring that committee members are informed about the measure's impact.
In an effort to move beyond measures that rely on administrative data or that are collected from paper-based medical records, NQF continued its work in 2012 to facilitate the development and reporting of electronic measures, or eMeasures, that can help accelerate the adoption of electronic health records (EHRs). Such efforts include work at the granular level (e.g., standardizing data elements so they can be collected from varied EHRs to build eMeasures) and at the more conceptual level (e.g., the NQF-convened eMeasure Learning Collaborative). Created by NQF at the behest of measure developers, EHR vendors, HHS, and clinicians, the eMeasure Learning Collaborative is a forum for sharing best practices and tackling issues that are barriers to developing and implementing eMeasures, such as figuring out how to enhance “upstream” communication between measure developers and other stakeholders so that affected parties have the opportunity to collaborate on data requested and its representation in eMeasure logic during the measure development process. In 2012, NQF also launched the Health IT Knowledge Base and glossary to facilitate a unified understanding of terms and measurement approaches used in EHRs and more broadly, health IT, and to disseminate best practices, among other projects.
Agreement about how to define quality, safety, and costs in a portfolio of endorsed measures is an important first step toward measure alignment, which then needs to be followed by consensus across stakeholder groups about the use of endorsed measures.
The NQF-convened MAP—which comprises stakeholders from a wide array of healthcare sectors and 10 federal agencies, as well as 110 subject matter experts—focuses on recommending measures for federal public reporting, payment, and other programs to enhance healthcare value. As part of its mission, MAP also strives for alignment with the private sector on the use of such measures. In February 2012, MAP provided multi-stakeholder input to HHS about the considered use of measures in over 17 different federal Medicare benefit programs and the Electronic Health Record (EHR) Incentive Program as a part of its first annual pre-rulemaking report required by statute. This input was well-heeded, as evidenced by a degree of concordance—or agreement between MAP's recommendations and the Centers for Medicare & Medicaid Services (CMS) final rules for quality reporting, public reporting, and value-based purchasing programs issued in 2012—which averaged 70 percent concordance across programs.
To help guide future measure development related to the NQS and to inform use of measures in value-based programs going forward (including future annual pre-rulemaking reports to HHS), MAP released a Strategic Plan for Measurement in October 2012. A key part of the plan focuses on defining the concept of “families of measures” in high-impact areas, some of which cross conditions and settings. The objective of these families, or sets of measures, is to knit together related measures currently found in different programs, care settings, levels of analysis, and populations to drive improvement and reduce measurement burden. In addition, the plan calls for further engagement of stakeholders to glean additional feedback about measure use and usefulness.
At the same time, MAP released its Families of Measures report, which defines measure families in four key areas—safety, care coordination, cardiovascular, and diabetes care—with the goal of promoting more cohesion and integration of care regardless of setting, provider, level of intensity, or timing. An additional and equally important goal is reducing measurement and reporting burden through alignment for hospitals, physicians, and other providers as it relates to these four areas.
A 2012 NQF analysis (conducted outside of the federal contract) of NQF-endorsed measures in use shows that about 29 percent of measures are being used by two or more key stakeholders simultaneously, including the federal government, private payers, states, communities, and other users. Given its size and reach, the federal government is an important driver, using more than half of NQF's measure portfolio in its various pay-for-reporting and pay-for-performance programs, followed by private payers and states using 41 percent and 28 percent, respectively. Further, NQF's analysis shows that alignment in use of the same measures increased across these key sectors between 2011 and 2012.
The science of performance measurement continues to evolve in response to the needs and preferences of
The extent to which each NQS priority at the goal level has NQF-endorsed measures available to drive change is varied but generally promising. For example, a large part (40%) of the NQF portfolio addresses the important area of patient safety which includes healthcare acquired conditions and hospital readmissions. Fewer measures (7 percent) address patient and family engagement. Overall, measures for specific goals—including shared decision-making, patient navigation and self-management, shared accountability, healthy lifestyle behaviors, community interventions to improve health, and access, cost, and resource use—are less prevalent.
Looking across both the NQS priority areas and high-impact Medicare and child health conditions, the analysis found gaps in measures of preventive care, patient-reported outcomes (particularly quality of life and functional status), appropriateness (particularly for specialty care), access to timely palliative care, and health and healthcare disparities. Additionally, the analysis revealed the need for better population-level measures to assess improvements in health and healthcare. An assessment of the NQF portfolio of endorsed measures revealed that while certain high-impact conditions have an abundance of measures—e.g., cardiovascular disease, end-stage renal disease, and diabetes—many of the high-impact childhood conditions have few or no NQF-endorsed measures. Finally, all but one of the 92 NQF-endorsed measures in use in federal and at least two other non-federal programs address a specific NQS goal or a high-impact condition.
While certainly there is room for improvement, the analysis suggests that the existing portfolio generally addresses agreed upon frameworks and that there is alignment in use of such measures across various sectors. Going forward, resources should be dedicated to delving more deeply into the identified gap areas to prioritize measure development and endorsement efforts so that the most needed measurement gaps are addressed first.
Furthermore, NQF's efforts are focused on furthering alignment as it relates to measurement strategies to enhance healthcare value through its public-private partnerships and its evidence-based, consensus-driven method for reviewing and endorsing measures. Ultimately, however, for the U.S. healthcare system to be transformed, measurement-driven efforts will need to be mutually reinforced with changes to current payment and delivery systems that drive the system toward greater integration and accountability. Only then will we be able to put the U.S. healthcare system on the path to achieving the NQS' three, interconnected, and ambitious aims.
The National Quality Strategy (NQS), released in March 2011, set forth a cohesive roadmap for achieving patient-centered, affordable care that promotes healthy people and communities (see pages 3–4 for a more detailed explanation). Upon its release, its authors emphasized that the national quality strategy requires the active engagement and support of healthcare stakeholders across the country for quality improvements and success.
For the increasing number of stakeholders that have committed to making the NQS a reality, the path and methods to achieve its aims are not always apparent. Additionally, as the hard work of achieving care of the highest value accelerates, stakeholders are increasingly recognizing that performance measurement and quality improvement are only achievable by working across sectors and organizations, and they seek effective and efficient ways to connect across the healthcare delivery system.
The NPP focused its 2012 efforts on bringing diverse people and organizations together in their pursuit of the NQS, and in conducting analyses and activities that helped to refine the next critical priorities of the healthcare community.
NPP members called for the creation of the NQS and in 2012 continued to shape its direction by offering input to the HHS Secretary. In September 2011, HHS asked the NPP to recommend measures for evaluating progress in achieving the NQS. This input was integrated into the 2012
In addition to offering multi-stakeholder input on the NQS, the NPP focused on helping to disseminate proven and scalable solutions for its implementation; making connections across sectors and between organizations; and inspiring people to take highly focused, coordinated, and targeted action. Much of this work happened as part of the HHS Partnership for Patients patient safety effort, which has two ambitious and important goals: reducing hospital-
Establishing the “who, what, how, and when” of action is the first step in solving large-scale challenges that cut across organizations and sectors. To that end, NPP partners and an extended network of contributors (more than 750 in total) spent part of 2012 developing these problem-solving pathways—with an initial focus on fashioning shared solutions to improving maternity care and reducing preventable readmissions. The NPP selected these two areas for specific reasons. Current trends in maternity care and readmissions demonstrate an opportunity for improvement that can simultaneously reduce unnecessary patient harm and healthcare costs. Both areas also represent aspects of healthcare ripe for pooling and focusing the efforts of many—patients and families, providers, payers, and policymakers, to name a few.
For example, since 1979, the American Congress of Obstetricians and Gynecologists (ACOG) has advocated for the avoidance of elective deliveries before 39 completed weeks gestation, yet early elective inductions are common in the United States despite the known potential harms for mothers and babies.
In addition to these two specific areas of focus, NPP hosted several larger scale forums on behalf of the Partnership for Patients in 2012. NPP-hosted forums were designed to identify innovative ways to help multiple organizations meet Partnership for Patients' safety goals and to help spread proven patient safety interventions. Without these exchanges, organizations often find themselves trying to improve in a vacuum, working with a limited number of ideas and/or interventions, or struggling to innovate given their human and financial resources. The structure of these forums, oriented around idea exchanges and sharing of case studies and examples, fostered efficient information sharing, so that those on the frontlines of improving patient safety were supported in their efforts and therefore could more readily effect change. More than 400 organizations that support the Partnership for Patients attended these events. The first three meetings were focused on education regarding the National Quality Strategy and the importance of alignment between sectors; catalyzing action; and sharing success stories in achieving patient safety. The November 2012 NPP-Partnership for Patients event focused exclusively on how to achieve meaningful patient and family engagement, which is essential for solving all patient safety issues and achieving a patient-centered healthcare system. After the first meeting in January 2012, 100 percent of attendees felt the meeting enhanced their ability to contribute to public-private sector collaboration. NPP augmented the four in-person forums with online educational `webinars.' In total, over the course of 2012, nearly 2,700 people from multiple sectors participated in NQF-hosted webinars and in-person events in support of the Partnership for Patients.
In 2012, NQF designed a web-based, interactive “registry” where organizations can share information about their own actions to advance the NQS; search data about the actions of others; find partners to work with; and learn from others. The registry, available on the NQF Web site, allowed for broader engagement, participation, and content that facilitates alignment around a focused set of patient safety activities and that clarifies who is doing what, when, with whom, and to what end. Launched in the fourth quarter of 2012, the registry now houses over 50 actions by 30 different organizations.
Standardized healthcare performance measures help clinicians understand whether the care they offered their patients was optimal and appropriate, and if not, where to focus their efforts to improve the care they deliver. Measures are also used by all types of public and private payers for a variety of accountability purposes, including feedback and benchmarking, public reporting, and incentive-based payment. Lastly, measures are an essential part of making healthcare more transparent to all, important for those who receive care or help make care decisions for loved ones.
Working with a variety of stakeholders to build consensus, NQF reviews and endorses healthcare performance measures that underpin federal and private-sector initiatives focused on enhancing the value of healthcare services.
Ten years ago, NQF endorsed its first voluntary, national consensus performance measures to answer the call for standardized measurement of healthcare services. These first measures were a stepping-stone for creating a consensus-driven effort that bridged nearly every interested party in healthcare. The 10-year result of this national experiment is a portfolio of more than 700 NQF-endorsed measures, most of which are in use; a more information-rich healthcare system; and a substantial emerging body of knowledge about measure development, use, and quality improvement.
In the past five years, NQF, working in partnership with HHS and others, has focused more intensely on measures that add value and reduce burden for those who provide, pay for, and receive care. This movement has been facilitated through more stringent evaluation criteria that place greater emphasis on evidence and a clear link to outcomes, demonstrable impact and gaps in care, and testing that demonstrates measures' reliability and validity. NQF also has laid the foundation for the next generation of measures, including guidance on composite measurement, patient-reported outcome measures, disparities-sensitive measures, electronic or eMeasures, and measures that evaluate complex but important areas such as resource use and population health. These activities are intended to inform the path toward targeted, prioritized measure development.
There is increasing evidence that NQF's stringent criteria, portfolio management strategies, and collaboration with developers are having the desired effect on the portfolio. For example, in 2012 we observed the following:
• Guidance that expressed NQF's strong preference for outcome measures and that required process measures to demonstrate a clear link to outcomes led to more endorsed outcome measures. At the end of 2012, 27 percent of the measures in NQF's portfolio were outcome measures, compared to 24 and 18 percent in 2011 and 2010, respectively.
• A focus on harmonization resulted in fewer duplicative measures, and steering committees selecting the best-in-class measure whenever possible.
• Developers submitted more tested measures—which are more reliable, valid, and likely to meet NQF endorsement criteria—given NQF's increased emphasis on requirements for measure testing. With fewer untested measures to evaluate, steering committees were able to focus more on evaluating “better” measures.
To apply the concept of constant improvement to its own work, NQF conducted in 2012 Lean improvement activities and other initiatives and/or projects intended to make the consensus development process more predictable, efficient, and navigable for those who develop and evaluate measures, while still maintaining the rigor of its multi-stakeholder process. Measure developers primarily seek an earlier window to get broad-based committee input on a measure concept they are considering investing in; those who use measures are interested in process changes that may further shrink review cycle time while maintaining rigor. All parties are focused on ways to make sure finite measure development resources are used to meet the greatest measurement needs.
To address these issues, NQF took steps to explore restructuring of its Consensus Development Process (CDP) in order to provide early guidance to measure developers on whether a measure concept meets NQF's criterion for “importance to measure and report” before they invest time and resources to fully develop and test a measure. The results of the pilot project, often referred to as the “two-stage CDP,” will be available in 2013; results will be used to drive additional enhancements that meet the critical needs of measure developers.
NQF worked to enhance its approach to harmonization, specifically helping those who review measures to more consistently and adeptly recognize an opportunity for aligning measures. In 2012, NQF also conducted work to help committees evaluate measures for usability, a criterion for NQF endorsement with which steering committee members often struggle during deliberations.
Lastly, outside of the HHS process improvement activities around measure development, NQF created a new multi-stakeholder task force on consensus, which, working with NQF staff, led a series of focus groups and research exercises to determine a definition of consensus and how to establish consensus in rare instances when the NQF membership vote is split.
Results of NQF's Lean improvement work included reducing the
NQF's measure portfolio includes more than 700 performance measures, covering a variety of different conditions and care settings. The portfolio is carefully managed in a variety of ways. First, working with various expert committees, NQF removes or puts into “reserve status” measures that consistently perform at the highest levels or “top out.” This step signals an improvement success and helps to ensure that time is spent instead measuring areas in need of improvement. Second, NQF works with those who create measures to “harmonize” related or near-identical measures to eliminate nuanced differences. Harmonization is critical to
While NQF pursues these proven trimming strategies to make its measure portfolio appropriately lean, it also aggressively seeks measures from the field that will help to fill known measure gaps and to align with the NQS goals. Several important factors motivate NQF to expand its portfolio, including: (1) The need for eMeasures; (2) pressure for measures that are applicable to multiple clinical specialties and settings of care; (3) national pursuit of new payment models such as bundled payment; and (4) the need for more advanced measures that help close cross-cutting gaps, such as care coordination and patient-reported outcomes. The measure portfolio reflects the combined “dynamic yet static” effect of these strategies: Although the portfolio is constantly changing due to new measures cycling in and others cycling out, the relative number of endorsed measures remained steady in 2012. Specifically, 93 measures were added and 103 measures were removed from the portfolio.
The table below provides a snapshot of how the current NQF-endorsed measure portfolio aligns with the NQS, with the percentages reflecting the proportion of NQF-endorsed measures that support each of the six priorities. Some measures are counted in multiple priority areas. The table shows gaps in emerging measurement areas, including affordability, patient- and family-centered care, and community health and individual well-being. Work conducted in 2012 helped to close these known measure gaps and to pave the way for innovative measure development by the healthcare field.
Furthermore, seven measure developers account for 64 percent of NQF's portfolio:
In 2012, NQF completed 16 measure endorsement projects—reviewing 430 submitted measures and endorsing 301. These endorsed measures include 81 new measures and 220 measures that NQF expert committees concluded could maintain their previous endorsement after being reviewed against NQF's criteria and compared to new evidence or competing measures. Overall, measures undergoing maintenance were endorsed at a rate of 55 percent, and new measures submitted for endorsement were endorsed at a rate of 89 percent.
Case in point: In the last year clinical projects with a large number of
The measures endorsed by NQF in 2012 align with needs called out in the NQS and address several critical areas including patient outcomes, hospital readmissions, underserved populations, and healthcare disparities. A complete listing on measures and measurement frameworks endorsed by NQF in 2012 under contract with HHS is available in Appendix A. Highlights include the following:
Patient-reported experience measures. The healthcare community is working toward a more patient-driven system, in which individual needs and preferences are incorporated into care decisions. Measures that address patient experience, coupled with clinical measures, allow for a more comprehensive view of patient care. For example, coupling a measure that assesses whether post-surgical instructions for care were clear to the patient and his or her caregiver with measures that assess hip surgery complication rates creates a more complete picture of a patient's experience.
In 2012, NQF endorsed several measures addressing patient experience in various care settings. For example, a measure from the American College of Surgeons evaluates patient satisfaction during hospitalization for surgical procedures. A measure from the Agency for Healthcare Research and Quality focuses on effective provider communication with patients regarding disease management, medication adherence, and test results. The American Medical Association developed seven measures that were endorsed; these measures address concerns such as individual health literacy, availability of language services, and patient engagement with providers in clinician offices and acute care facilities. Finally, measures from the Center for Gerontology and Health Care Research and the
NQF also convened two expert workshops to explore how patient-reported outcomes (PROs) can be effectively used in performance measurement. Defined as a patient's health status as reported by the patient, PROs are seen as the next step forward in building a patient-centered healthcare system. In the surgical example, a PRO might be information gleaned from a patient about when she could resume basic activities of daily living, start exercising, or return to work. The NQF portfolio already contains some patient-reported outcome measures. For example, patient reports are the basis of an NQF-endorsed measure of depression remission six months after treatment developed by Minnesota Community Measurement. Experiences by community coalitions, physician practices, and others implementing PROs helped inform NQF expert committees over the past year as they figured out how to overcome data, reporting, and methodological barriers to developing and using PRO-based performance measures.
Readmissions measures. About one in five Medicare beneficiaries who leaves a hospital is readmitted within 30 days. Such unplanned readmissions—many of which are potentially preventable—take a significant toll on patients and their families, often resulting in prolonged illness or pain, emotional distress, and days of lost work. These readmissions also cost Medicare about $15 billion annually.
NQF endorsed two hospital-wide, all-cause readmission measures and three condition-specific readmission measures that can help the healthcare community better understand and appropriately reduce hospital readmission rates. These measures align with major safety and affordability issues. However, as performance measures are increasingly used in pay-for-performance programs, concerns about the potential for unintended consequences, such as a negative impact on providers that care for vulnerable populations, have increased. These issues were prominent considerations during the 2012 endorsement deliberations over the hospital-wide, all-cause readmission measure (NQF measure #1789), which was ultimately endorsed. To address multiple stakeholders' needs and concerns about the newly endorsed readmissions measures, the NQF Board of Directors issued guidance regarding the use of hospital-wide measures as it ratified the measure:
Multiple factors affect readmission rates and other measures including the complexity of the medical condition and associated therapies; effectiveness of inpatient treatment and care transitions; patient understanding of and adherence to treatment plans; patient health literacy and language barriers; and the availability and quality of post-acute and community-based services, particularly for patients with low incomes. Readmission measurement should reinforce national efforts to focus all stakeholders' attention and collaboration on this important issue.
In response to continued concerns about the use of the new hospital-wide, all-cause readmission measure (#1789), NQF proposed a series of steps to take place after endorsement of that particular measure, including monitoring implementation; employing an expert multi-stakeholder group to review “dry run” data provided by CMS regarding measure #1789; evaluating new readmission measures for new conditions; and establishing ongoing monitoring approaches that ensure that more systematic feedback from measure users is integrated into endorsement deliberations. NQF also reviewed updates to the readmission measures to remove planned readmissions from the condition-specific measures that are generally not considered signals of quality, and is continuing efforts to harmonize hospital and health plan all-cause readmission measures.
Patient safety measures. Americans are exposed to more preventable medical errors than patients in other industrialized nations, costing the United States close to $29 billion per year in additional healthcare expenses, lost worker productivity, and disability.
NQF endorsed 32 patient safety measures in 2012, focusing on complications such as healthcare-associated infections, falls, medication safety, and pressure ulcers. These measures closely align with goals of the Partnership for Patients to make care safer.
Resource use measures. Healthcare expenditures in the United States are unmatched by any other country. This spending, however, has not resulted in better health for Americans. In general, the United States lags behind other countries in terms of mortality, patient satisfaction, access to care, or quality of care within the healthcare system.
NQF endorsed its first set of resource use measures—designed to understand how healthcare resources are being used—in January 2012, and it endorsed an additional set in April 2012. These measures will offer a more complete picture of what drives healthcare costs from several perspectives. For example, one endorsed measure evaluates a primary care provider's risk-adjusted frequency and intensity of all services used to manage patients—including inpatient/outpatient, pharmacy, laboratory, radiology, and behavioral health services—using standardized prices. Another measure evaluates a primary care provider's risk-adjusted cost effectiveness at managing his patient population using actual prices paid by health plans. Similar measures also evaluate total resources used by individual patients with specific conditions, such as asthma and chronic obstructive pulmonary disease, over the course of a measurement year. And other measures evaluate total costs over an episode of care, such as costs associated with hip/knee replacement, from diagnosis to treatment to rehabilitation. Used in concert with quality measures, these resource use measures will enable stakeholders to identify opportunities for creating a higher value healthcare system.
Harmonized behavioral health measures. In 2012, NQF endorsed 10 measures related to mental health and substance abuse, including measures of treatment for individuals experiencing alcohol or drug dependent episodes; diabetes and cardiovascular health screening for people with schizophrenia or bipolar disorder; and post-care follow-up rates for hospitalized individuals with mental illness. As a part of this process, NQF also brought together CMS and NCQA to harmonize two related measures into one measure addressing antipsychotic medication adherence in patients with schizophrenia.
A multiple chronic conditions measurement framework. People with
Despite the growing prevalence of people with MCCs, existing quality measures typically do not address issues associated with the care for individuals with MCCs, largely because of data sharing challenges and because measures are typically limited to addressing a singular disease and/or specific setting. As a result, NQF endorsed a measurement framework that establishes a shared vision for effectively measuring the quality of care for individuals with MCCs. Measure developers can use this framework to more quickly create measures for this population, filling a current measurement gap.
Healthcare disparities measures. Research from the Institute of Medicine shows that racial and ethnic minorities often receive lower quality care than their white counterparts, even after controlling for factors such as insurance coverage, socioeconomic status, and comorbidities.
With funding from the Robert Wood Johnson Foundation, NQF established a more detailed picture of how to approach measurement of healthcare disparities across settings and populations, beginning with a commissioned paper outlining methodological concerns. To ensure that disparities in care can be addressed most effectively, NQF developed an approach to identify measures that are more sensitive to disparities and, as such, should be stratified. From there, NQF endorsed 12 performance measures that focused on patient-provider communication, cultural competence, and language services, among other issues. Now that these measures are endorsed, HHS has more opportunity to include these kinds of measures, which address a key NQS measurement priority, in federal programs.
Various healthcare entities gather, store, and need to access information about performance measures. Over the years, different measure information systems have been built, each with differing purposes, structure, and content. This diversity of places and approaches to storing such information confounds the ability to find and coordinate pieces of information about a given measure, such as a specific version, unique identifying number or name, specifications, purpose and context, and benchmarking results.
HHS asked NQF to use its role as a neutral convener to work with a variety of public- and private-sector organizations to conduct a “Registry Needs Assessment.” The assessment was geared toward understanding how various stakeholders currently approach gathering and storing performance measure information; assessing the desirability of a different approach including but not limited to a single “measure registry” system; and identifying the barriers to achieving more aligned and definitive ways to store and access consistent and comprehensive information about measures. The findings included recommendations for first steps such as developing shared definitions of measure “metadata” and versioning standards to enable alignment of measure information.
Currently, healthcare data largely live within system silos and on paper rather than in electronic form, which makes it nearly impossible for data to follow patients through various settings in which they receive care. Healthcare is safer and better coordinated when electronic health records (EHRs) and other clinical information technology systems reliably capture and share data across providers and patients to facilitate care—and as a byproduct of the clinical process—generate performance measurement information. Wide adoption of this kind of electronic infrastructure will spur implementation of the NQS, but has been hampered by a variety of issues.
NQF's health IT work in 2012 focused on pulling together disparate organizations that play a role in moving quality from a paper-based world to one facilitated by technology. The faster we reach consensus on approaches to this new world, the faster we may achieve the goal of a fully empowered and connected electronic information system designed with the patient in mind.
At the global level, NQF launched a series of activities designed to promote shared understanding among those involved in advancing electronic measurement and data infrastructure. It convened the eMeasure Learning Collaborative, a new environment for promoting best practices related to development and implementation of measures applied to electronic data sources (i.e., eMeasures). eMeasures are an innovation in advancing quality measurement, but significant barriers hamper their wider scale creation, adoption, and use. Through two in-person meetings and other virtual convenings, NQF brought together hundreds of stakeholders including government representatives, EHR vendors, measure developers, clinicians, and hospitals—creating a unique forum for these parties to work together on new eMeasurement approaches.
Specific eMeasure best practices emerged from this Learning Collaborative, particularly in three areas: Organizational leadership, data representation and clinical workflow, and learning health systems. For example, regarding data representation, all participants identified the need for measure developers and other stakeholders to communicate earlier in the eMeasurement process, particularly when measure developers are selecting data and representing data in eMeasure logic. For this best practice to become a reality, a national structure and process must exist to enable this level of dialogue. With respect to organizational leadership, participants suggested that provider organizations create inter-professional, physician-led teams focused on an integrated approach to eMeasure adoption, including data capture, reporting, workflow, clinical decision support, and evidence-based practice.
Several of NQF's 2012 projects sought to facilitate a unified understanding of terms and measurement approaches used in the health IT field, so that measure developers and implementers, health IT vendors, standards organizations, and other users of eMeasures and tools work with a similar lexicon. For example, NQF launched the Health IT Knowledge Base, providing answers to some of the most common technical questions about NQF's related initiatives. Since August 2012, NQF added more than 70 new entries to the frequently asked questions section, stemming from its interactions with
As quality measurement shifts to an electronic platform, additional clarity is needed regarding the testing that assures that eMeasures can be used for a range of accountability applications, which require both precision and reliable and valid results. NQF worked with CMS and the Office of the National Coordinator for Health Information Technology (ONC) to ensure that the data capture for eMeasures is feasible without impeding clinical workflow. NQF's health IT initiatives in 2012 scaled down to the granular level as well, to help standardize the efforts of the creators and users of eMeasures. Developed by NQF, the Quality Data Model (QDM) is an “information model” that defines concepts used in quality measures and clinical care in a way that allows the information to be collected automatically from data already stored in an EHR.
An example illustrates how the QDM can simplify and standardize the electronic collection and reporting of quality measures. If a physician's office wants to use its EHR to report on a measure that assesses the percentage of patients with a diagnosis of coronary artery disease (CAD) who were prescribed a lipid-lowering therapy, the EHR must first identify the patients with CAD within the physician's practice and then determine whether the patients had the therapy. If the physician's performance is going to be compared to her peers, then her EHR must define these elements in exactly the same way as every other EHR. The QDM supports this type of query regardless of the type of EHR by defining the necessary standard data elements (e.g., active diagnosis, active medication administered/ordered/dispensed) and the type of coding that the EHR may use to express the result (e.g., ICD–9 code for diagnosis; RxNorm for medication, etc.). When all measure specifications are written in a common way, EHR vendors can more easily ensure that their EHRs can support quality measurement, and the validity of electronic-based reporting programs will likely increase. NQF released an updated version of the QDM in December 2012, which focused on simplifying and standardizing QDM measure logic to support implementation of the federal Meaningful Use regulations. NQF also regularly receives ongoing feedback and insights into best practices from a User Group of measure developers, physicians, hospitals, and EHR vendors who are currently actively involved in eMeasure use.
NQF's work in standardizing eMeasurement extends to measure development. NQF partnered with a software developer to develop the Measure Authoring Tool (MAT), which is a publicly available, free, web-based tool designed to allow measure developers to create eMeasures using the aforementioned QDM, without needing to write programming code. At the end of 2012, NQF prepared to transition the day-to-day operation of the MAT to HHS, giving HHS the opportunity to better position the MAT and eMeasures in federal programs using EHR-based performance measurement, and to support the MAT's evolution.
Also in 2012, NQF completed the
Alignment with respect to use of the same performance measures is a critical strategy for accelerating improvement, reducing wasteful reporting burden, and enhancing transparency in healthcare. The NQF-convened Measure Applications Partnership (MAP), launched in the spring of 2011 as mandated by the Patient Protection and Affordable Care Act (Pub. L. 111–148, section 3014), is a key facilitator of measure alignment across federal programs and between the public and private sectors. The input that the MAP provides to HHS for purposes of the pre-rulemaking process and national priorities under the National Quality Strategy results from multiple stakeholders composed of representatives from more than 60 major private-sector stakeholder organizations, 10 federal agencies, and 40 individual technical experts MAP's input enhances HHS's ability to coordinate its quality and efficiency measurement initiatives with those initiatives implemented by other payers.
More specifically, MAP provides a forum for annual multi-stakeholder input into which performance measures are used in federal public reporting and pay-for-performance programs in advance of related regulations being issued. This approach augments traditional rulemaking, allowing the opportunity for substantive dialogue with HHS before rules are issued, a chance for alignment across programs with respect to use of measures, and consideration of longer term implications. MAP also provides a unique forum for public- and private-sector leaders to develop and then broadly vet a future-focused performance measurement strategy (outlined in the MAP strategic plan below), as well as the shorter term recommendations for that strategy on an annual basis in pre-rulemaking reports. MAP strives to offer recommendations that are cross-cutting and coordinated across: settings of care; federal, state, and private programs; levels of measurement analysis; payer type; and points in time.
Published on February 1, 2012, MAP's first pre-rulemaking report offered recommendations related to 17 federal programs.
• Recommended that 40 percent of the measures that CMS proposed at the end of 2011 move into federal programs targeting clinicians, hospitals, and post-acute care/long-term care (PAC/LTC) settings via rules issued in 2012, with another 15 percent targeted for future consideration after further development, testing, and feasibility issues are worked out. MAP did not support inclusion of the remaining 45 percent primarily because many of the measures did not have enough information, specificity, testing, or proof of implementation feasibility to guide MAP measure evaluation and selection. See Appendix C for the criteria MAP used to guide measure selection.
• Expressed clear preference for both using NQF-endorsed measures and for developing more robust feedback loops. Over 90 percent of the measures that MAP supported for inclusion in the first round of pre-rulemaking input were currently NQF-endorsed, with the remainder likely eligible for expedited review. In addition to these criteria, NQF is establishing more robust feedback loops that can help HHS, MAP, and the broader field to discern which of the endorsed measures are best suited for inclusion in future reporting and value-based purchasing programs. More specifically, in 2012 MAP analyzed what internal and external sources exist to obtain feedback from end users and informally engaged MAP members to understand how they would prioritize varying types of feedback information.
• Considered how to further align measures across public programs and with the private sector with the goal of more targeted, inter-related sets of measures that are reported by different kinds of providers, in different settings, and across time.
• Laid out guiding principles for a three- to five-year measurement strategy where priority is placed on: (1) Measures that drive the system toward meeting the NQS; (2) measures that are person- rather than clinician-focused; and (3) measures that span settings, time, and types of clinicians. Person-centered measurement provides information about what matters to patients (e.g., “Will I be able to run after I recover from knee surgery?”) and that is specific to patient populations or care over time, (e.g., “Did I get the care and support needed to manage my diabetes so that I did not lose my vision or my mobility?”). This kind of measurement is predicated on a redesigned delivery and payment system and an HIT-enabled environment that facilitates both coordination and integration of care for a range of patients across the continuum.
Federal Medicare and Meaningful Use rules issued over the course of 2012 largely followed the MAP pre-rulemaking recommendations for inclusion or exclusion of measures in over 20 different payment and reporting programs that MAP was asked to consider. However, concordance between the HHS final rules issued in 2012 with the MAP 2012 recommendations varied depending on the program (see table below for key
MAP Strategic Plan for Measurement. To spur progress toward a defined set of goals and priorities related to the NQS—which include improved quality and safety, more transparency, and enhanced value—MAP developed a three-year strategic plan for measurement (2012–2015). This plan was released on October 1, 2012, and is intended to inform HHS's future measure development planning, as well as shape annual rulemaking advice in the years ahead. The plan has the following three major components:
• Define sets of measures as
• Engage stakeholders that develop, report, and use measures to glean feedback about the use and usefulness of measures. The idea is to create more effective two-way communication so that the experiences of end users directly inform MAP's recommendations to HHS, contribute to the thinking of the diverse stakeholders that participate directly and indirectly in MAP's activities, as well as inform the work of measure developers as they address identified measurement gaps in a more coordinated fashion.
• Develop analytic support for MAP decision making. The goal is to further enrich MAP's thinking and decision-making by integrating important data and information that are developed across NQF as a strategic byproduct of its different activities. These include input to priority setting and strategies, measurement review and endorsement, and advice on measure selection. This function would also draw upon the various outside efforts under way to glean information about measure use and impact. The analysis and integration of internal and external data will inform and likely refine MAP's overall selection criteria, as well as its recommendations to HHS in future pre-rulemaking reports. In addition, an independent third-party evaluation is planned to determine whether MAP is meeting its overall objectives.
The MAP pre-rulemaking recommendations and strategic plan largely reflect the current reality of our siloed healthcare payment and delivery systems, but anticipate a future system with shared accountability for patient welfare, community health, and stewardship of scarce resources.
MAP selected safety, care coordination, cardiovascular conditions, and diabetes as its first focus areas for identification of families of measures— all areas called out in the NQS and/or leading causes of mortality. MAP's first families of measures report was published on October 1, 2012.
MAP reviewed 676 measures across these 4 topics, using criteria laid out in the report as a guide to inform selection. Of these measures, MAP recommended 55 safety, 60 care coordination, 37 cardiovascular, and 13 diabetes measures for inclusion in 4 distinct families of measures. MAP further defined more discrete core measures, which include available measures, and gaps specific to a care setting (e.g. hospitals, post-acute care/long-term care), level of analysis (e.g. individual clinicians), or population drawn from each family of measures and made program-specific recommendations in its 2013 pre-rulemaking report. MAP anticipates identifying families of measures for patient and family engagement, population health, affordability/cost, and mental health in 2013, pending funding decisions.
MAP defined families of measures with the intent that their implementation would lead to performance improvement and further cohesion and synergy of care in a targeted area. Measures in a given family bridge healthcare settings, types of providers, and time and are interconnected in the way patients would ideally like to experience care. Families of measures also include identifying measure gaps, which strongly signal to developers where new measures are needed, and can help facilitate prioritization of funding for measure development.
For example, the safety family of measures contains 9 topic areas and 22 subtopic areas. The topic areas include but are not limited to reducing healthcare-acquired infections and obstetrical adverse events and increasing procedural safety. Examples of specific gaps in the safety family of measures include post-discharge follow-up of infections in ambulatory settings, ventilator-associated events with special considerations for the pediatric population, and infection measures reported as rates rather than ratios, which would be more meaningful to consumers. The 55 measures selected for the safety family of measures follow themes such as creating a culture of safety, patient and caregiver
Although the advantages of measure alignment are many, few studies have systematically examined this phenomenon. A 2011 RAND study of 75 diverse organizations found that nearly all used NQF-endorsed measures, although there was considerable variability in which measures were used and for what purposes. Most used NQF-endorsed measures in quality improvement programs, followed closely by use in public reporting and then payment programs. The 2011 study also found that the organizations surveyed indicated a strong preference for NQF-endorsed measures where they exist because they are vetted, evidence-based, and known to be more credible with providers.
In 2011 and 2012, NQF conducted initial research outside of the HHS contract to better understand which organizations are using NQF-endorsed measures and where there is alignment across sectors with respect to that use.
The 2012 analysis showed that 86 percent of the 706 NQF-endorsed measures were in use, with the balance of the portfolio not in use largely consisting of measures recently endorsed (last 1–3 years) and expected to be used in the near future. Federal use of the NQF portfolio was stable at about 50 percent. Private payer use of the NQF portfolio grew from 21 percent to 35 percent during this period; state use grew from 21 percent to 23 percent. Much of the increase in private payer use is likely attributable to better data collection by NQF, rather than increased use of NQF-endorsed measures by private payers.
The federal government, private plans, and states appear to be increasingly using the same NQF-endorsed measures. In 2012, the federal government and private payers used the same 76 measures in accountability programs, or 13 percent of the 606 NQF-endorsed measures in use. During the same period, federal and state alignment was 48 measures, or 8 percent, and private payer and state alignment was 51 measures, or 8 percent. In 2012, 25 measures were simultaneously used by the federal government, private payers, and states. When all users are taken into account (including local communities, registries and others users), about 29 percent of the NQF-endorsed portfolio was used by two or more stakeholders in 2012.
Given the number and diversity of community-based efforts, it is challenging to get a comprehensive sense of how standardized measures are being used at the local, state, or regional levels. That said, the number of regional multi-stakeholder collaboratives or alliances that are collecting, reporting, and in some cases paying on the basis of performance measures appears to have grown over the past number of years. As of October 2012, the Robert Wood Johnson Foundation has cataloged on its Web site a compendium of nearly 260 state, local, or regional efforts to publicly report on healthcare performance across the United States.
To better understand the public-reporting activities in a subset of these community-based groups, NQF analyzed the measure use of 16 alliances that receive funding from the Robert Wood Johnson Foundation through the Aligning Forces for Quality (AF4Q) program. This analysis showed that these alliances are using 171 NQF-endorsed measures in their reports to the public, and it provided insight to NQF as to the kinds of tools and capabilities communities are seeking as they evolve measurement efforts on the local level.
Supported by the Robert Wood Johnson Foundation, NQF has developed tools outside of the HHS contracts to support local, state, and regional leaders interested in using NQF-endorsed measures, particularly those measures also used in federal programs. For example, NQF's publicly available Quality Positioning System (QPS) enables users to search a database of NQF-endorsed measures and to build a portfolio or custom list of NQF-endorsed measures that they use or in which they are interested. A QPS user can then compare that portfolio against measures used in federal and other national programs, aligning measurement efforts where it makes sense to do so. A QPS user also can share its portfolio with others by self-publishing it within QPS on the NQF Web site. This feature and the ability to discern which NQF-endorsed measures are being used in federal programs can provide a rich information base to help communities, states, and the federal government synchronize their approaches to measuring and improving quality.
Performance measurement science has made important strides in the last decade, including addressing new settings and types of providers, becoming more responsive to the needs and preferences of varied stakeholders, evolving with new technology, and increasingly addressing hard-to-measure concepts such as care coordination and appropriateness. Despite these gains, measurement gaps persist, either because the measures have not yet been developed, or the measures exist but are not being used.
To identify measurement gaps, NQF conducted an extensive analysis in 2012 of its current measures portfolio against both the National Quality Strategy priority areas and high-impact conditions (both Medicare and child health) as required by statute (Social Security Act, section 1890(b)(5)(iv)), analyzed stakeholder feedback, and considered which NQF-endorsed measures were being used and by which sector. The gaps identified below, however, do need to be viewed in the context of rising concern about measurement overload and administrative burden. While more measures are needed to address high-priority issues, NQF continues to remove measures that no longer meet its criteria or where performance “tops out” to ensure measurement parsimony.
Captured in the 2012 NQF Measure Gap Analysis, this report revealed that discussions of measure gaps too often remain at a high conceptual level, and that more detailed information is needed to inform next steps, whether those steps entail measure development or addressing barriers to implementation of existing measures. In addition, while there may be non-NQF endorsed measures currently in use that address high-priority gap areas, a full assessment of their applicability and appropriateness was beyond the scope of this project. Such measures should be brought forth for NQF endorsement to assess their importance, scientific reliability and validity, usability, and feasibility before an assessment of value or recommendations for use can be made. The following are high-level syntheses of the measure gaps identified through the NQF analysis, presented through the lens of the three aims of the NQS.
The lion's share of current NQF-endorsed measures related to better care focused on specific conditions. Addressing the gaps identified below would provide added input directly from patients about their care and could further focus the healthcare system on the needs and preferences of patients and families, including the most vulnerable patients.
Patient-reported outcomes (PROs)—To fully assess the quality and safety of healthcare, the gap analysis emphasized the importance of patient-reported outcomes—any report of the patient's health status that comes directly from the patient, without interpretation by a clinician or anyone else. Domains for measurement include symptoms and symptom burden, health-related quality of life including functional status, experience with care, and health-related behaviors. Especially important are PRO-based performance measures that can be aggregated accurately and reliably to the level of an accountable healthcare entity, and that span the full continuum of care.
Patient-centered care and shared decision-making—To spur the healthcare system to be more responsive to patients and families, measures are needed that assess whether patient and family treatment preferences are identified; whether their psychosocial, cultural, spiritual, or healthcare literacy needs are addressed; whether they are actively engaged in developing a care plan; and whether their expressed preferences and goals for care are met. Measures of decision quality are critical for assessing whether patients understand evidence-based treatment options and whether they are able to make decisions based on information provided by their healthcare practitioner.
Care coordination and care transitions—Important outcome measures are needed to assess whether patients, families, and caregivers believe that the overall care coordination process—including the quality of communication, care planning, care transitions, and team-based care—satisfactorily prepared them to manage their care and return to the best possible quality of life. The timeliness of access to high-quality palliative care or hospice services, including pain and symptom management, psychosocial support, and advance care planning also is identified as a gap area in need of further attention. Measure gaps related to effective medication management and patient adherence, and adverse drug events remain.
Care for vulnerable populations—A critical gap area to be filled includes the ability to measure whether high-quality care is available to patients most in need, particularly the vulnerable elderly, individuals with multiple chronic conditions and complex care needs, critically ill patients, patients receiving end-of-life care, children with special needs, residents in long-term care settings, the homeless, and people who are dually eligible for Medicare and Medicaid.
Recognizing that the health of the American public is mostly attributable to healthy life style behaviors, environment, or social status, the following gap areas push the field beyond the traditional boundaries of the healthcare delivery system and offer the potential for dramatic gains in health for the nation.
Health and well-being—Measures within and outside of the healthcare system are needed to assess health-related quality of life and to optimize the population's well-being. Measures that assess the burden of illness experienced by patients, families, and caregivers, as well as measures of productivity also are important. Community indices that measure key factors or social determinants known to significantly influence health or drive unnecessary utilization of healthcare services are needed to develop community programs that effectively and appropriately target resources and interventions to improve population health and reduce disparities.
Preventive care—Composite measures of the highest impact age- and sex-appropriate clinical preventive services, particularly for the cardiovascular disease priority area, continue to be important measure gaps to fill. Oral health was highlighted as an important area in need of measures, specifically for the prevention of dental caries, as were coordination of long-term support services and psychosocial, behavioral health, spiritual, and cultural services. An emerging area of focus for measurement is on the extent to which care is coordinated beyond the healthcare delivery system—particularly between healthcare, public health, and community support services—and how individual organizations are held collectively accountable.
Childhood measures—Measure gaps for child and adolescent health emphasized the attainment of developmental milestones, the quality of adolescent well-care visits, prevention of accidents and injuries, and prevention of risky behaviors. There also is a heightened need for measures of childhood obesity in addition to body mass index for more effective upstream management, given the risk for development of diabetes, cardiovascular disease, and other chronic conditions.
Affordability is often narrowly construed. The following identification of gaps broadens its definition so that affordability is viewed through a variety of lenses including the individual and society, for example, out-of-pocket costs to patients and families and costs to the healthcare system. Further, a commitment to ensuring access to affordable, high quality care for all necessitates judicious use of resources at the individual level.
Access to care—In addition to measures that assess insurance coverage, the analysis revealed that measure gaps indicative of access to needed care are important to address. Important considerations include the ability to obtain medications, mental health, oral health, and specialty services in a timely fashion. Measures also are needed to assess disparities in access and affordability, particularly with regard to socioeconomic status, race, and ethnicity, and for vulnerable populations.
Healthcare affordability—Many stakeholders emphasize the need for affordability indices that reflect the burden of healthcare costs on consumers and that include direct costs (e.g., out-of-pocket expenses, personal healthcare expenditures per capita) as well as indirect opportunity costs (e.g., productivity, work and school absenteeism, and the “cost of neglect” of medical and dental care). Efficiency measures are needed to benchmark providers on cost and quality as well as to quantify the impact of inefficiencies across care settings to further target quality improvement efforts. Purchasers and consumers continue to emphasize the importance of understanding pricing and improved transparency of data through standardized measurement and reporting.
Waste and overuse—Measures that assess the extent to which the healthcare system promotes the provision of medical, surgical, and diagnostic services that offer little if any value—and that may be harmful to patients—are critical to closing gaps in variation. Specific areas frequently cited as important for measurement include appropriate, patient-centered and patient-directed end-of-life care; unnecessary emergency department visits and hospital admissions and readmissions (particularly for ambulatory-sensitive conditions); inappropriate medication use and polypharmacy; and duplication of or inappropriate services and testing, particularly imaging.
Although the NQF portfolio increasingly maps to the NQS, its extent varies across each of the six NQS priorities. For example, 40 percent of NQF measures that map to the NQS at the goal level address patient safety, including a wide range of measures related to healthcare-acquired conditions and hospital readmissions. Yet only 7 percent of measures that map at the goal level address patient and family engagement, with very few measures to address important areas of shared decision making, patient navigation, and patient self-management. Likewise, measures to address healthy lifestyle behaviors and community interventions to prevent cardiovascular disease upstream also warrant increased attention. Specific measures of cost remain a high-priority gap area, particularly for purchasers of healthcare.
NQF's portfolio includes more than 400 condition-specific measures, more than 250 of which address the high-impact Medicare conditions. Yet only 53 of the measures address the specific high-impact child health conditions, and 12 of the high-impact child health conditions do not have any specific endorsed measures. While the lack of measures for certain conditions may be of interest or concern, future measure development should be prioritized to focus on cross-cutting measures that apply to patients regardless of their disease process.
The federal government remains the predominant user of NQF-endorsed measures, but a growing number of measures are in use across other public-sector programs—including state and local programs—as well as in the private sector. More promising is the emerging overlap in measure use across these sectors. Further alignment—or use of the same measures—offers the potential to significantly reduce measurement burden and to simultaneously accelerate improvement by sending consistent signals about what is important for providers to focus care improvement resources against.
Overall, 64 measures in the NQF portfolio that address specific NQS goals are in concurrent use in federal programs and two or more private programs. While the majority of these are safety-related measures, a small
As the field—the public and private stakeholders committed to building a solid foundation for quality improvement—strives to continually advance the use of standardized performance measurement, there is a strong desire to accelerate efforts to fill, rather than just identify, key measurement gaps. This will require making better use of the measures already available for key priority areas and investing wisely in measure development and endorsement activities to fill the most critical gap areas.
NQF has evolved in the dozen years it has been in existence and since it endorsed its first performance measures a decade ago. While its focus on improving quality, enhancing safety, and reducing costs by endorsing performance measures has remained a constant, its role has expanded to include a significant emphasis on getting the various stakeholder groups to align with respect to their use of performance measures and related improvement efforts. Experience has made it clear that sector-by-sector approaches to enhancing healthcare performance are ineffective in our decentralized and complex healthcare system, and they waste precious healthcare resources and may even do harm.
Looking ahead, NQF will work together with HHS and the broader quality movement to:
• Deepen the alignment between the public and private sectors and across stakeholder groups to accelerate progress and reduce burden: This relates to measure endorsement and the work of NQF-convened partnerships and is a core, enduring value of the organization;
• Focus more on “end user” needs and engagement: NQF will enlarge its current collaborative efforts to better incorporate the perspectives and values of those at the local level and those on the sharp end of healthcare—who ultimately are integrating the needs of the delivery system with those who receive and pay for care. Starting with the preferences of the end user in mind and systematically collecting user feedback about the efficacy of measures are ways to engage communities, providers, and other users in the collective goal of improving healthcare value.
• Take a more proactive approach to coordinate the measures pipeline and remake measure review and endorsement so it is more nimble: NQF will not only identify measure gaps but engage developers in filling them so that their efforts are streamlined and avoid duplication. Simultaneously, NQF plans to set up standing committees so that measures can more readily be reviewed.
• Review and endorse “next generation” quality measures that put the patient first: A key priority is endorsing next-generation measures that are more meaningful to patients and families and that help track patient outcomes across healthcare settings. NQF is committed to moving our nation's healthcare system to be ever more responsive to patient preferences and values and believes that richer information can play a crucial role;
• Increase the focus on measures that can enhance value: Affordability and its relationship to quality will become a focal point and better integrated into NQF's future work, starting with defining the many aspects of affordability and prioritizing near and longer term areas of focus going forward. Given the embryonic stage of affordability measures overall, there is much upfront conceptual work to be done that will rely on getting broad-based and varied input in order to gain a deeper appreciation for how to further measurement in the areas of costs, appropriateness, and resource use and how to pair such measures with quality metrics in order to assess value.
NQF is embarking on an exciting agenda that emphasizes enhanced alignment and collaboration so as to better integrate end user needs—all with an eye on evolving our measure portfolio so that it drives the healthcare system toward both delivering higher value healthcare and incorporating the needs and preferences of patients, payers, and purchasers. The goals are clear, and the collective work of the 800 plus individuals who collaborate with NQF are focused on efforts to benefit the U.S. healthcare system and the patients it serves.
Despite the hard work of many, there is broad recognition that our healthcare system can do a better job on quality, safety, and affordability. This reality, in the context of a cost-conscious economy, has re-energized a national commitment to simultaneously improve care and responsibly constrain healthcare costs. State leaders, local governments, a broad swath of federal healthcare agencies, and an increasing number of other public- and private-sector organizations that constitute the quality movement are at the center of that resurgence. NQF is a public service organization that helps unite all of these organizations in their pursuit to make healthcare better, safer, and affordable.
Established in 1999 as the standard-setting organization for healthcare performance measures, NQF today has a much-broadened mission to:
• Build consensus on national priorities and goals for performance improvement, and work in partnership with the public and private sectors to achieve them.
• Endorse and maintain best-in-class standards for measuring and publicly reporting on healthcare performance quality.
• Promote the attainment of national healthcare improvement goals and the use of standardized measures through education and outreach programs.
NQF is recognized as a voluntary consensus standard-setting organization under the National Technology Transfer and Advancement Act of 1995. Its process for reaching consensus adheres to the Office of Management and Budget's formal definition of consensus.
The NQF Board of Directors governs the organization and is composed of 31 voting members—key public- and private-sector leaders who represent major stakeholders in America's healthcare system. Consumers and those who purchase healthcare hold a simple majority of the at-large seats (see Appendix B). In 2012, NQF convened more than 800 hundred experts across every stakeholder group who contributed their time, experience, and insights to measure-review, measure-selection, and priority-setting committees (see Appendix E).
In recent years as part of a close working partnership with HHS, the
To be NQF endorsed, a measure must capture a process or outcome that is important to measure and report, be scientifically acceptable, be feasible to collect, and provide useful results. NQF conducts an eight-step, consensus-based process for reviewing measures and other standards; this process has been continually improved over a decade, and is as follows:
1. Call for Nominations allows anyone to suggest a candidate for the committee that will oversee the project. Committees are diverse, often encompassing experts in a particular field, providers, scientists, and consumers. After selection, NQF posts committee rosters on its Web site to solicit public comments on the composition of the panel and makes adjustments as needed to ensure balanced representation.
2. Call for Measures starts a 30-day period for developers to submit a measure or practice through NQF's online submission forms.
3. Steering Committee Review puts submitted measures to a four-part test to ensure they reflect sound science, will be useful to providers and patients, and will make a difference in improving quality. The expert steering committee conducts this detailed review in open sessions, each of which starts a limited period for public comment.
4. Public Comment solicits input from anyone who wishes to respond to a draft report that outlines the steering committee's assessment of measures for possible endorsement. The steering committee may request a revision to the proposed measures.
5. Member Vote asks NQF members to review the draft report and cast their votes on the endorsement of measures.
6. CSAC Review marks the point at which the NQF Consensus Standards Approval Committee (CSAC) deliberates on the merits of the measure and the issues raised during the review process, and makes a recommendation on endorsement to the Board of Directors. The CSAC includes consumers, purchasers, healthcare professionals, and others. It provides the big picture to ensure that standards are being consistently assessed from project to project.
7. Board Ratification asks for review and ratification by the NQF Board of Directors of measures recommended for endorsement.
8. Appeal opens a period when anyone can appeal the Board's decision.
Review committees comprise multiple stakeholders; consumer organizations and individual patients are equal partners with clinicians and other stakeholders throughout the process. There is a strong commitment to transparency: NQF invites public participation at every step, ranging from nominations for committees to comments and votes on specific measures. Endorsed measures are re-evaluated every three years to ensure their continuing relevance with current science and their actual use and usefulness in the field, and to determine whether they continue to represent the best in class compared to new measures. At any time, NQF can also conduct an ad hoc review of a measure if there is evidence of unintended consequences related to measurement or emerging clinical evidence that should result in a change to the measure.
Measures included in the NQF portfolio are developed and maintained by about 65 different organizations including the Centers for Medicare and Medicaid Services (CMS), the National Committee for Quality Assurance (NCQA), the Physician Consortium for Performance Improvement, convened by the American Medical Association (AMA–PCPI), Ingenix, The Joint Commission, American College of Surgeons (ACS), Bridges to Excellence, Cleveland Clinic, Minnesota Community Measurement, and Pharmacy Quality Alliance.
Many public- and private-sector leaders contributed to developing NQF's multi-stakeholder consensus process in the measure-endorsement realm. In recognition of this unique public service, HHS is required under statute to contract with a consensus-based entity, and contracted with NQF to convene diverse stakeholder groups to advise the public sector on priorities for healthcare improvement, related implementation strategies, and selection of measures to both drive these strategies and gauge results. The NQF-convened NPP and MAP and their published reports are tangible outcomes of this work. An equally important outcome of these partnerships is the ongoing alignment across stakeholder groups and across public- and private-sector leaders about which levers are most powerful in both improving healthcare performance and making the delivery system more patient centered.
NQF was initially funded primarily through grants from major philanthropic foundations, including the Robert Wood Johnson Foundation and the Commonwealth Fund. NQF in turn built a strong membership base across all those who care about advancing healthcare quality; membership dues continue to provide annual funding for NQF's work.
In 2012, NQF received $4.43 million a year in membership dues, an amount equaling 18 percent of its total budget. When combined with private foundation funding, 23 percent of NQF's budget comes from the private sector, with the remainder of its funding stemming from the public sector. In addition, the value of uncompensated donated time in 2012—some 55,000 hours of work done on a volunteer basis by healthcare leaders and experts—is conservatively estimated to equal another $4 million in private funding for NQF's work. Scaling up NQF's capacity became a necessity when the public sector, in its role as the largest American healthcare purchaser, made a serious commitment to buying healthcare based on value. This policy direction immediately generated the need for a more sustainable, steady resource that stood ready to regularly review and endorse performance measures.
NQF has been fortunate to have received support from the federal government for more than 10 years, particularly since 2008 when federal leaders strongly committed themselves
• MIPPA has provided NQF with $10 million annually over a four-year period starting in 2009, which was extended for FY 2013 by HR8 (PL 112–240). These funds—awarded to NQF through a competitive process—support the organization's efforts to identify priority areas for improvement, endorse and update related performance measures, foster the transition to an electronic environment, and report annually to Congress on the status and progress to date of this effort.
ACA has provided NQF with support of about $10 million annually, starting in 2011. Under Section 3014, Congress directed HHS to contract with “the consensus-based entity under contract” to provide multi-stakeholder input into the NQS, as well as input to the Secretary of HHS on the selection of measures for use in various quality programs that utilize the federal rulemaking process for measure selection.
This 2013 Annual Report describes NQF's work in 2012 to fulfill the requirements specified in section 1890 of the Social Security Act. This section of the Social Security Act requires the Secretary of the Department of Health and Human Services to “have in effect a contract with a consensus-based entity, such as the National Quality Forum,” to perform certain duties including those related to performance measurement and NQS priorities. The Social Security Act also requires by not later than March 1 of each year (beginning with 2009), that the CBE shall submit to Congress and the Secretary of the Department of Health and Human Services a report containing a description of:
(i) Implementation of quality and efficiency measurement initiatives under the Social Security Act and the coordination of such initiatives with quality and efficiency initiatives implemented by other payers;
(ii) recommendations on an integrated national strategy and priorities for health care performance measurement;
(iii) performance of its duties required under its contract with HHS;
(iv) gaps in endorsed quality and efficiency measures, and where quality and efficiency measures are unavailable or inadequate to identify or address such gaps;
(v) areas in which evidence is insufficient to support endorsement of quality and efficiency measures in priority areas identified by the Secretary under the national strategy and where targeted research may address such gaps; and
(vi) convening multi-stakeholder groups to provide input on: 1) The selection of quality and efficiency measures for use in various Medicare programs, in reporting performance information to the public; and in other health care programs; and 2) national priorities for improvement in population health and the delivery of health care services for consideration under the national quality strategy.
This 2013 report fulfills the statutory requirement for the annual report described above and describes the results of work that NQF, as the CBE, undertook in 2012.
For example, in 2012, NQF managed its portfolio of more than 700 endorsed measures by replacing some measures with improved measures; removing measures that were no longer effective or where the evidence base had evolved; and expanding the portfolio to address well-recognized measurement gaps. NQF reviewed 430 submitted measures and endorsed 301 of them. This set included 81 new measures and 220 measures that maintained their endorsement after being considered in light of new evidence and/or against new competing measures submitted to NQF for consideration. The newly endorsed measures align with needs identified in the NQS and address several critical areas, including patient outcomes, underserved populations, healthcare disparities, and hospital readmissions.
In 2012, NQF's National Priorities Partnership (NPP), a collaborative public-private partnership, focused on how to advance patient safety by aligning its work with HHS' “Partnership for Patients” initiative. Through a series of web-based and in-person meetings, nearly 2,700 participants from multiple sectors learned about and shared new improvement approaches, information, tools, and professional connections to improve health care safety. The NPP also developed action plans to focus a range of national and local organizations in diverse sectors on how to align efforts to reduce preventable readmissions and improve maternity care, and created a web-based “action registry” to track improvement activities focused on readmissions and maternity care to enable learning across participants. Launched in the fourth quarter of 2012, by March 2013, the registry housed over 50 actions by 30 different organizations.
In 2012, NQF also continued its work to facilitate the electronic reporting of quality measures using electronic health records (EHRs) that health care providers across the nation are adopting. NQF's work on these “eMeasures” included standardizing data elements so the same quality of care information can be collected from different EHRs. NQF also convened an eMeasure Learning Collaborative to help multiple parties address barriers to developing and implementing eMeasures.
NQF's Measure Applications Partnership (MAP) provided multi-stakeholder input to HHS about the potential use of quality measures in more than 17 different Medicare quality reporting and performance programs and the Medicare and Medicaid Electronic Health Record (EHR) Incentive Program. This input was critical to HHS programs. At the same time, MAP released its Families of Measures report, which defined measure families in four key areas—safety, care coordination, cardiovascular, and diabetes care—with the goal of promoting more cohesion and integration of care regardless of setting, provider, level of care intensity, or timing of care.
In 2012, NQF also conducted an analysis of its current measures portfolio against both the NQS priority areas and high-impact Medicare and child health conditions. This analysis found that while many NQF measures address patient safety, fewer measures address patient and family engagement. For example, measures of shared decision-making, patient navigation and self-management, healthy lifestyle behaviors, community interventions to improve health, and access, cost, and resource use are significantly less prevalent than safety measures. The analysis also found gaps in measures of preventive care, patient-reported outcomes (particularly quality of life and functional status), appropriateness (particularly for specialty care), access to timely palliative care, and health and healthcare disparities. Additionally, the analysis revealed the need for better population-level measures to assess improvements in health and healthcare. And, while certain high-impact conditions common to adults have an abundance of measures—e.g., cardiovascular disease, end-stage renal disease, and diabetes—many of the high-impact childhood conditions have few or no NQF-endorsed measures.
These and the other activities described in the Annual Report reflect the wide scope of work required for sound measurement of health care quality—and the accompanying hard work needed for the continued improvement of health care. HHS thanks NQF for its hard work and submission of this report.
The work reflected in this annual report was produced under HHS' initial four-year contract to NQF which was executed in 2009 and will expire in 2013.
To continue to fulfill the statutory requirement for a contract with a consensus-based entity, HHS competitively procured a new contract with NQF in September 2012. Through this new contract, NQF will continue to perform the statutory activities for the CBE described above in support of HHS' efforts to achieve the aims of the NQS— better care, healthier people and communities, and affordable care.
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35)
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice updates the prospective payment rates for Medicare inpatient hospital services provided by inpatient psychiatric facilities (IPFs). These changes are applicable to IPF discharges occurring during the fiscal year (FY) beginning October 1, 2013 through September 30, 2014.
Dorothy Myrick or Jana Lindquist, (410) 786–4533, for general information. Hudson Osgood, (410) 786–7897 or Bridget Dickensheets, (410) 786–8670, for information regarding the market basket and labor-related share. Theresa Bean, (410) 786–2287, for information regarding the regulatory impact analysis.
To assist readers in referencing sections contained in this document, we are providing the following table of contents.
Addenda
Because of the many terms to which we refer by acronym in this notice, we are listing the acronyms used and their corresponding meanings in alphabetical order below:
BBRA Medicare, Medicaid and SCHIP [State Children's Health Insurance Program] Balanced Budget Refinement Act of 1999, (Pub. L. 106–113)
This notice updates the prospective payment rates for Medicare inpatient hospital services provided by inpatient psychiatric facilitates for discharges occurring during the fiscal year (FY) beginning October 1, 2013 through September 30, 2014.
In this notice, we update the IPF PPS, as specified in 42 CFR 412.428. The updates include the following:
• The FY 2008-based Rehabilitation, Psychiatric, and Long Term Care (RPL) market basket update of 2.6 percent adjusted by a 0.1 percentage point reduction as required by section 1886(s)(2)(A)(ii) of the Social Security Act (the Act) and a 0.5 percentage point reduction for economy-wide productivity as required by 1886(s)(2)(A)(i) of the Act.
• The fixed dollar loss threshold amount in order to maintain the appropriate outlier percentage.
• The electroconvulsive therapy payment by a factor specified by CMS.
• The national urban and rural cost-to-charge ratio medians and ceilings.
• The cost of living adjustment factors for IPFs located in Alaska and Hawaii, if appropriate.
• Description of the ICD–9–CM and MS–DRG classification changes discussed in the annual update to the hospital inpatient PPS regulations.
• Use of the best available hospital wage index and information regarding whether an adjustment to the Federal per diem base rate is needed to maintain budget neutrality.
• The MS–DRG listing and comorbidity categories to reflect the ICD–9–CM revisions effective October 1, 2013.
• Retaining the 17 percent adjustment for IPFs located in rural areas, the 1.31 adjustment factor for IPFs with a qualifying emergency department, the coefficient value of 0.5150 for the teaching adjustment to the Federal per diem rate, the MS–DRG adjustment factors and comorbidity adjustment factors currently being paid to IPFs for FY 2013.
In November 2004, we implemented the inpatient psychiatric facilities (IPF) prospective payment system (PPS) in a final rule that appeared in the November 15, 2004
In that final rule, we explained that we believe it is important to delay updating the adjustment factors derived from the regression analysis until we have IPF PPS data that include as much information as possible regarding the patient-level characteristics of the population that each IPF serves. Therefore, we indicated that we did not intend to update the regression analysis and recalculate the Federal per diem base rate and the patient-and facility-level adjustments until we complete that analysis. Until that analysis is complete, we stated our intention to publish a notice in the
Updates to the IPF PPS, as specified in 42 CFR § 412.428, include the following:
• A description of the methodology and data used to calculate the updated Federal per diem base payment amount.
• The rate of increase factor as described in § 412.424(a)(2)(iii), which is based on the Excluded Hospital with Capital market basket under the update methodology of section 1886(b)(3)(B)(ii) of the Act for each year (effective from the implementation period until June 30, 2006).
• For discharges occurring on or after July 1, 2006, the rate of increase factor for the Federal portion of the IPF's payment, which is based on the Rehabilitation, Psychiatric, and Long-Term Care (RPL) market basket.
• The best available hospital wage index and information regarding whether an adjustment to the Federal per diem base rate is needed to maintain budget neutrality.
• Updates to the fixed dollar loss threshold amount in order to maintain the appropriate outlier percentage.
• Description of the International Classification of Diseases, 9th Revision, Clinical Modification (ICD–9–CM) coding and diagnosis-related groups (DRGs) classification changes discussed in the annual update to the hospital inpatient prospective payment system (IPPS) regulations.
• Update to the electroconvulsive therapy (ECT) payment by a factor specified by CMS.
• Update to the national urban and rural cost-to-charge ratio medians and ceilings.
• Update to the cost of living adjustment factors for IPFs located in Alaska and Hawaii, if appropriate.
Our most recent IPF PPS annual update occurred in the August 7, 2012
Since implementation of the IPF PPS, we have explained that we believe it is important to delay updating the adjustment factors derived from the regression analysis until we have IPF PPS data that include as much information as possible regarding the patient-level characteristics of the population that each IPF serves. Because we are now approximately 8 years into the system, we believe that we have enough data to begin that process. Therefore, we have begun the necessary analysis to make future refinements. While we do not propose to make refinements in this notice, as explained in section V.D.3 below, we expect that in future rulemaking, for FY 2015, we will be ready to propose potential refinements.
Section 124 of the Medicare, Medicaid, and SCHIP (State Children's Health Insurance Program) Balanced Budget Refinement Act of 1999 (BBRA) (Pub. L. 106–113) required the establishment and implementation of an IPF PPS. Specifically, section 124 of the BBRA mandated that the Secretary develop a per diem PPS for inpatient hospital services furnished in psychiatric hospitals and psychiatric units including an adequate patient classification system that reflects the differences in patient resource use and costs among psychiatric hospitals and psychiatric units.
Section 405(g)(2) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108–173) extended the IPF PPS to distinct part psychiatric units of critical access hospitals (CAHs).
Section 3401(f) of the Patient Protection and Affordable Care Act (Pub. L. 111–148) as amended by section 10319(e) of that Act and by section 1105(d) of the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111–152) (hereafter referred to as “the Affordable Care Act”) added subsection (s) to section 1886 of the Act.
Section 1886(s)(1) is titled “Reference to Establishment and Implementation of System” and it refers to section 124 of the Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999, which relates to the establishment of the IPF PPS.
Section 1886(s)(2)(A)(i) of the Act requires the application of the productivity adjustment described in section 1886(b)(3)(B)(xi)(II) of the Act to the IPF PPS for the RY beginning in 2012 (that is, a RY that coincides with a FY) and each subsequent RY. For the RY beginning in 2013 (that is, FY 2014), the productivity adjustment is equal to 0.5 percentage point, which we are implementing in this notice. Section 1886(s)(2)(A)(ii) of the Act requires the application of an “other adjustment” that reduces any update to an IPF PPS base rate by percentages specified in section 1886(s)(3) of the Act for the RY beginning in 2010 through the RY beginning in 2019. For the RY beginning in 2013 (that is, FY 2014), section 1886(s)(3)(B) of the Act requires the reduction to be 0.1 percentage point. We are implementing that provision in this FY 2014 IPF PPS notice.
Section 1886(s)(4) of the Act requires the establishment of a quality data reporting program for the IPF PPS beginning in RY 2014. We proposed and finalized new requirements for quality reporting for IPFs in the “Hospital Inpatient Prospective Payment System for Acute Care Hospitals and the Long Term Care Hospital Prospective Payment System and Fiscal Year 2013 Rates” proposed rule (May 11, 2012) (77 FR 27870, 28105 through 28116) and final rule (August 31, 2012) (77 FR 53258, 53644 through 53360).
To implement and periodically update these provisions, we have published various proposed and final rules in the
The November 2004 IPF PPS final rule (69 FR 66922) established the IPF PPS, as authorized under section 124 of the BBRA and codified at subpart N of part 412 of the Medicare regulations. The November 2004 IPF PPS final rule set forth the per diem Federal rates for the implementation year (the 18-month period from January 1, 2005 through June 30, 2006), and it provided payment for the inpatient operating and capital costs to IPFs for covered psychiatric services they furnish (that is, routine, ancillary, and capital costs, but not costs of approved educational activities, bad debts, and other services or items that are outside the scope of the IPF PPS). Covered psychiatric services include services for which benefits are provided under the fee-for-service Part A (Hospital Insurance Program) Medicare program.
The IPF PPS established the Federal per diem base rate for each patient day in an IPF derived from the national average daily routine operating, ancillary, and capital costs in IPFs in FY 2002. The average per diem cost was updated to the midpoint of the first year under the IPF PPS, standardized to account for the overall positive effects of the IPF PPS payment adjustments, and adjusted for budget neutrality.
The Federal per diem payment under the IPF PPS is comprised of the Federal per diem base rate described above and certain patient- and facility-level payment adjustments that were found in the regression analysis to be associated with statistically significant per diem cost differences.
The patient-level adjustments include age, DRG assignment, comorbidities, and variable per diem adjustments to reflect higher per diem costs in the early days of an IPF stay. Facility-level adjustments include adjustments for the IPF's wage index, rural location, teaching status, a cost of living adjustment for IPFs located in Alaska and Hawaii, and presence of a qualifying emergency department (ED).
The IPF PPS provides additional payment policies for: Outlier cases; stop-loss protection (which was applicable only during the IPF PPS transition period); interrupted stays; and a per treatment adjustment for patients who undergo ECT.
A complete discussion of the regression analysis appears in the November 2004 IPF PPS final rule (69 FR 66933 through 66936).
Section 124 of BBRA did not specify an annual update rate strategy for the IPF PPS and was broadly written to give the Secretary discretion in establishing an update methodology. Therefore, in the November 2004 IPF PPS final rule, we implemented the IPF PPS using the following update strategy:
• Calculate the final Federal per diem base rate to be budget neutral for the 18-month period of January 1, 2005 through June 30, 2006.
• Use a July 1 through June 30 annual update cycle.
• Allow the IPF PPS first update to be effective for discharges on or after July 1, 2006 through June 30, 2007.
In the November 2004 IPF PPS final rule, we provided for a 3-year transition period. During this 3-year transition period, an IPF's total payment under the PPS was based on an increasing percentage of the Federal rate with a corresponding decreasing percentage of the IPF PPS payment that was based on reasonable cost concepts. However, effective for cost reporting periods beginning on or after January 1, 2008, IPF PPS payments were based on 100 percent of the Federal rate.
Prior to RY 2012, the IPF PPS was updated on a July 1st through June 30th annual update cycle. Effective with RY 2012, we switched the IPF PPS payment rate update from a rate year that begins on July 1st ending on June 30th to a period that coincides with a fiscal year. In order to transition from a RY to a FY, the IPF PPS RY 2012 covered a 15 month period from July 1st through September 30th. As proposed and finalized, after RY 2012, the rate update period for the IPF PPS payment rates and other policy changes begin on October 1 through September 30. Therefore, the update cycle for FY 2014 will be October 1, 2013 through September 30, 2014.
For further discussion of the 15-month market basket update for RY 2012 and changing the payment rate update period from a RY to a FY, we refer readers to the RY 2012 IPF PPS proposed rule (76 FR 4998) and the RY 2012 IPF PPS final rule (76 FR 26432).
The input price index (that is, the market basket) that was used to develop the IPF PPS was the Excluded Hospital with Capital market basket. This market basket was based on 1997 Medicare cost report data and included data for Medicare participating IPFs, inpatient rehabilitation facilities (IRFs), long-term care hospitals (LTCHs), cancer hospitals, and children's hospitals. Although “market basket” technically describes the mix of goods and services used in providing hospital care, this term is also commonly used to denote the input price index (that is, cost category weights and price proxies combined) derived from that market basket. Accordingly, the term “market basket” as used in this document refers to a hospital input price index.
Beginning with the May 2006 IPF PPS final rule (71 FR 27046 through 27054), IPF PPS payments were updated using a FY 2002-based market basket reflecting the operating and capital cost structures for IRFs, IPFs, and LTCHs (hereafter referred to as the Rehabilitation, Psychiatric, and Long-Term Care (RPL) market basket).
We excluded cancer and children's hospitals from the RPL market basket because these hospitals are not reimbursed through a PPS; rather, their payments are based entirely on reasonable costs subject to rate-of-increase limits established under the authority of section 1886(b) of the Act, which are implemented in regulations at § 413.40. Moreover, the FY 2002 cost structures for cancer and children's hospitals are noticeably different than the cost structures of the IRFs, IPFs, and LTCHs. A complete discussion of the FY 2002-based RPL market basket appears in the May 2006 IPF PPS final rule (71 FR 27046 through 27054).
In the May 1, 2009 IPF PPS notice (74 FR 20362), we expressed our interest in exploring the possibility of creating a stand-alone IPF market basket that reflects the cost structures of only IPF providers. We noted that, of the available options, one would be to join the Medicare cost report data from
We summarized the public comments received and our responses in the April 2010 IPF PPS notice (75 FR 23111 through 23113). Despite receiving comments from the public on this issue, we were unable to explain the observed differences in costs and cost structures between hospital-based and freestanding IPFs. Therefore, we did not believe it was appropriate, at the time, to incorporate data from hospital-based IPFs with those of freestanding IPFs to create a stand-alone IPF market basket.
In the RY 2012 IPF PPS proposed rule (76 FR 4998) and final rule (76 FR 26432), we proposed and finalized the use of a rebased and revised FY 2008-based RPL market basket to update IPF payments. In the RY 2012 IPF PPS proposed rule (76 FR 5001), we also welcomed public comment on the possibility of using a rehabilitation and psychiatric (RP) market basket to update IPF payments in the future. Comments received and our responses are summarized in the RY 2012 final rule (76 FR 26436).
We continue to explore the viability of creating separate market baskets from the current RPL market basket. In the FY 2013 IPPS/LTCH final rule (77 FR 53468 through 53476), we adopted the newly created FY 2009-based LTCH-specific market basket for use under the LTCH PPS beginning in FY 2013. We continue to investigate the use of an alternative market basket to update IPF PPS payments; however, for the FY 2014 IPF PPS update, we continue to use (as was done for the FY 2013 update) the percentage increase in the FY 2008-based RPL market basket to determine the IPF PPS market basket update. We still have concerns about cost differences between freestanding and hospital-based providers, which remain unexplained even when looking at more recent data. However, we remain interested in researching this topic further to determine if these data quality and representativeness concerns can be overcome, and have plans to conduct more analysis into the claims and cost data for IPFs. Any possible changes to the market basket used to update IPF payments would appear in a future rulemaking and be subject to public comment.
The FY 2014 update for the IPF PPS using the FY 2008-based RPL market basket and IHS Global Insight's second quarter 2013 forecast of the market basket components is 2.6 percent (prior to the application of any statutory adjustments). This includes increases in both the operating and the capital components for FY 2014 (that is, October 1, 2013 through September 30, 2014). IHS Global Insight, Inc. is a nationally recognized economic and financial forecasting firm that contracts with CMS to forecast the components of the market baskets.
As previously described in section I.B, section 1886(s)(2)(A)(i) of the Act requires the application of the productivity adjustment described in section 1886(b)(3)(B)(xi)(II) of the Act to the IPF PPS for the RY beginning in 2012 and each subsequent RY. The statute defines the productivity adjustment to be equal to the 10-year moving average of changes in annual economy-wide private nonfarm business multifactor productivity (MFP) (as projected by the Secretary for the 10-year period ending with the applicable FY, year, cost reporting period, or other annual period) (the “MFP adjustment”).
The Bureau of Labor Statistics (BLS) is the agency that publishes the official measure of private non-farm business MFP. We refer readers to the BLS Web site at
Due to variations in geographic wage levels and other labor-related costs, we believe that payment rates under the IPF PPS should continue to be adjusted by a geographic wage index, which would apply to the labor-related portion of the Federal per diem base rate (hereafter referred to as the labor-related share).
The labor-related share is determined by identifying the national average proportion of total costs that are related to, influenced by, or vary with the local labor market. We classify a cost category as labor-related if the costs are labor-intensive and vary with the local labor market. Based on our definition of the labor-related share, we include in the labor-related share the sum of the relative importance of Wages and Salaries, Employee Benefits, Professional Fees: Labor-related, Administrative and Business Support Services, All Other: Labor-related Services, and a portion of the Capital-Related cost weight.
Therefore, to determine the labor-related share for the IPF PPS for FY 2014, we used the FY 2008-based RPL market basket cost weights relative importance to determine the labor-related share for the IPF PPS. This estimate of the FY 2014 labor-related share is based on IHS Global Insight Inc.'s second quarter 2013 forecast, which is the same forecast used to derive the FY 2014 market basket update.
Table 1 below shows the FY 2014 relative importance labor-related share using the FY 2008-based RPL market basket along with the FY 2013 relative importance labor-related share.
The labor-related share for FY 2014 is the sum of the FY 2014 relative importance of each labor-related cost category, and would reflect the different rates of price change for these cost categories between the base year (FY 2008) and FY 2014. The sum of the relative importance for FY 2014 for operating costs (Wages and Salaries, Employee Benefits, Professional Fees: Labor-Related, Administrative and Business Support Services, and All Other: Labor-related Services) is 65.917 percent, as shown in Table 1 above. The portion of Capital-related cost that is influenced by the local labor market is estimated to be 46 percent. Since the relative importance for Capital-Related Costs is 7.776 percent of the FY 2008-based RPL market basket in FY 2014, we take 46 percent of 7.776 percent to determine the labor-related share of Capital-related cost for FY 2014. The result is 3.577 percent, which we add to 65.917 percent for the operating cost amount to determine the total labor-related share for FY 2014. Therefore, the labor-related share for the IPF PPS in FY 2014 is 69.494 percent. This labor-related share is determined using the same general methodology as employed in calculating all previous IPF labor-related shares (see, for example, 69 FR 66952 through 66953). The wage index and the labor-related share are reflected in budget neutrality adjustments.
The IPF PPS is based on a standardized Federal per diem base rate calculated from the IPF average per diem costs and adjusted for budget-neutrality in the implementation year. The Federal per diem base rate is used as the standard payment per day under the IPF PPS and is adjusted by the patient- and facility-level adjustments that are applicable to the IPF stay. A detailed explanation of how we calculated the average per diem cost appears in the November 2004 IPF PPS final rule (69 FR 66926).
Section 124(a)(1) of the BBRA required that we implement the IPF PPS in a budget neutral manner. In other words, the amount of total payments under the IPF PPS, including any payment adjustments, must be projected to be equal to the amount of total payments that would have been made if the IPF PPS were not implemented. Therefore, we calculated the budget-neutrality factor by setting the total estimated IPF PPS payments to be equal to the total estimated payments that would have been made under the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) (Pub. L. 97–248) methodology had the IPF PPS not been implemented.
Under the IPF PPS methodology, we calculated the final Federal per diem base rate to be budget neutral during the IPF PPS implementation period (that is, the 18-month period from January 1, 2005 through June 30, 2006) using a July 1 update cycle. We updated the average cost per day to the midpoint of the IPF PPS implementation period (that is, October 1, 2005), and this amount was used in the payment model to establish the budget-neutrality adjustment.
A step-by-step description of the methodology used to estimate payments under the TEFRA payment system appears in the November 2004 IPF PPS final rule (69 FR 66926).
In the November 2004 IPF PPS final rule, we describe how we standardized the IPF PPS Federal per diem base rate to account for the overall positive effects of the IPF PPS payment adjustment factors. To standardize the IPF PPS payments, we compared the IPF PPS payment amounts calculated from the FY 2002 Medicare Provider Analysis and Review (MedPAR) file to the projected TEFRA payments from the FY 2002 cost report file updated to the midpoint of the IPF PPS implementation period (that is, October 2005). The standardization factor was calculated by dividing total estimated payments under the TEFRA payment system by estimated payments under the IPF PPS. The standardization factor was calculated to be 0.8367.
As described in detail in the May 2006 IPF PPS final rule (71 FR 27045), in reviewing the methodology used to simulate the IPF PPS payments used for the November 2004 IPF PPS final rule, we discovered that due to a computer code error, total IPF PPS payments were underestimated by about 1.36 percent. Since the IPF PPS payment total should have been larger than the estimated figure, the standardization factor should have been smaller (0.8254 vs. 0.8367). In turn, the Federal per diem base rate and the ECT rate should have been reduced by 0.8254 instead of 0.8367.
To resolve this issue, in RY 2007, we amended the Federal per diem base rate and the ECT payment rate prospectively. Using the standardization factor of 0.8254, the average cost per day was effectively reduced by 17.46 percent (100 percent minus 82.54 percent = 17.46 percent).
To compute the budget neutrality adjustment for the IPF PPS, we separately identified each component of the adjustment, that is, the outlier adjustment, stop-loss adjustment, and behavioral offset.
A complete discussion of how we calculate each component of the budget neutrality adjustment appears in the November 2004 IPF PPS final rule (69 FR 66932 through 66933) and in the May 2006 IPF PPS final rule (71 FR 27044 through 27046).
Since the IPF PPS payment amount for each IPF includes applicable outlier amounts, we reduced the standardized Federal per diem base rate to account for aggregate IPF PPS payments estimated to be made as outlier payments. The outlier adjustment was calculated to be 2 percent. As a result, the standardized Federal per diem base rate was reduced by 2 percent to account for projected outlier payments.
As explained in the November 2004 IPF PPS final rule, we provided a stop-loss payment during the transition from cost-based reimbursement to the per diem payment system to ensure that an IPF's total PPS payments were no less than a minimum percentage of their TEFRA payment, had the IPF PPS not been implemented. We reduced the standardized Federal per diem base rate by the percentage of aggregate IPF PPS payments estimated to be made for stop-loss payments. As a result, the standardized Federal per diem base rate was reduced by 0.39 percent to account for stop-loss payments. Since the transition was completed in RY 2009, the stop-loss provision is no longer applicable, and for cost reporting periods beginning on or after January 1, 2008, IPFs were paid 100 percent PPS rates.
As explained in the November 2004 IPF PPS final rule, implementation of the IPF PPS may result in certain changes in IPF practices, especially with respect to coding for comorbid medical conditions. As a result, Medicare may make higher payments than assumed in our calculations. Accounting for these effects through an adjustment is commonly known as a behavioral offset.
Based on accepted actuarial practices and consistent with the assumptions made in other PPSs, we assumed in determining the behavioral offset that IPFs would regain 15 percent of potential “losses” and augment payment increases by 5 percent. We applied this actuarial assumption, which is based on our historical experience with new payment systems, to the estimated “losses” and “gains” among the IPFs. The behavioral offset for the IPF PPS was calculated to be 2.66 percent. As a result, we reduced the standardized Federal per diem base rate by 2.66 percent to account for behavioral changes. As indicated in the November 2004 IPF PPS final rule, we do not plan to change adjustment factors or projections until we analyze IPF PPS data.
If we find that an adjustment is warranted, the percent difference may be applied prospectively to the established PPS rates to ensure the rates accurately reflect the payment level. In conducting this analysis, we will be interested in the extent to which improved coding of patients' principal and other diagnoses, which may not reflect real increases in underlying resource demands, has occurred under the PPS.
As described in the November 2004 IPF PPS final rule (69 FR 66931), the average per diem cost was updated to the midpoint of the implementation year. This updated average per diem cost of $724.43 was reduced by—(1) 17.46 percent to account for standardization to projected TEFRA payments for the implementation period; (2) 2 percent to account for outlier payments; (3) 0.39 percent to account for stop-loss payments; and (4) 2.66 percent to account for the behavioral offset. The Federal per diem base rate in the implementation year was $575.95. The increase in the per diem base rate for RY 2009 included the 0.39 percent increase due to the removal of the stop-loss provision. We indicated in the November 2004 IPF PPS final rule (69 FR 66932) that we would remove this 0.39 percent reduction to the Federal per diem base rate after the transition. As discussed in section IV.D.2. of the May 2008 IPF PPS notice, we increased the Federal per diem base rate and the ECT base rate by 0.39 percent in RY 2009. Therefore for RY 2009 and beyond, the stop-loss provision has ended and is no longer a part of budget neutrality.
In accordance with section 1886(s)(2)(A)(ii) of the Act, which requires the application of an “other adjustment,” described in section 1886(s)(3) of the Act (specifically, section 1886(s)(3)(B)) for RYs 2013 and 2014 that reduces the update to the IPF PPS base rate for the FY beginning in Calendar Year (CY) 2013, we are adjusting the IPF PPS update by a 0.1 percentage point reduction for FY 2014. In addition, in accordance with section 1886(s)(2)(A)(i) of the Act, which requires the application of the productivity adjustment that reduces the update to the IPF PPS base rate for the FY beginning in CY 2013, we are adjusting the IPF PPS update by a 0.5 percentage point reduction for FY 2014.
For this notice, we are applying an annual update of 2.0 percent (that is the FY 2008-based RPL market basket increase for FY 2014 of 2.6 percent less the productivity adjustment of 0.5 percentage point less the 0.1 percentage point required under section1886(s)(3)(B) of the Act), and the wage index budget neutrality factor of 1.0010 to the FY 2013 Federal per diem base rate of $698.51, yielding a Federal per diem base rate of $713.19 for FY 2014. Similarly, we are applying the 2.0 percent payment update, and the 1.0010 wage index budget neutrality factor to the FY 2013 ECT base rate, yielding an ECT base rate of $307.04 for FY 2014.
As noted above, section 1886(s)(4) of the Act requires the establishment of a quality data reporting program for the IPF PPS beginning in RY 2014. We finalized new requirements for quality reporting for IPFs in the “Hospital Inpatient Prospective Payment System for Acute Care Hospitals and the Long Term Care Hospital Prospective Payment System and Fiscal Year 2013 Rates” final rule (August 31, 2012) (77 FR 53258, 53644 through 53360). Section 1886(s)(4)(A)(i) of the Act requires that, for RY 2014 and each subsequent rate year, the Secretary shall reduce any annual update to a standard Federal rate for discharges occurring during the rate year by 2.0 percentage points for any IPF that does not comply with the quality data submission requirements with respect to an applicable year. Therefore, we are applying a 2.0 percentage point reduction to the federal per diem base rate and the ECT base rate as follows.
For IPFs that fail to submit quality reporting data under the IPFQR program, we are applying a 0 percent annual update (that is 2 percent reduced by 2 percentage points in accordance with section 1886(s)(4)(A)(ii) of the Act) and the wage index budget neutrality factor of 1.0010 to the FY 2013 Federal per diem base rate of $698.51, yielding a Federal per diem base rate of $699.21 for FY 2014.
Similarly, we are applying the 0 percent annual update and the 1.0010 wage index budget neutrality factor to
In the FY 2014 IPPS/LTCH PPS final rule (78 FR 27485), we are adopting two new measures for the FY 2016 payment determination and subsequent years for the IPFQR Program. We are also finalizing a request for voluntary information whereby IPFs will be asked to provide information on the patient experience of care survey they use.
The IPF PPS payment adjustments were derived from a regression analysis of 100 percent of the FY 2002 MedPAR data file, which contained 483,038 cases. For this notice, we used the same results of the regression analysis used to implement the November 2004 IPF PPS final rule. For a more detailed description of the data file used for the regression analysis, see the November 2004 IPF PPS final rule (69 FR 66935 through 66936). While we have since used more recent claims data to set the fixed dollar loss threshold amount, we used the same results of this regression analysis to update the IPF PPS for FY 2013 and for FY 2014. Now that we are approximately 8 years into the IPF PPS, we believe that we have enough data to begin looking at the process of refining the IPF PPS as appropriate. We expect that in future rulemaking, we may propose potential refinements to the system.
As we stated previously, we do not plan to update the regression analysis until we are able to analyze IPF PPS claims and cost report data. However, we continue to monitor claims and payment data independently from cost report data to assess issues, to determine whether changes in case-mix or payment shifts have occurred among freestanding governmental, non-profit and private psychiatric hospitals, and psychiatric units of general hospitals, and CAHs and other issues of importance to IPFs.
In the August 2012 IPF PPS notice (77 FR 47230 through 47233) we announced payment adjustments for the following patient-level characteristics: Medicare Severity diagnosis related groups (MS–DRGs) assignment of the patient's principal diagnosis, selected comorbidities, patient age, and the variable per diem adjustments.
The IPF PPS includes payment adjustments for designated psychiatric DRGs assigned to the claim based on each patient's principal diagnosis. As we did in FY 2013 (77 FR 47231), for FY 2014, we will make a payment adjustment for psychiatric diagnoses that group to one of the 17 MS–IPF–DRGs listed in Table 2. The DRG adjustment factors were expressed relative to the most frequently reported psychiatric DRG in FY 2002, that is, DRG 430 (psychoses). The coefficient values and adjustment factors were derived from the regression analysis.
In accordance with § 412.27(a), payment under the IPF PPS is conditioned on IPFs admitting “only patients whose admission to the unit is required for active treatment, of an intensity that can be provided appropriately only in an inpatient hospital setting, of a psychiatric principal diagnosis that is listed in Chapter Five (`Mental Disorders') of the International Classification of Diseases, Ninth Revision, Clinical Modification (ICD–9–CM)” or in the Fourth Edition, Text Revision of the American Psychiatric Association's Diagnostic and Statistical Manual, (DSM–IV–TR). IPF claims with a principal diagnosis included in Chapter Five of the ICD–9–CM or the DSM–IV–TR are paid the Federal per diem base rate under the IPF PPS and all other applicable adjustments, including any applicable DRG adjustment. Psychiatric principal diagnoses that do not group to one of the 17 designated DRGs will still receive the Federal per diem base rate and all other applicable adjustments, but the payment will not include a DRG adjustment.
The Standards for Electronic Transaction final rule published in the
We believe that it is important to maintain the same diagnostic coding and DRG classification for IPFs that are used under the IPPS for providing psychiatric care. Therefore, when the IPF PPS was implemented for cost reporting periods beginning on or after January 1, 2005, we adopted the same diagnostic code set and DRG patient classification system (that is, the CMS DRGs) that were utilized at the time under the hospital inpatient IPPS. Since the inception of the IPF PPS, the DRGs used as the patient classification system under the IPF PPS have corresponded exactly with the CMS DRGs applicable under the IPPS for acute care hospitals.
Every year, changes to the ICD–9–CM coding system are addressed in the IPPS proposed and final rules. The changes to the codes are effective October 1 of each year and must be used by acute care hospitals as well as other providers to report diagnostic and procedure information. The IPF PPS has always incorporated ICD–9–CM coding changes made in the annual IPPS update. We publish coding changes in a Transmittal/Change Request, similar to how coding changes are announced by the IPPS and LTCH PPS. Those ICD–9–CM coding changes are also published in the following IPF PPS FY update, in either the IPF PPS proposed and final rules, or in an IPF PPS update notice.
In the May 2008 IPF PPS notice (73 FR 25709), we discussed CMS' effort to better recognize resource use and the severity of illness among patients. CMS adopted the new MS–DRGs for the IPPS in the FY 2008 IPPS final rule with comment period (72 FR 47130). A crosswalk, to reflect changes that were made to the DRGs under the IPF PPS to the new MS–DRGs, was provided (73 FR 25716). We believe by better accounting for patients' severity of illness in Medicare payment rates, the MS–DRGs encourage hospitals to improve their coding and documentation of patient diagnoses. The MS–DRGs, which are based on the IPPS MS–DRGs, represent a significant increase in the number of DRGs (from 538 to 745, an increase of 207). For a full description of the development and implementation of the MS–DRGs, see the FY 2008 IPPS final rule with comment period (72 FR 47141 through 47175).
All of the ICD–9–CM coding changes are reflected in the FY 2013 GROUPER, Version 31.0, effective for IPPS discharges occurring on or after October 1, 2013 through September 30, 2014. The GROUPER Version 31.0 software package assigns each case to an MS–DRG on the basis of the diagnosis and procedure codes and demographic information (that is, age, sex, and discharge status). The Medicare Code Editor (MCE) 31.0 uses the new ICD–9–CM codes to validate coding for IPPS discharges on or after October 1, 2013. The complete documentation of the GROUPER logic is available from 3M/Health Information System (HIS), which, under contract with CMS, is responsible for updating and maintaining the GROUPER program. The current MS–DRG Definitions
The impact of the new MS–DRGs on the IPF PPS was negligible. Mapping to the MS–DRGs resulted in the current 17 MS–DRGs, instead of the original 15, for which the IPF PPS provides an adjustment. Although the code set is updated, the same associated adjustment factors apply now that have been in place since implementation of the IPF PPS, with one exception that is unrelated to the update to the codes. When DRGs 521 and 522 were consolidated into MS–DRG 895, we carried over the adjustment factor of 1.02 from DRG 521 to the newly consolidated MS–DRG. This was done to reflect the higher claims volume under DRG 521, with more than eight times the number of claims than billed under DRG 522. For a detailed description of the mapping changes from the original DRG adjustment categories to the current MS–DRG adjustment categories, we refer readers to the May 2008 IPF PPS notice (73 FR 25714).
The official version of the ICD–9–CM is available on CD–ROM from the U.S. Government Printing Office. The FY 2012 version can be ordered by contacting the Superintendent of Documents, U.S. Government Printing Office, Department 50, Washington, DC 20402–9329, telephone number (202) 512–1800. Questions concerning the ICD–9–CM should be directed to Patricia E. Brooks, Co-Chairperson, ICD–9–CM Coordination and Maintenance Committee, CMS, Center for Medicare Management, Hospital and Ambulatory Policy Group, Division of Acute Care, Mailstop C4–08–06, 7500 Security Boulevard, Baltimore, Maryland 21244–1850. The Web site for the CD–ROM which contains the complete official version of the International Classification of Diseases, Ninth Revision, Clinical Modification is located at:
Further information concerning the official version of the ICD–9–CM can be found on the IPPS Web site at:
We note that, in accordance with the requirements of the final rule published in the
The MS–IPF–DRG adjustment factors (as shown in Table 2) will continue to be paid for discharges occurring in FY 2014. In FY 2015, the MS–IPF–DRG adjustment factors will be updated effective with the compliance date for using the ICD–10–CM of October 1, 2014.
The intent of the comorbidity adjustments is to recognize the increased costs associated with comorbid conditions by providing additional payments for certain concurrent medical or psychiatric conditions that are expensive to treat. In the May 2011 IPF PPS final rule (76 FR 26451 through 26452), we explained that the IPF PPS includes 17 comorbidity categories and identified the new, revised, and deleted ICD–9–CM diagnosis codes that generate a comorbid condition payment adjustment under the IPF PPS for RY 2012 (76 FR 26451).
Comorbidities are specific patient conditions that are secondary to the patient's principal diagnosis and that require treatment during the stay. Diagnoses that relate to an earlier episode of care and have no bearing on
For each claim, an IPF may receive only one comorbidity adjustment within a comorbidity category, but it may receive an adjustment for more than one comorbidity category. Billing instructions require that IPFs must enter the full ICD–9–CM codes for up to 24 additional diagnoses if they co-exist at the time of admission or develop subsequently and impact the treatment provided.
The comorbidity adjustments were determined based on the regression analysis using the diagnoses reported by IPFs in FY 2002. The principal diagnoses were used to establish the DRG adjustments and were not accounted for in establishing the comorbidity category adjustments, except where ICD–9–CM “code first” instructions apply. As we explained in the May 2011 IPF PPS final rule (76 FR 265451), the code first rule applies when a condition has both an underlying etiology and a manifestation due to the underlying etiology. For these conditions, ICD–9–CM has a coding convention that requires the underlying conditions to be sequenced first followed by the manifestation. Whenever a combination exists, there is a “use additional code” note at the etiology code and a code first note at the manifestation code.
As discussed in the MS–DRG section, it is our policy to maintain the same diagnostic coding set for IPFs that is used under the IPPS for providing the same psychiatric care.
For FY 2014, we are applying the 17 comorbidity categories for which we are providing an adjustment, their respective codes, and their respective adjustment factors in Table 3 below. In FY 2015, the diagnosis codes and adjustment factors for the comorbidity categories will be updated effective with the compliance date for using the ICD–10–CM of October 1, 2014.
As explained in the November 2004 IPF PPS final rule (69 FR 66922), we analyzed the impact of age on per diem cost by examining the age variable (that is, the range of ages) for payment adjustments.
In general, we found that the cost per day increases with age. The older age groups are more costly than the under 45 age group, the differences in per diem cost increase for each successive age group, and the differences are statistically significant.
We do not plan to update the regression analysis until we are able to analyze IPF PPS data. Therefore, for FY 2014, we are continuing to use the patient age adjustments currently in effect as shown in Table 4 below.
We explained in the November 2004 IPF PPS final rule (69 FR 66946) that the regression analysis indicated that per diem cost declines as the LOS increases. The variable per diem adjustments to the Federal per diem base rate account for ancillary and administrative costs that occur disproportionately in the first days after admission to an IPF.
We used a regression analysis to estimate the average differences in per diem cost among stays of different lengths. As a result of this analysis, we established variable per diem adjustments that begin on day 1 and decline gradually until day 21 of a patient's stay. For day 22 and thereafter, the variable per diem adjustment
For FY 2014, we are continuing to use the variable per diem adjustment factors currently in effect as shown in Table 5 below. A complete discussion of the variable per diem adjustments appears in the November 2004 IPF PPS final rule (69 FR 66946).
The IPF PPS includes facility-level adjustments for the wage index, IPFs located in rural areas, teaching IPFs, cost of living adjustments for IPFs located in Alaska and Hawaii, and IPFs with a qualifying ED.
As discussed in the May 2006 IPF PPS final rule (71 FR 27061) and in the May 2008 (73 FR 25719) and May 2009 IPF PPS notices (74 FR 20373), in order to provide an adjustment for geographic wage levels, the labor-related portion of an IPF's payment is adjusted using an appropriate wage index. Currently, an IPF's geographic wage index value is determined based on the actual location of the IPF in an urban or rural area as defined in § 412.64(b)(1)(ii)(A) and (C).
Since the inception of the IPF PPS, we have used the pre-reclassified, pre-floor hospital wage index in developing a wage index to be applied to IPFs because there is not an IPF-specific wage index available and we believe that IPFs generally compete in the same labor market as acute care hospitals so the pre-reclassified, pre-floor inpatient acute care hospital wage index should be reflective of labor costs of IPFs. As discussed in the May 2006 IPF PPS final rule for FY 2007 (71 FR 27061 through 27067), under the IPF PPS, the wage index is calculated using the IPPS wage index for the labor market area in which the IPF is located, without taking into account geographic reclassifications, floors, and other adjustments made to the wage index under the IPPS. For a complete description of these IPPS wage index adjustments, please see the CY 2013 IPPS/IRF PPS final rule (77 FR 53365 through 53374). We are continuing that practice for FY 2014.
We apply the wage index adjustment to the labor-related portion of the Federal rate, which is 69.494 percent. This percentage reflects the labor-related relative importance of the FY 2008-based RPL market basket for FY 2014 (see section V.C. of this notice).
Changes to the wage index are made in a budget neutral manner so that updates do not increase expenditures. For FY 2014, we are applying the most recent hospital wage index (that is, the FY 2013 pre-floor, pre-reclassified hospital wage index because this is the most appropriate index as it best reflects the variation in local labor costs of IPFs in the various geographic areas) using the most recent hospital wage data (that is, data from hospital cost reports for the cost reporting period beginning during FY 2009), and applying an adjustment in accordance with our budget neutrality policy. This policy requires us to estimate the total amount of IPF PPS payments for FY 2013 using the labor-related share and the wage indices from FY 2013 divided by the total estimated IPF PPS payments for FY 2014 using the labor-related share and wage indices from FY 2014. The estimated payments are based on FY 2012 IPF claims, inflated to the appropriate FY. This quotient is the wage index budget neutrality factor, and it is applied in the update of the Federal per diem base rate for FY 2014 in addition to the market basket described in section VI.B. of this notice. The wage index budget neutrality factor for FY 2014 is 1.0010. The wage index applicable for FY 2014 appears in Table 1 and Table 2 in Addendum B of this notice.
In the May 2006 IPF PPS final rule for RY 2007 (71 FR 27061–27067), we adopted the changes discussed in the Office of Management and Budget (OMB) Bulletin No. 03–04 (June 6, 2003), which announced revised definitions for Metropolitan Statistical Areas (MSAs), and the creation of Micropolitan Statistical Areas and Combined Statistical Areas. In adopting the OMB Core-Based Statistical Area (CBSA) geographic designations, we did not provide a separate transition for the CBSA-based wage index since the IPF PPS was already in a transition period from TEFRA payments to PPS payments.
As was the case in FY 2013, for FY 2014, we will continue to use the CBSA geographic designations. The updated FY 2014 CBSA-based wage index values are presented in Tables 1 and 2 in Addendum B of this notice. A complete discussion of the CBSA labor market definitions appears in the May 2006 IPF PPS final rule (71 FR 27061 through 27067).
In keeping with established IPF PPS wage index policy, we will use the FY 2013 pre-floor, pre-reclassified hospital wage index (which is based on data collected from hospital cost reports submitted by hospitals for cost reporting periods beginning during FY 2009) to adjust IPF PPS payments beginning October 1, 2013.
OMB publishes bulletins regarding CBSA changes, including changes to CBSA numbers and titles. In the May 2008 IPF PPS notice, we incorporated the CBSA nomenclature changes published in the most recent OMB bulletin that applies to the hospital wage index used to determine the current IPF PPS wage index and stated that we expect to continue to do the same for all the OMB CBSA nomenclature changes in future IPF PPS rules and notices, as necessary (73 FR 25721). The OMB bulletins may be accessed online at
In accordance with our established methodology, we have historically adopted any CBSA changes that are published in the OMB bulletin that corresponds with the hospital wage index used to determine the IPF PPS wage index. For FY 2014, we use the FY 2013 pre-floor, pre-reclassified hospital wage index to adjust the IPF PPS payments. On February 28, 2013, OMB issued OMB Bulletin No. 13–01, which
In the November 2004 IPF PPS final rule, we provided a 17 percent payment adjustment for IPFs located in a rural area. This adjustment was based on the regression analysis, which indicated that the per diem cost of rural facilities was 17 percent higher than that of urban facilities after accounting for the influence of the other variables included in the regression. For FY 2014, we are applying a 17 percent payment adjustment for IPFs located in a rural area as defined at § 412.64(b)(1)(ii)(C). As stated in the November 2004 IPF PPS final rule, we do not intend to update the adjustment factors derived from the regression analysis until we are able to analyze IPF PPS data. A complete discussion of the adjustment for rural locations appears in the November 2004 IPF PPS final rule (69 FR 66954).
In the November 2004 IPF PPS final rule, we implemented regulations at § 412.424(d)(1)(iii) to establish a facility-level adjustment for IPFs that are, or are part of, teaching hospitals. The teaching adjustment accounts for the higher indirect operating costs experienced by hospitals that participate in graduate medical education (GME) programs. The payment adjustments are made based on the number of full-time equivalent (FTE) interns and residents training in the IPF and the IPF's average daily census.
Medicare makes direct GME payments (for direct costs such as resident and teaching physician salaries, and other direct teaching costs) to all teaching hospitals including those paid under a PPS, and those paid under the TEFRA rate-of-increase limits. These direct GME payments are made separately from payments for hospital operating costs and are not part of the IPF PPS. The direct GME payments do not address the estimated higher indirect operating costs teaching hospitals may face.
For teaching hospitals paid under the TEFRA rate-of-increase limits, Medicare does not make separate payments for indirect medical education costs because payments to these hospitals are based on the hospitals' reasonable costs which already include these higher indirect costs that may be associated with teaching programs.
The results of the regression analysis of FY 2002 IPF data established the basis for the payment adjustments included in the November 2004 IPF PPS final rule. The results showed that the indirect teaching cost variable is significant in explaining the higher costs of IPFs that have teaching programs. We calculated the teaching adjustment based on the IPF's “teaching variable,” which is one plus the ratio of the number of FTE residents training in the IPF (subject to limitations described below) to the IPF's average daily census (ADC).
We established the teaching adjustment in a manner that limited the incentives for IPFs to add FTE residents for the purpose of increasing their teaching adjustment. We imposed a cap on the number of FTE residents that may be counted for purposes of calculating the teaching adjustment. The cap limits the number of FTE residents that teaching IPFs may count for the purpose of calculating the IPF PPS teaching adjustment, not the number of residents teaching institutions can hire or train. We calculated the number of FTE residents that trained in the IPF during a “base year” and used that FTE resident number as the cap. An IPF's FTE resident cap is ultimately determined based on the final settlement of the IPF's most recent cost report filed before November 15, 2004 (that is, the publication date of the IPF PPS final rule).
In the regression analysis, the logarithm of the teaching variable had a coefficient value of 0.5150. We converted this cost effect to a teaching payment adjustment by treating the regression coefficient as an exponent and raising the teaching variable to a power equal to the coefficient value. We note that the coefficient value of 0.5150 was based on the regression analysis holding all other components of the payment system constant.
As with other adjustment factors derived through the regression analysis, we do not plan to rerun the regression analysis until we analyze IPF PPS data. Therefore, in this notice, for FY 2014, we are retaining the coefficient value of 0.5150 for the teaching adjustment to the Federal per diem base rate.
A complete discussion of how the teaching adjustment was calculated appears in the November 2004 IPF PPS final rule (69 FR 66954 through 66957) and the May 2008 IPF PPS notice (73 FR 25721).
CMS had been asked to reconsider the original IPF teaching policy and permit a temporary increase in the FTE resident cap when an IPF increases the number of FTE residents it trains due to the acceptance of displaced residents (residents that are training in an IPF or a program before the IPF or program closed) when another IPF closes or closes its medical residency training program.
To help us assess how many IPFs had been, or were expected to be adversely affected by their inability to adjust their caps under § 412.424(d)(1) and under these situations, we specifically requested public comment from IPFs in the May 1, 2009 IPF PPS notice (74 FR 20376 through 20377). A summary of the comments and our responses can be reviewed in the April 30, 2010 IPF PPS notice (75 FR 23106 through 23117). All of the commenters recommended that CMS modify the IPF PPS teaching adjustment policy, supporting a policy change that would permit the IPF PPS residency cap to be temporarily adjusted when that IPF trains displaced residents due to closure of an IPF or closure of an IPF's medical residency training program(s). The commenters recommended a temporary resident cap adjustment policy similar to the policies applied in similar contexts for acute care hospitals.
We agreed with the commenters that, when a hospital temporarily takes on residents because another hospital closes or discontinues its program, a temporary adjustment to the cap would be appropriate for a rotation that occurs in an IPF setting (freestanding or units). In these situations, residents may have partially completed a medical residency training program at the hospital that has closed its training program and may be unable to complete their training at another hospital that is already training residents up to or in excess of its cap. We believe that it is appropriate to allow temporary adjustments to the FTE caps for an IPF that provides residency
In the May 6, 2011 IPF PPS final rule (76 FR 26455), we indicated that we would allow an IPF to receive a temporary adjustment to the FTE cap to reflect residents added because of another IPF's closure. This adjustment is intended to account for medical residents who would have partially completed a medical residency training program at the hospital that has closed and may be unable to complete their training at another hospital because that hospital is already training residents up to or in excess of its cap. We made this change because IPFs have indicated a reluctance to accept additional residents from a closed IPF without a temporary adjustment to their caps. For purposes of this policy on IPF closure, we adopted the IPPS definition of “closure of a hospital” in 42 CFR 413.79(h) to mean the IPF terminates its Medicare provider agreement as specified in 42 CFR 489.52. Therefore, we added a new § 412.424(d)(1)(iii)(F)(1) to allow a temporary adjustment to an IPF's FTE cap to reflect residents added because of an IPF's closure on or after July 1, 2011, to be effective for cost reporting periods beginning on or after July 1, 2011. Under this policy, we allow an adjustment to an IPF's FTE cap if the IPF meets the following criteria: (1) The IPF is training displaced residents from an IPF that closed on or after July 1, 2011; and (2) the IPF that is training the displaced residents from the closed IPF submits a request for a temporary adjustment to its FTE cap to its Medicare contractor no later than 60 days after the hospital first begins training the displaced residents, and documents that the IPF is eligible for this temporary adjustment to its FTE cap by identifying the residents who have come from the closed IPF and have caused the IPF to exceed its cap, (or the IPF may already be over its cap), and specifies the length of time that the adjustment is needed. After the displaced residents leave the IPF's training program or complete their residency program, the IPF's cap would revert to its original level. This means that the temporary adjustment to the FTE cap would be available to the IPF only for the period of time necessary for the displaced residents to complete their training. Further, as under the IPPS policy, we also indicated that the total amount of temporary cap adjustment that can be distributed to all receiving hospitals cannot exceed the cap amount of the IPF that closed.
In the May 6, 2011 final rule (76 FR 26455), we indicated that if an IPF that ceases training residents in a residency training program(s) agrees to temporarily reduce its FTE cap, we would allow another IPF to receive a temporary adjustment to its FTE cap to reflect residents added because of the closure of another IPF's residency training program. For purposes of this policy on closed residency programs, we adopted the IPPS definition of “closure of a hospital residency training program” to mean that the hospital ceases to offer training for residents in a particular approved medical residency training program as specified in § 413.79(h). The methodology for adjusting the caps for the “receiving IPF” and the “IPF that closed its program” is described below.
We proposed and finalized that an IPF(s) may receive a temporary adjustment to its FTE cap to reflect residents added because of the closure of another IPF's residency training program for cost reporting periods beginning on or after July 1, 2011 if—
• The IPF is training additional residents from the residency training program of an IPF that closed its program on or after July 1, 2011.
• No later than 60 days after the IPF begins to train the residents, the IPF submits to its Medicare Contractor a request for a temporary adjustment to its FTE cap, documents that the IPF is eligible for this temporary adjustment by identifying the residents who have come from another IPF's closed program and have caused the IPF to exceed its cap, (or the IPF may already be in excess of its cap), specifies the length of time the adjustment is needed, and, submits to its Medicare contractor a copy of the FTE cap reduction statement by the IPF closing the residency training program.
In general, the temporary adjustment criteria established for closed medical residency training programs at IPFs is similar to the criteria established for closed IPFs. More than one IPF may be eligible to apply for the temporary adjustment because residents from one closed program may complete their training at one IPF, or at several IPFs. Also, an IPF would be eligible for the temporary adjustment only to the extent that the displaced residents would cause the IPF to exceed its FTE cap.
Finally, we proposed and finalized that IPFs meeting the proposed criteria would be eligible to receive temporary adjustments to their FTE caps for cost reporting periods beginning on or after July 1, 2011.
We indicated that an IPF that agrees to train residents who have been displaced by the closure of another IPF's resident teaching program, may receive a temporary FTE cap adjustment only if the IPF that closed a program:
• Temporarily reduces its FTE cap by the number of FTE residents, in each program year, training in the program at the time of the program's closure. The yearly reduction would be determined by deducting the number of those residents who would have been training in the program during the year of the closure, had the program not closed.
• No later than 60 days after the residents who were in the closed program begin training at another IPF, submits to its Medicare contractor a statement signed and dated by its representative that specifies that it agrees to the temporary reduction in its FTE cap to allow the IPF training the displaced residents to obtain a temporary adjustment to its cap; identifies the residents who were training at the time of the program's closure; identifies the IPFs to which the residents are transferring once the program closes; and specifies the reduction for the applicable program years.
We proposed and finalized that the cap reduction for the IPF with the closed program would be based on the number of FTE residents in each program year who were in the program at the IPF at the time of the program's closure, and who begin training at another IPF.
A complete discussion on the temporary adjustment to the FTE cap to reflect residents added due to hospital closure and by residency program appears in the January 27, 2011 IPF PPS proposed rule (76 FR 5018 through 5020) and the May 6, 2011 IPF PPS final rule (76 FR 26453 through 26456).
The IPF PPS includes a payment adjustment for IPFs located in Alaska and Hawaii based upon the county in which the IPF is located. As we explained in the November 2004 IPF PPS final rule, the FY 2002 data demonstrated that IPFs in Alaska and Hawaii had per diem costs that were disproportionately higher than other IPFs. Other Medicare PPSs (for example, the IPPS and LTCH PPS) have adopted a cost of living adjustment (COLA) to account for the cost differential of care furnished in Alaska and Hawaii.
We analyzed the effect of applying a COLA to payments for IPFs located in Alaska and Hawaii. The results of our analysis demonstrated that a COLA for IPFs located in Alaska and Hawaii would improve payment equity for these facilities. As a result of this analysis, we provided a COLA in the November 2004 IPF PPS final rule.
A COLA adjustment for IPFs located in Alaska and Hawaii is made by multiplying the nonlabor-related portion of the Federal per diem base rate by the applicable COLA factor based on the COLA area in which the IPF is located.
The COLA factors are published on the Office of Personnel Management (OPM) Web site (
We note that the COLA areas for Alaska are not defined by county as are the COLA areas for Hawaii. In 5 CFR 591.207, the OPM established the following COLA areas:
• City of Anchorage, and 80-kilometer (50-mile) radius by road, as measured from the Federal courthouse;
• City of Fairbanks, and 80-kilometer (50-mile) radius by road, as measured from the Federal courthouse;
• City of Juneau, and 80-kilometer (50-mile) radius by road, as measured from the Federal courthouse;
• Rest of the State of Alaska.
As previously stated in the November 2004 IPF PPS final rule, we update the COLA factors according to updates established by the OPM. Sections 1911 through 1919 of the Nonforeign Area Retirement Equity Assurance Act, as contained in subtitle B of title XIX of the National Defense Authorization Act (NDAA) for Fiscal Year 2010 (Pub. L. 111–84, October 28, 2009), transitions the Alaska and Hawaii COLAs to locality pay. Under section 1914 of Public Law 111–84, locality pay is being phased in over a 3-year period beginning in January 2010, with COLA rates frozen as of the date of enactment, October 28, 2009, and then proportionately reduced to reflect the phase-in of locality pay.
When we published the proposed COLA adjustment factors in the January 2011 IPF proposed rule (76 FR 4998), we inadvertently selected the FY 2010 COLA rates. The FY 2010 COLA rates were reduced rates to account for the phase-in of locality pay. We did not intend to propose reduced COLA rates, and we do not believe it is appropriate to finalize the reduced COLAs that we showed in our January 2011 proposed rule. The 2009 COLA rates do not reflect the phase-in of locality pay. Therefore, we finalized the FY 2009 COLA rates, which are the same rates that were in effect for RY 2010 through RY 2012. We plan to address the COLA in the future refinement process in FY 2015. For FY 2014, IPFs located in Alaska and Hawaii will continue to receive the updated COLA factors based on the COLA area in which the IPF is located as shown in Table 6 below.
The IPF PPS includes a facility-level adjustment for IPFs with qualifying EDs. We provide an adjustment to the Federal per diem base rate to account for the costs associated with maintaining a full-service ED. The adjustment is intended to account for ED costs incurred by a freestanding psychiatric hospital with a qualifying ED or a distinct part psychiatric unit of an acute hospital or a CAH for preadmission services otherwise payable under the Medicare Outpatient Prospective Payment System (OPPS) furnished to a beneficiary on the date of the beneficiary's admission to the
The ED adjustment is incorporated into the variable per diem adjustment for the first day of each stay for IPFs with a qualifying ED. That is, IPFs with a qualifying ED receive an adjustment factor of 1.31 as the variable per diem adjustment for day 1 of each stay. If an IPF does not have a qualifying ED, it receives an adjustment factor of 1.19 as the variable per diem adjustment for day 1 of each patient stay.
The ED adjustment is made on every qualifying claim except as described below. As specified in § 412.424(d)(1)(v)(B), the ED adjustment is not made where a patient is discharged from an acute care hospital or CAH and admitted to the same hospital's or CAH's psychiatric unit. An ED adjustment is not made in this case because the costs associated with ED services are reflected in the DRG payment to the acute care hospital or through the reasonable cost payment made to the CAH. If we provided the ED adjustment in these cases, the hospital would be paid twice for the overhead costs of the ED, as stated in the November 2004 IPF PPS final rule (69 FR 66960).
Therefore, when patients are discharged from an acute care hospital or CAH and admitted to the same hospital's or CAH's psychiatric unit, the IPF receives the 1.19 adjustment factor as the variable per diem adjustment for the first day of the patient's stay in the IPF.
For FY 2014, we are retaining the 1.31 adjustment factor for IPFs with qualifying EDs. A complete discussion of the steps involved in the calculation of the ED adjustment factor appears in the November 2004 IPF PPS final rule (69 FR 66959 through 66960) and the May 2006 IPF PPS final rule (71 FR 27070 through 27072).
For FY 2014, the IPF PPS includes an outlier adjustment to promote access to IPF care for those patients who require expensive care and to limit the financial risk of IPFs treating unusually costly patients. In this section, we also explain the reason for ending the stop-loss provision that was applicable during the transition period.
In the November 2004 IPF PPS final rule, we implemented regulations at § 412.424(d)(3)(i) to provide a per-case payment for IPF stays that are extraordinarily costly. Providing additional payments to IPFs for extremely costly cases strongly improves the accuracy of the IPF PPS in determining resource costs at the patient and facility level. These additional payments reduce the financial losses that would otherwise be incurred in treating patients who require more costly care and, therefore, reduce the incentives for IPFs to under-serve these patients.
We make outlier payments for discharges in which an IPF's estimated total cost for a case exceeds a fixed dollar loss threshold amount (multiplied by the IPF's facility-level adjustments) plus the Federal per diem payment amount for the case.
In instances when the case qualifies for an outlier payment, we pay 80 percent of the difference between the estimated cost for the case and the adjusted threshold amount for days 1 through 9 of the stay (consistent with the median LOS for IPFs in FY 2002), and 60 percent of the difference for day 10 and thereafter. We established the 80 percent and 60 percent loss sharing ratios because we were concerned that a single ratio established at 80 percent (like other Medicare PPSs) might provide an incentive under the IPF per diem payment system to increase LOS in order to receive additional payments. After establishing the loss sharing ratios, we determined the current fixed dollar loss threshold amount of $11,600 through payment simulations designed to compute a dollar loss beyond which payments are estimated to meet the 2 percent outlier spending target.
In accordance with the update methodology described in § 412.428(d), we are updating the fixed dollar loss threshold amount used under the IPF PPS outlier policy. Based on the regression analysis and payment simulations used to develop the IPF PPS, we established a 2 percent outlier policy which strikes an appropriate balance between protecting IPFs from extraordinarily costly cases while ensuring the adequacy of the Federal per diem base rate for all other cases that are not outlier cases.
We believe it is necessary to update the fixed dollar loss threshold amount because an analysis of the latest available data (that is, FY 2012 IPF claims) and rate increases indicate that adjusting the fixed dollar loss amount is necessary in order to maintain an outlier percentage that equals 2 percent of total estimated IPF PPS payments.
In the May 2006 IPF PPS final rule (71 FR 27072), we describe the process by which we calculate the outlier fixed dollar loss threshold amount. We will continue to use this process for FY 2014. We begin by simulating aggregate payments with and without an outlier policy, and applying an iterative process to determine an outlier fixed dollar loss threshold amount that will result in estimated outlier payments being equal to 2 percent of total estimated payments under the simulation. Based on this process, using the FY 2012 claims data, we estimate that IPF outlier payments as a percentage of total estimated payments are approximately 1.7 percent in FY 2013. Thus, for this notice, we are updating the FY 2014 IPF outlier threshold amount to ensure that estimated FY 2014 outlier payments are approximately 2 percent of total estimated IPF payments. The outlier fixed dollar loss threshold amount of $11,600 for FY 2013 will be changed to $10,245 for FY 2014 to increase estimated outlier payments and thereby maintain estimated outlier payments at 2 percent of total estimated aggregate IPF payments for FY 2014.
As previously stated, under the IPF PPS, an outlier payment is made if an IPF's cost for a stay exceeds a fixed dollar loss threshold amount. In order to establish an IPF's cost for a particular case, we multiply the IPF's reported charges on the discharge bill by its overall cost-to-charge ratio (CCR). This approach to determining an IPF's cost is consistent with the approach used under the IPPS and other PPSs. In the June 2003 IPPS final rule (68 FR 34494), we implemented changes to the IPPS policy used to determine CCRs for acute care hospitals because we became aware that payment vulnerabilities resulted in inappropriate outlier payments. Under the IPPS, we established a statistical measure of accuracy for CCRs in order to ensure that aberrant CCR data did not result in inappropriate outlier payments.
As we indicated in the November 2004 IPF PPS final rule, because we believe that the IPF outlier policy is susceptible to the same payment vulnerabilities as the IPPS, we adopted a method to ensure the statistical accuracy of CCRs under the IPF PPS (69
To determine the rural and urban ceilings, we multiplied each of the standard deviations by 3 and added the result to the appropriate national CCR average (either rural or urban). The upper threshold CCR for IPFs in FY 2014 is 1.8644 for rural IPFs, and 1.7066 for urban IPFs, based on CBSA-based geographic designations. If an IPF's CCR is above the applicable ceiling, the ratio is considered statistically inaccurate and we assign the appropriate national (either rural or urban) median CCR to the IPF.
We apply the national CCRs to the following situations:
++ New IPFs that have not yet submitted their first Medicare cost report.
++ IPFs whose overall CCR is in excess of 3 standard deviations above the corresponding national geometric mean (that is, above the ceiling).
++ Other IPFs for which the Medicare contractor obtains inaccurate or incomplete data with which to calculate a CCR.
For new IPFs, we are using these national CCRs until the facility's actual CCR can be computed using the first tentatively or final settled cost report.
We are not making any changes to the procedures for updating the CCR ceilings in FY 2014. However, we are updating the FY 2014 national median and ceiling CCRs for urban and rural IPFs based on the CCRs entered in the latest available IPF PPS Provider Specific File. Specifically, for FY 2014, and to be used in each of the three situations listed above, using the most recent CCRs entered in the CY 2013 Provider Specific File we estimate the national median CCR of 0.6220 for rural IPFs and the national median CCR of 0.4770 for urban IPFs. These calculations are based on the IPF's location (either urban or rural) using the CBSA-based geographic designations.
A complete discussion regarding the national median CCRs appears in the November 2004 IPF PPS final rule (69 FR 66961 through 66964).
In the November 2004 IPF PPS final rule, we implemented a stop-loss policy that reduced financial risk to IPFs projected to experience substantial reductions in Medicare payments during the period of transition to the IPF PPS. This stop-loss policy guaranteed that each facility received total IPF PPS payments that were no less than 70 percent of its TEFRA payments had the IPF PPS not been implemented. This policy was applied to the IPF PPS portion of Medicare payments during the 3-year transition.
In the implementation year, the 70 percent of TEFRA payment stop-loss policy required a reduction in the standardized Federal per diem and ECT base rates of 0.39 percent in order to make the stop-loss payments budget neutral. As described in the May 2008 IPF PPS notice for RY 2009, we increased the Federal per diem base rate and ECT rate by 0.39 percent because these rates were reduced by 0.39 percent in the implementation year to ensure stop-loss payments were budget neutral.
The stop-loss provision ended during RY 2009 (that is for discharges occurring on or after July 1, 2008 through June 30, 2009). The stop-loss policy is no longer applicable under the IPF PPS.
As we have indicated throughout this notice, we have delayed making refinements to the IPF PPS until we have adequate IPF PPS data on which to base those refinements. Specifically, we explained that we will delay updating the adjustment factors derived from the regression analysis until we have IPF PPS data that include as much information as possible regarding the patient-level characteristics of the population that each IPF serves. Now that we are approximately 8 years into the system, we believe that we have enough data to begin that process. We have begun the necessary analysis to better understand IPF industry practices so that we may refine the IPF PPS as appropriate. Using more recent data, we plan to re-run the regression analyses and recalculate the Federal per diem base rate and the patient-and facility-level adjustments. While we are not making these refinements in this notice, we expect that in the rulemaking for FY 2015 we will be ready to present the results of our analysis.
For RY 2012, we published several areas of concern for future refinement and we invited comments on these issues in our RY 2012 proposed and final rules. For further discussion of these issues and to review public comments, we refer readers to the RY 2012 IPF PPS proposed rule (76 FR 4998) and final rule (76 FR 26432).
Section 1886(e)(4)(A) of the Act requires the Secretary, taking into consideration the recommendations of MedPAC, to recommend update factors for inpatient hospital services (including IPFs) for each FY that take into account the amounts necessary for the efficient and effective delivery of medically appropriate and necessary care of high quality. Section 1886(e)(5) of the Act requires the Secretary to publish the recommended and final update factors in the
In the past, the Secretary's recommendations and a discussion about the MedPAC recommendations for the IPF PPS were included in the IPPS proposed and final rules. The market basket update for the IPF PPS was also included in the IPPS proposed and final rules, as well as in the IPF PPS annual update.
Beginning FY 2013, however, we only publish the market basket update for the IPF PPS in the annual IPF PPS FY update and not in the IPPS proposed and final rules. Furthermore, for any years in which MedPAC makes recommendations for the IPF PPS, those recommendations will be noted and considered in the IPF PPS update.
MedPAC did not make any recommendations for the IPF PPS for FY 2014. For the update to the IPF PPS standard Federal rate for FY 2014, see section IV B. of this notice.
We ordinarily publish a notice of proposed rulemaking in the
We find it is unnecessary to undertake notice and comment rulemaking for this action because the updates in this notice do not reflect any substantive changes in policy, but merely reflect the application of previously established methodologies. Therefore, under 5 U.S.C 553(b)(3)(B), for good cause, we waive notice and comment procedures.
This notice does not impose any new or revised information collection, recordkeeping, or third-party disclosure requirements. Consequently, it does not need additional Office of Management and Budget review under the authority
This notice will update the prospective payment rates for Medicare inpatient hospital services provided by IPF for discharges occurring during the FY beginning October 1, 2013 through September 30, 2014. We are applying the FY 2008-based RPL market basket increase of 2.6 percent, less the 0.1 percentage point required by sections 1886(s)(2)(A) (ii) and 1886(s)(3)(B) of the Act and less the productivity adjustment of 0.5 percentage point as required by 1886(s)(2)(A)(i) of the Act.
We have examined the impact of this notice as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96–354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104–4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).
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). A regulatory impact analysis (RIA) must be prepared for a major notice with economically significant effects ($100 million or more in any 1 year). This notice is designated as economically “significant” under section 3(f)(1) of Executive Order 12866.
We estimate that the total impact of these changes for FY 2014 payments compared to FY 2013 payments will be a net increase of approximately $115 million. This reflects a $100 million increase from the update to the payment rates, as well as, a $15 million increase as a result of the update to the outlier threshold amount. Outlier payments are estimated to increase from 1.7 percent in FY 2013 to 2.0 percent in FY 2014.
The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most IPFs and most other providers and suppliers are small entities, either by nonprofit status or having revenues of $7 million to $34.5 million or less in any 1 year depending on industry classification (for details, refer to the SBA Small Business Size Standards found at
Because we lack data on individual hospital receipts, we cannot determine the number of small proprietary IPFs or the proportion of IPFs' revenue that is derived from Medicare payments. Therefore, we assume that all IPFs are considered small entities. The Department of Health and Human Services generally uses a revenue impact of 3 to 5 percent as a significance threshold under the RFA.
As shown in Table 7, we estimate that the overall revenue impact of this notice on all IPFs is to increase Medicare payments by approximately 2.3 percent. As a result, since the estimated impact of this notice is a net increase in revenue across all categories of IPFs, the Secretary has determined that this notice will have a positive revenue impact on a substantial number of small entities. Medicare fiscal intermediaries, Medicare Administrative Contractors, and Carriers are not considered to be small entities. Individuals and States are not included in the definition of a small entity.
In addition, section 1102(b) of the Social Security Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. As discussed in detail below, the rates and policies set forth in this notice will not have an adverse impact on the rural hospitals based on the data of the 309 rural units and 73 rural hospitals in our database of 1,624 IPFs for which data were available. Therefore, the Secretary has determined that this notice will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This notice will not impose spending costs on state, local, or tribal governments in the aggregate, or by the private sector, of $141 million.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. As stated above, this notice would not have a substantial effect on state and local governments.
We discuss the historical background of the IPF PPS and the impact of this notice on the Federal Medicare budget and on IPFs.
As discussed in the November 2004 and May 2006 IPF PPS final rules, we applied a budget neutrality factor to the Federal per diem and ECT base rates to ensure that total estimated payments under the IPF PPS in the implementation period would equal the amount that would have been paid if the IPF PPS had not been implemented. The budget neutrality factor includes the following components: outlier adjustment, stop-loss adjustment, and the behavioral offset. As discussed in the May 2008 IPF PPS notice (73 FR 25711), the stop-loss adjustment is no longer applicable under the IPF PPS.
In accordance with § 412.424(c)(3)(ii), we indicated that we will evaluate the accuracy of the budget neutrality adjustment within the first 5 years after implementation of the payment system. We may make a one-time prospective adjustment to the Federal per diem and ECT base rates to account for differences between the historical data on cost-based TEFRA payments (the basis of the budget neutrality adjustment) and estimates of TEFRA payments based on actual data from the first year of the IPF PPS. As part of that process, we will reassess the accuracy of all of the factors impacting budget neutrality. In addition, as discussed in section VII.C.1 of this notice, we are using the wage index and labor-related share in a budget neutral manner by applying a wage index budget neutrality factor to the Federal per diem and ECT base rates. Therefore, the budgetary impact to the Medicare program of this notice will be due to the market basket update for FY 2014 of 2.6 percent (see section V.B. of this notice) less the “other
We estimate that the FY 2014 impact will be a net increase of $115 million in payments to IPF providers. This reflects an estimated $100 million increase from the update to the payment rates and a $15 million increase due to the update to the outlier threshold amount to increase outlier payments from approximately 1.7 percent in FY 2013 to 2.0 percent in FY 2014.
To understand the impact of the changes to the IPF PPS on providers, discussed in this notice, it is necessary to compare estimated payments under the IPF PPS rates and factors for FY 2014 versus those under FY 2013. The estimated payments for FY 2013 and FY 2014 will be 100 percent of the IPF PPS payment, since the transition period has ended and stop-loss payments are no longer paid. We determined the percent change of estimated FY 2014 IPF PPS payments to FY 2013 IPF PPS payments for each category of IPFs. In addition, for each category of IPFs, we have included the estimated percent change in payments resulting from the update to the outlier fixed dollar loss threshold amount, the labor-related share and wage index changes for the FY 2014 IPF PPS, and the market basket update for FY 2014, as adjusted by the “other adjustment” according to sections 1886(s)(2)(A)(ii) and 1886(s)(3)(B) of the Act and the productivity adjustment according to section 1886(s)(2)(A)(i).
To illustrate the impacts of the FY 2014 changes in this notice, our analysis begins with a FY 2013 baseline simulation model based on FY 2012 IPF payments inflated to the midpoint of FY 2013 using IHS Global Insight Inc.'s most recent forecast of the market basket update (see section V.B. of this notice); the estimated outlier payments in FY 2013; the CBSA designations for IPFs based on OMB's MSA definitions after June 2003; the FY 2012 pre-floor, pre-reclassified hospital wage index; the FY 2013 labor-related share; and the FY 2013 percentage amount of the rural adjustment. During the simulation, the total estimated outlier payments are maintained at 2 percent of total IPF PPS payments.
Each of the following changes is added incrementally to this baseline model in order for us to isolate the effects of each change:
• The update to the outlier fixed dollar loss threshold amount.
• The FY 2013 pre-floor, pre-reclassified hospital wage index and FY 2014 labor-related share.
• The market basket update for FY 2014 of 2.6 percent less the “other adjustment” of 0.1 percentage point in accordance with sections 1886(s)(2)(A)(ii) and 1886(s)(3)(B) of the Act and less the productivity adjustment of 0.5 percentage point reduction in accordance with section 1886(s)(2)(A)(i) of the Act.
Our final comparison illustrates the percent change in payments from FY 2013 (that is, October 1, 2012 to September 30, 2013) to FY 2014 (that is, October 1, 2013 to September 30, 2014) including all the changes in this notice.
Table 7 above displays the results of our analysis. The table groups IPFs into the categories listed below based on characteristics provided in the Provider of Services (POS) file, the IPF provider specific file, and cost report data from HCRIS:
• Facility Type
• Location
• Teaching Status Adjustment
• Census Region
• Size
In column 3, we present the effects of the update to the outlier fixed dollar loss threshold amount. We estimate that IPF outlier payments as a percentage of total IPF payments are 1.7 percent in FY 2013. Thus, we are adjusting the outlier threshold amount in this notice to set total estimated outlier payments equal to 2 percent of total payments in FY 2014. The estimated change in total IPF payments for FY 2014, therefore, includes an approximate 0.3 percent increase in payments because the outlier portion of total payments is expected to increase from approximately 1.7 percent to 2 percent.
The overall impact of this outlier adjustment update (as shown in column 3 of table 7), across all hospital groups, is to increase total estimated payments to IPFs by 0.3 percent. We do not estimate that any group of IPFs will experience a decrease in payments from this update. The largest increase in payments is estimated to reflect a 0.9 percent increase in payments for IPFs located in teaching hospitals with an intern and resident ADC ratio greater than 30 percent.
In column 4, we present the effects of the budget-neutral update to the labor-related share and the wage index adjustment under the CBSA geographic area definitions announced by OMB in June 2003. This is a comparison of the simulated FY 2014 payments under the FY 2013 hospital wage index under CBSA classification and associated labor-related share to the simulated FY 2013 payments under the FY 2012 hospital wage index under CBSA classifications and associated labor-related share. We note that there is no projected change in aggregate payments to IPFs, as indicated in the first row of column 4. However, there will be small distributional effects among different categories of IPFs. For example, we estimate the largest increase in payments to be a 0.9 percent increase for IPFs in the Pacific region and the largest decrease in payments to be a 0.7 percent decrease for IPFs in the East South Central region.
Column 5 shows the estimated effect of the update to the IPF PPS payment rates, which includes a 2.6 percent market basket update less the 0.1 percentage point in accordance with section 1886(s)(2)(A)(ii) and 1886(s)(3)(B) and less the productivity adjustment of 0.5 percentage point in accordance with section 1886(s)(2)(A)(i).
Column 6 compares our estimates of the total changes reflected in this notice for FY 2014, to our payments for FY 2013 (without these changes). This column reflects all FY 2014 changes relative to FY 2013. The average estimated increase for all IPFs is approximately 2.3 percent. This estimated net increase includes the effects of the 2.6 percent market basket update adjusted by the “other adjustment” of minus 0.1 percentage point, as required by sections 1886(s)(2)(A)(ii) and 1886(s)(3)(B) of the Act and the productivity adjustment of minus 0.5 percentage point, as required by section 1886(s)(2)(A)(i) of the Act. It also includes the overall estimated 0.3 percent increase in estimated IPF outlier payments from the update to the outlier fixed dollar loss threshold amount. Since we are making the updates to the IPF labor-related share and wage index in a budget-neutral manner, they will not affect total estimated IPF payments in the aggregate. However, they will
Overall, no IPFs are estimated to experience a net decrease in payments as a result of the updates in this notice. IPFs in urban areas will experience a 2.3 percent increase and IPFs in rural areas will experience a 2.1 percent increase. The largest payment increase is estimated at 3.5 percent for IPFs located in teaching hospitals with an intern and resident ADC ratio greater than 30 percent and IPFs in the Pacific region. This is due to the larger than average positive effect of the CBSA wage index and labor-related share updates and the higher volume of outlier payments for IPFs in these categories.
Based on actuarial projections resulting from our experience with other PPSs, we estimate that Medicare spending (total Medicare program payments) for IPF services over the next 5 years would be as shown in Table 8 below.
These estimates are based on the current forecast of the increases in the RPL market basket, including an adjustment for productivity, for the FY beginning in 2014 and each subsequent RY, as required by section 1886(s)(2)(A)(i) of the Act, as follows:
• 2.1 percent for FY 2014.
• 2.3 percent for FY 2015.
• 2.6 percent for FY 2016.
• 2.6 percent for FY 2017.
• 2.5 percent for FY 2018.
The estimates in Table 8 also include the application of the “other adjustment,” as required by sections 1886(s)(2)(A)(ii) and 1886(s)(3)(B) of the Act, as follows:
• −0.3 percentage point for rate years beginning in 2014.
• −0.2 percentage point for rate years beginning in 2015.
• −0.2 percentage point for rate years beginning in 2016.
• −0.75 percentage point for rate years beginning in 2017.
• −0.75 percentage point for rate years beginning in 2018.
We estimate that there would be a change in fee-for-service Medicare beneficiary enrollment as follows:
• 2.2 percent in FY 2014.
• 4.1 percent in FY 2015.
• 5.0 percent in FY 2016.
• 5.5 percent in FY 2017.
• 4.4 percent in FY 2018.
Under the IPF PPS, IPFs will receive payment based on the average resources consumed by patients for each day. We do not expect changes in the quality of care or access to services for Medicare beneficiaries under the FY 2014 IPF PPS but we continue to expect that paying prospectively for IPF services would enhance the efficiency of the Medicare program.
The statute does not specify an update strategy for the IPF PPS and is broadly written to give the Secretary discretion in establishing an update methodology. Therefore, we are updating the IPF PPS using the methodology published in the November 2004 IPF PPS final rule. Lastly, no alternative policy options were considered in this notice, since this notice does not initiate policy changes with regard to the IPF PPS. This notice simply provides an update to the rates for FY 2014.
As required by OMB Circular A–4 (available at
In accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.
In this addendum, we provide the wage index tables referred to in the preamble to this notice. The tables presented below are as follows:
Table1—FY 2014 Wage Index For Urban Areas Based on CBSA Labor Market Areas.
Table 2—FY 2014 Wage Index Based On CBSA Labor Market Areas For Rural Areas.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Summary presentation of final and interim rules.
This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) in this Federal Acquisition Circular (FAC) 2005–69. A companion document, the
For effective dates and comment dates see separate documents, which follow.
The analyst whose name appears in the table below in relation to each FAR case. Please cite FAC 2005–69 and the specific FAR case numbers. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755.
Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these FAR cases, refer to the specific item numbers and subjects set forth in the documents following these item summaries. FAC 2005–69 amends the FAR as specified below:
This final rule amends, without change, the interim rule published in the
This final rule adopts the interim rule published in the
This rule amends FAR part 42 to provide Governmentwide standardized past performance evaluation factors and performance ratings, and to require all past performance information be entered into the Contractor Performance Assessment Reporting System (CPARS).
This change is required by statute, as well as by the Office of Federal Procurement Policy, which requested that FAR part 42 be revised to include recommendations from the Government Accountability Office Report GAO–09–374, Better Performance Information Needed to Support Agency Contract Award Decisions, to provide Governmentwide standardized evaluation factors and rating scales for the evaluation of contractor performance.
This rule specifically impacts contracting officers and contractors by clarifying the evaluation factors and performance ratings in the FAR. The rule also requires that all past performance information be entered into CPARS. The rule does not have a significant economic impact on small entities because the rule does not impose any additional requirements on small business.
This final rule revises the FAR to implement a section of the 2013 National Defense Authorization Act (Pub. L. 112–239) for agencies covered by title 10 of the United States Code, namely DoD, NASA, and Coast Guard. This section removes the sunset date for protests against the issuance or proposed issuance of an order, valued at more than $10 million, under a task-order contract or delivery-order contract for title 10 agencies only. This rule does not affect title 41 agencies.
This final rule amends the FAR in parts 25 and 52 to revise the definitions of “designated country” and “least developed country,” adding South
This final rule amends the clause at FAR 52.223–2, Affirmative Procurement of Biobased Products Under Service and Construction Contracts, to replace the requirement for agencies to insert the agency environmental point of contact with a single Web site for contractors to submit the annual biobased report. The Web site has instructions and frequently asked questions.
Editorial changes are made at FAR 2.101, 22.1801, 29.401–3, 52.209–6, 52.212–5 and 52.222–54.
Federal Acquisition Circular (FAC) 2005–69 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005–69 is effective August 1, 2013.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA have adopted as final, without change, an interim rule amending the Federal Acquisition Regulation (FAR) to revise the definition of “contingency operation” to address the statutory change to the definition made by the National Defense Authorization Act for Fiscal Year 2012.
Ms. Patricia Corrigan, Procurement Analyst, at 202–208–1963, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Please cite FAC 2005–69, FAR Case 2013–003.
DoD, GSA, and NASA published an interim rule in the
Paragraph (a) of section 515 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112–81), entitled “Authority to Order Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve to Active Duty to Provide Assistance in Response to a Major Disaster or Emergency,” amends chapter 1209 of title 10, United States Code, by incorporating a new provision at section 12304a that provides for treatment of an operation as a contingency operation when the Secretary of Defense activates Reserves under the terms of 10 U.S.C. 12304a in response to a Governor's request for Federal assistance in responding to a major disaster or emergency declared by the President.
The interim rule therefore added a reference to 10 U.S.C. 12304a (from section 515 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112–81)) to the list of references in section (2) of the definition of “contingency operation” in FAR 2.101, Definitions.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) reviewed the public comments in the development of the final rule.
Only one comment was received. The respondent indicated that it concurred with the interim rule. Therefore, no change to the interim rule was deemed necessary for the final rule.
Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
Expanding the definition of “contingency operation” to include responding to a Presidential declaration of a major disaster or emergency (as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)) will increase the circumstances under which “contingency operations” may be declared, thereby allowing defense and civilian agencies to raise thresholds (
Because “local businesses” may vary in size and business ownership, and the locations of disasters vary, we do not expect the amendment to have a direct and sustained economic impact on a substantial number of small entities. However, there is the possibility that, because the Robert T. Stafford Disaster Relief and Emergency Assistance Act provides for a preference for local organizations, firms, and individuals when contracting for major disaster or emergency activities, implementation of the revised definition for “contingency operation” may increase opportunities for awarding contracts to small entities located at or near major disaster areas or emergency activities.
In addition, FAR 19.502–2(a) requires simplified acquisitions during a contingency operation within the United States ($300,000 instead of $150,000) to be automatically reserved for small businesses (with the usual exceptions). The ability to restrict purchases up to two times the normal simplified acquisition threshold for small businesses will have a significant positive impact on small entities.
Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat. The Regulatory Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.
The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA have adopted as final, with minor changes, the interim rule amending the Federal Acquisition Regulation (FAR) to require certifications that implement the expansion of sanctions relating to the energy sector of Iran and sanctions with respect to Iran's Revolutionary Guard Corps, as contained in titles II and III of the Iran Threat Reduction and Syria Human Rights Act of 2012.
Ms. Cecelia L. Davis, Procurement Analyst, at 202–219–0202, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Please cite FAC 2005–69, FAR Case 2012–030.
DoD, GSA, and NASA published an interim rule in the
The public comment period closed on February 8, 2013. One respondent submitted a comment.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the comment in the development of the final rule. A discussion of the comment and the changes made to the rule as a result of the comment is provided as follows:
There are no significant changes to the FAR as a result of this final rule.
The final rule corrects the title of the Act at FAR 25.700(c) to read “Iran Threat Reduction and Syria Human Rights Act of 2012”. The final rule also corrects the Web site address at FAR 25.703–3 and 52.213–3 to read
Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Accordingly, the interim rule amending 48 CFR parts 4, 25, and 52, which was published in the
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
The revision reads as follows:
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to provide Governmentwide standardized past performance evaluation factors and performance rating categories and require that past performance information be entered into the Contractor Performance Assessment Reporting System (CPARS), the single Governmentwide past performance reporting system.
Mr. Curtis E. Glover, Sr., Procurement Analyst, at 202–501–1448, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Please cite FAC 2005–69, FAR Case 2012–009.
DoD, GSA, and NASA published a proposed rule in the
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:
The respondents considered that elimination of the appeals process would reduce contractor competition, increase the likelihood of disruptive and costly litigation, weaken the effectiveness of past performance review procedures, and undermine confidence in the process. One respondent noted that, even when the appeals process was not used, it acted as an important due-process protection for contractors. The availability of the appeals process, according to respondents, ensures that individual Government rater bias or lack of understanding of the complete program, not just contracting issues, can be brought out and addressed.
None of the respondents was of the opinion that eliminating the past performance evaluation appeals process would improve economy or efficiency. One respondent cited the statistic that 30 percent of its initial past performance
Another respondent advocated the wide release of past performance evaluations to the public.
One respondent advocated a revision to the rule that would permit the release of past performance information relating to late or nonpayment of subcontractors.
Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 8, 12, 15, 17, 42, and 49 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
Ordering activities must prepare at least annually and at the time the work under the order is completed, an evaluation of contractor performance for each order that exceeds the simplified acquisition threshold in accordance with 42.1502(c).
(c) * * *
(6) The contractor's past performance evaluations on other contract actions have been considered; and
(7) The contractor's performance on this contract has been acceptable,
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
This subpart provides policies and establishes responsibilities for recording and maintaining contractor performance information. This subpart does not apply to procedures used by agencies in determining fees under award or incentive fee contracts. See subpart 16.4. However, the fee amount paid to contractors should be reflective of the contractor's performance and the past performance evaluation should closely parallel and be consistent with the fee determinations.
(a) Past performance information (including the ratings and supporting narratives) is relevant information, for future source selection purposes, regarding a contractor's actions under previously awarded contracts or orders. It includes, for example, the contractor's record of—
(1) Conforming to requirements and to standards of good workmanship;
(2) Forecasting and controlling costs;
(3) Adherence to schedules, including the administrative aspects of performance;
(4) Reasonable and cooperative behavior and commitment to customer satisfaction;
(5) Reporting into databases (see subparts 4.14 and 4.15, and reporting requirements in the solicitation provisions and clauses referenced in 9.104–7);
(6) Integrity and business ethics; and
(7) Business-like concern for the interest of the customer.
(b) Agencies shall monitor their compliance with the past performance evaluation requirements (see 42.1502), and use the Contractor Performance Assessment Reporting System (CPARS) and Past Performance Information Retrieval System (PPIRS) metric tools to measure the quality and timely reporting of past performance information.
(a)
(b)
(c)
(d)
(i) Agencies shall promptly report other contractor information in accordance with 42.1503(h).
(a)(1) Agencies shall assign responsibility and management accountability for the completeness of past performance submissions. Agency procedures for the past performance evaluation system shall—
(i) Generally provide for input to the evaluations from the technical office, contracting office, program management office and, where appropriate, quality assurance and end users of the product or service;
(ii) Identify and assign past performance evaluation roles and responsibilities to those individuals responsible for preparing and reviewing interim evaluations, if prepared, and final evaluations (
(iii) Address management controls and appropriate management reviews of past performance evaluations, to include accountability for documenting past performance on PPIRS.
(2) If agency procedures do not specify the individuals responsible for past performance evaluation duties, the contracting officer is responsible for this function.
(3) Interim evaluations may be prepared as required, in accordance with agency procedures.
(b)(1) The evaluation should include a clear, non-technical description of the
(2) Evaluation factors for each assessment shall include, at a minimum, the following:
(i) Technical (quality of product or service).
(ii) Cost control (not applicable for firm-fixed-price or fixed-price with economic price adjustment arrangements).
(iii) Schedule/timeliness.
(iv) Management or business relations.
(v) Small business subcontracting (as applicable, see Table 42–2).
(vi) Other (as applicable) (
(3) Evaluation factors may include subfactors.
(4) Each factor and subfactor used shall be evaluated and a supporting narrative provided. Each evaluation factor, as listed in paragraph (b)(2) of this section, shall be rated in accordance with a five scale rating system (
(c)(1) When the contract provides for incentive fees, the incentive-fee contract performance evaluation shall be entered into CPARS.
(2) When the contract provides for award fee, the award fee-contract performance adjectival rating as described in 16.401(e)(3) shall be entered into CPARS.
(d) Agency evaluations of contractor performance, including both negative and positive evaluations, prepared under this subpart shall be provided to the contractor as soon as practicable after completion of the evaluation. The contractor will receive a CPARS-system generated notification when an evaluation is ready for comment. Contractors shall be given a minimum of 30 days to submit comments, rebutting statements, or additional information. Agencies shall provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation. The ultimate conclusion on the performance evaluation is a decision of the contracting agency. Copies of the evaluation, contractor response, and review comments, if any, shall be retained as part of the evaluation. These evaluations may be used to support future award decisions, and should therefore be marked “Source Selection Information”. Evaluation of Federal Prison Industries (FPI) performance may be used to support a waiver request (see 8.604) when FPI is a mandatory source in accordance with subpart 8.6. The completed evaluation shall not be released to other than Government personnel and the contractor whose performance is being evaluated during the period the information may be used to provide source selection information. Disclosure of such information could cause harm both to the commercial interest of the Government and to the competitive position of the contractor being evaluated as well as impede the efficiency of Government operations. Evaluations used in determining award or incentive fee payments may also be used to satisfy the requirements of this subpart. A copy of the annual or final past performance evaluation shall be provided to the contractor as soon as it is finalized.
(e) Agencies shall require frequent evaluation (
(f) Agencies shall prepare and submit all past performance evaluations electronically in the CPARS at
(g) Agencies shall use the past performance information in PPIRS that is within three years (six for construction and architect-engineer contracts) of the completion of performance of the evaluated contract or order, and information contained in the Federal Awardee Performance and Integrity Information System (FAPIIS),
(h)
(i) Issues a final determination that a contractor has submitted defective cost or pricing data;
(ii) Makes a subsequent change to the final determination concerning defective cost or pricing data pursuant to 15.407–1(d);
(iii) Issues a final termination for cause or default notice; or
(iv) Makes a subsequent withdrawal or a conversion of a termination for default to a termination for convenience.
(2) Agencies shall establish CPARS focal points who will register users to report data into the FAPIIS module of CPARS (available at
(3) With regard to information that may be covered by a disclosure exemption under the Freedom of Information Act, the contracting officer shall follow the procedures at 9.105–2(b)(2)(iv).
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement a section of the National Defense Authorization Act (NDAA) for Fiscal Year 2013. This section removes the sunset date for protests against certain orders under a task-order contract or delivery-order contract for title 10 agencies only.
Mr. Michael O. Jackson, Procurement Analyst, at 202–208–4949, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Please cite FAC 2005–69, FAR Case 2013–011.
DoD, GSA, and NASA are issuing this final rule to amend the FAR to implement section 830 of the 2013 NDAA (Pub. L. 112–239) enacted January 2, 2013, for agencies covered by title 10 of the United States Code, namely DoD, NASA, and Coast Guard. This section removes the sunset date for protests against the issuance or proposed issuance of an order, valued at more than $10 million, under a task-order contract or delivery-order contract for title 10 agencies only. The authority to protest the placement of such orders does not expire for DoD, NASA, and the Coast Guard. This rule does not affect title 41 agencies, which continue to have a sunset date of September 30, 2016.
“Publication of proposed regulations”, 41 U.S.C. 1707, is the statute which applies to the publication of the FAR. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operation procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment because this rule reflects the statutory elimination of the sunset date for protest for title 10 agencies. The FAR revision informs the acquisition community of this change.
Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant FAR revision and 41 U.S.C. 1707 does not require publication for public comment.
The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR part 16 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
(a) * * *
(10) * * *
(ii) The authority to protest the placement of an order under (a)(10)(i)(B) of this section expires on September 30, 2016, for agencies other than DoD, NASA, and the Coast Guard (41 U.S.C. 4103(d) and 41 U.S.C. 4106(f)). The authority to protest the placement of an order under (a)(10)(i)(B) of this section does not expire for DoD, NASA, and the Coast Guard.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement a revision by the United States Trade Representative (USTR) to the list of least developed countries that are designated countries under the Trade Agreements Act of 1979.
Ms. Cecelia L. Davis, Procurement Analyst, at 202–219–0202 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Please cite FAC 2005–69, FAR Case 2013–009.
19 U.S.C. 2511(b)(4) allows the President to designate least developed countries as eligible countries under the Trade Agreements Act of 1979, allowing non-discriminatory treatment of the products of such countries in acquisitions subject to the World Trade Organization Government Procurement Agreement. This statutory authority has been delegated to the USTR. The USTR selects the countries for such designation from the United Nations (UN) Least Developed Countries List. USTR consults with other government agencies on trade policy matters through the Trade Policy Review Group (TPRG) and the Trade Policy Staff Committee (TPSC). These changes are necessary to reflect the current UN Least Developed Countries List. Based on TPSC's approval on February 13, 2013, to incorporate the changes to the UN Least Developed Countries List, the USTR has revised the list of least developed countries that are designated as eligible countries as follows:
• Changed the name of East Timor to Timor-Leste, reflecting the change on the UN list.
• Removed the Maldives, which is no longer a least developed country.
• Added South Sudan, which seceded from Sudan to form an independent state on July 9, 2011, and was formally recognized as a least developed country by the UN in December 2012. Although the United States continues to impose sanctions against Sudan, South Sudan is not subject to sanctions.
This final rule revises the definitions of “designated country” and “least developed country” at various locations throughout the FAR (FAR 25.003, Definitions; FAR 52.225–5, Trade Agreements; FAR 52.225–11, Buy American Act—Construction Materials under Trade Agreements; and FAR 52.225–23, Required Use of American Iron, Steel, and Manufactured Goods—Buy American Act—Construction Materials Under Trade Agreements) and makes a conforming change to FAR 52.212–5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items.
“Publication of proposed regulations,” 41 U.S.C. 1707, is the statute that applies to the publication of the FAR. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it only revises the list of least developed countries that the USTR has designated as eligible for non-discriminatory treatment under the Trade Agreements Act. The addition of South Sudan and removal of the Maldives will have no significant effect beyond the internal operating procedures of the Government or a significant cost or administrative impact on contractors or offerors, because the trade of all 49 least developed countries combined accounts for less than 1 percent of the global trade according to United Nations data. Individual least developed countries generate an average of less than .02 percent of the global trade. Since we are adding one least developed country and removing one, the net effect is negligible.
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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant FAR revision and 41 U.S.C. 1707 does not require publication for public comment.
The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 25 and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
(b) * * *
__ (41) 52.225–5, Trade Agreements (Sep 2013) (19 U.S.C. 2501,
The revision reads as follows:
The revision reads as follows:
The revision reads as follows:
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to revise the biobased reporting clause to require the contractor to submit the annual biobased report to a new Governmentwide Web site instead of the agency environmental point of contact.
Ms. Marissa Petrusek, Procurement Analyst, at 202–501–0136, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Please cite FAC 2005–69, FAR Case 2013–006.
DoD, GSA, and NASA are revising the clause at FAR 52.223–2, Affirmative Procurement of Biobased Products Under Service and Construction Contracts, to reflect new reporting instructions for the annual biobased report; the reports will be submitted to a new Web site rather than to an agency point of contact.
For reporting in 2012, the Department of Agriculture provided a reporting site that was intended to be available for one year only. The Web site to be used for the annual Biobased reports due at the end of October 2013,
“Publication of proposed regulations”, 41 U.S.C. 1707, is the statute which applies to the publication of the Federal Acquisition Regulation. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because submission of the report was already required and changing the Web site to which the report is submitted will have no cost or other impact on contractors. These requirements affect only the internal operating procedures of the Government.
Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant FAR revision and 41 U.S.C. 1707 does not require publication for public comment.
The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR part 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
The revised text reads as follows:
(c) * * *
(1) Report to
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
This document makes amendments to the Federal Acquisition Regulation (FAR) in order to make editorial changes.
The Regulatory Secretariat Division (MVCB), 1800 F Street NW., 2nd Floor, Washington, DC 20405, 202–501–4755, for information pertaining to status or publication schedules. Please cite FAC 2005–69, Technical Amendments.
In order to update certain elements in 48 CFR parts 2, 22, 29, and 52, this document makes editorial changes to the FAR.
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 22, 29, and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
The revision reads as follows:
(b) * * *
(6) 52.209–6, Protecting the Government's Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment. (Aug, 2013) (31 U.S.C. 6101 note).
The revision reads as follows:
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Small Entity Compliance Guide.
This document is issued under the joint authority of DOD, GSA, and NASA. This
August 1, 2013.
For clarification of content, contact the analyst whose name appears in the table below. Please cite FAC 2005–69 and the FAR case number. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755.
Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these FAR cases, refer to the specific item numbers and subjects set forth in the documents following these item summaries. FAC 2005–69 amends the FAR as specified below:
This final rule amends, without change, the interim rule published in the
This final rule adopts the interim rule published in the
This rule amends FAR part 42 to provide Governmentwide standardized past performance evaluation factors and performance ratings, and to require all past performance information be entered into the Contractor Performance Assessment Reporting System (CPARS).
This change is required by statute, as well as by the Office of Federal Procurement Policy, which requested that FAR part 42 be revised to include recommendations from the Government Accountability Office Report GAO–09–374, Better Performance Information Needed to Support Agency Contract Award Decisions, to provide Governmentwide standardized evaluation factors and rating scales for the evaluation of contractor performance.
This rule specifically impacts contracting officers and contractors by clarifying the evaluation factors and performance ratings in the FAR. The rule also requires that all past performance information be entered into CPARS. The rule does not have a significant economic impact on small entities because the rule does not impose any additional requirements on small business.
This final rule revises the FAR to implement a section of the 2013 National Defense Authorization Act (Pub. L. 112–239) for agencies covered by title 10 of the United States Code, namely DoD, NASA, and Coast Guard. This section removes the sunset date for protests against the issuance or proposed issuance of an order, valued at more than $10 million, under a task-order contract or delivery-order contract for title 10 agencies only. This rule does not affect title 41 agencies.
This final rule amends the FAR in parts 25 and 52 to revise the definitions of “designated country” and “least developed country,” adding South Sudan, removing the Maldives, and changing the name of East Timor to Timor-Leste. The United States Trade Representative (USTR) list of least developed countries that are designated as eligible countries under the Trade Agreements Act is derived from the United Nations Least Developed Countries List. The USTR has updated the list of least developed countries that are treated as designated countries. In acquisitions that are covered by the World Trade Organization Government Procurement Agreement, contracting officers must acquire only U.S.-made or designated country end products, or U.S. or designated country services, unless offers of such end products or services are not received or are insufficient to fulfill the requirement (FAR 25.403(c)). This final rule will not have a significant economic impact on small entities.
This final rule amends the clause at FAR 52.223–2, Affirmative Procurement of Biobased Products Under Service and Construction Contracts, to replace the requirement for agencies to insert the agency environmental point of contact with a single Web site for contractors to submit the annual biobased report. The Web site has instructions and frequently asked questions.
Editorial changes are made at FAR 2.101, 22.1801, 29.401–3, 52.209–6, 52.212–5 and 52.222–54.