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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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In Title 12 of the Code of Federal Regulations, Parts 600 to 899, revised as of January 1, 2014, on page 242, in § 620.2, paragraph (e) is reinstated to read as follows:
(e) All items of essentially the same character as items required to be reported in the reports of condition and performance pursuant to part 621 of this chapter shall be prepared in accordance with the rules set forth in part 621.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 777–200, –200LR, –300, –300ER, and 777F series airplanes. This AD 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 AD requires revising the maintenance program to incorporate a revision to the Airworthiness Limitations Section of the maintenance planning data (MPD) document. We are issuing this AD to detect and correct failure of the engine fuel suction feed of the fuel system, which, in the event of total loss of the fuel boost pumps, could result in dual engine flameout, inability to restart the engines, and consequent forced landing of the airplane.
This AD is effective July 1, 2014.
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
You may examine the AD docket on the Internet at
Sue Lucier, Aerospace Engineer, Propulsion Branch, ANM–140S, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6438; fax: 425–917–6590; email:
We issued a second supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 777–200, –200LR, –300, –300ER, and 777F series airplanes. The second SNPRM published in the
We preceded the second SNPRM with the first SNPRM, which published in the
We preceded the first SNPRM with a notice of proposed rulemaking (NPRM) that published in the
We are issuing this AD to detect and correct failure of the engine fuel suction feed of the fuel system, which, in the event of total loss of the fuel boost pumps, could result in dual engine flameout, inability to restart the engines, and consequent forced landing of the airplane.
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the second SNPRM (78 FR 45898, July 30, 2013) and the FAA's response to each comment. FedEx concurs with the proposed requirements.
United Airlines (UAL) asked that we allow using the latest MPD revision of
We agree to give credit for the latest revision of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622W001–9, which is Revision dated June 2013; provided the revised “interval” specified in Appendix 1 of this AD is incorporated into the existing maintenance program within 90 days after the effective date of this AD. We have revised paragraph (i) of this AD accordingly.
Boeing asked that we clarify the reason for the unsafe condition identified in the second SNPRM (78 FR 45898, July 30, 2013). Boeing asked that we provide additional clarification that there are no reports of any in-service events on Model 777 airplanes.
We acknowledge the commenter's concern, but do not find it necessary to clarify the unsafe condition further. We clarified the reason for the unsafe condition in the first SNPRM (78 FR 45898, July 30, 2013) per a similar request from Boeing regarding the fact that there had been no events on Model 777 airplanes. In light of this, we find that further clarification is not necessary. We have made no change to the final rule in this regard.
We removed the on-condition costs specified in the “Costs of Compliance” section of this final rule because there are no on-condition actions.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed.
We estimate that this AD affects 676 airplanes of U.S. registry. We estimate the following costs to comply with this 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.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(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 amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 1, 2014.
None.
This AD applies to all The Boeing Company Model 777–200, –200LR, –300, –300ER, and 777F series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 2800, Aircraft Fuel System.
This AD 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. We are issuing this AD to detect and correct failure of the engine fuel suction feed of the fuel system, which, in the event of total loss of the fuel boost pumps, 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 the airworthiness limitation
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 (j) of this AD.
This paragraph provides credit for the actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using AWL No. 28–AWL–101, Engine Fuel Suction Feed Operational Test, of Section D.2., Engine Suction Fuel System, of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622W001–9, Revision February 2012, or Revision June 2013, of the Boeing 777 Maintenance Planning Data (MPD) Document, provided the revised “interval” specified in Appendix 1 of this AD is incorporated into the existing maintenance program within 90 days after the effective date 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.
(1) For more information about this AD, contact Sue Lucier, Aerospace Engineer, Propulsion Branch, ANM–140S, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6438; fax: 425–917–6590; email:
(2) For service information identified in this AD that is not incorporated by reference, 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
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 757–200, –200PF, –200CB, and –300 series airplanes. This AD was prompted by reports of cracking of the forward bulkhead web, web stiffeners, attachment angles, and thermal anti-ice (TAI) spray ring assemblies of the engine air intake cowl. This AD requires replacing the forward bulkhead assembly, TAI spray ring assembly, and attachment fittings of the air intake cowl. We are issuing this AD to prevent the failure of air intake cowl components due to cracking, which could result in the air intake cowl separating from the engine and striking critical airplane control surfaces that could result in a loss of airplane control; severe engine damage and loss of thrust; or large parts striking a person or property on the ground.
This AD is effective July 1, 2014.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 1, 2014.
For Rolls-Royce service information identified in this AD, contact Rolls-Royce plc, P.O. Box 31, Derby, DE24 8BJ, United Kingdom; telephone 011 44 1332 242424; fax 011 44 1332 249936; email
You may examine the AD docket on the Internet at
Kevin Nguyen, Aerospace Engineer, Propulsion Branch, ANM–140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: (425) 917–6501; fax: (425) 917–6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 757–200, –200PF, –200CB, and –300 series airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (77 FR 64242, October 19, 2012) and the FAA's response to each comment.
FedEx, American Airlines (AAL), and United Airlines (UAL) requested that we delay issuance of this final rule until the manufacturer can release service information that contains instructions for a modification as terminating action for the repetitive replacements proposed in the NPRM (77 FR 69242, October 19, 2012). In lieu of that, FedEx and AAL requested we include a modification as terminating action. FedEx and AAL stated that it would be more beneficial to accomplish the terminating modification rather than doing the interim replacements of the air intake cowl bulkhead assemblies or parts. UAL noted that airlines are working with Boeing to obtain improvements to the current design, which includes a three-part solution to most structural design deficiencies.
FedEx explained that Rolls-Royce was scheduled to release service information including a terminating modification for the repetitive replacements during the first quarter of 2013. UAL stated repetitive replacement of the forward bulkhead is expensive and does not solve the inherent design problem.
We partially agree. We agree that a terminating modification, if available, should be included as part of this final rule, because eliminating the in-service safety issue is a preferred choice over repetitive replacement of assemblies or parts.
However, we disagree with delaying issuance of this final rule until service information containing procedures for a terminating modification becomes available. We have not received an exact date for release of the planned Rolls-Royce service information. We have determined that to delay this final rule would be inappropriate, since we have determined that such a delay would not adequately address the unsafe condition in a timely manner and that replacing the forward bulkhead assembly components must be done to ensure continued safety. When the terminating modification becomes available, we might consider additional rulemaking. Operators may apply for approval of an alternative method of compliance (AMOC) for these actions in accordance with the provisions of paragraph (l) of
Rolls-Royce Group PLC (Rolls-Royce) requested that we refer to the latest service information: Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, Revision 1, dated September 28, 2012, which was issued to correct minor typographical errors. Rolls-Royce also requested that we allow credit for actions done previously using Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, dated October 14, 2011.
We agree to reference the latest service information and to allow credit for using certain previous revisions. We have updated paragraphs (g) and (h) of this final rule to reference Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, excluding Appendix 1 and including Appendices 2, 3, and 4, Revision 2, dated June 20, 2013, which corrects a certain air intake cowl serial number; and to reference Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 3, dated February 4, 2014, which corrects certain part numbers. We also have revised paragraph (i) of this final rule to allow credit for certain actions done before the effective date of this AD using Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, dated October 14, 2011; or Revision 1, dated September 28, 2012. We also have revised paragraph (i) of this final rule to allow credit for certain actions done before the effective date of this AD using Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 1, dated August 15, 2012; and Revision 2, dated December 5, 2012.
FedEx requested that this final rule be delayed until a part number in certain service information is corrected. FedEx stated that Appendix 3 of Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, dated October 14, 2011, called out part number LJ35477 for both “Angle ATT FWD Outer” and “Angle Attachment FWD Outer.” However, the correct part number for the latter part is LJ35478.
We do not agree to delay issuance of this final rule. However, we note that the part number error has already been corrected in Appendix 3 of Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, Revision 1, dated September 28, 2012; and Revision 2, dated June 20, 2013. We have updated paragraphs (g), (h), (j), and (k) of this final rule to reference Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, excluding Appendix 1 and including Appendices 2, 3, and 4, Revision 2, dated June 20, 2013; and Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 3, dated February 4, 2014; as the appropriate sources of service information for removing and replacing, with new parts, the forward bulkhead assembly, TAI spray ring assembly, and attachment fittings of the air intake cowl. Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 3, dated February 4, 2014, also includes corrected part number information: Part number LJ35479, with quantity two, was corrected to LJ50537 and LJ50538, with one quantity each; part number LJ35482 was corrected to LJ50535; and part number LJ35483 was corrected to LJ50536.
AAL and FedEx requested that certain service information be updated to allow the use of alternative rivets (fasteners) in place of obsolete “MS20426DD” fasteners. The commenters stated that service information should include suitable alternatives; however, the commenters did not propose suitable alternative fastener information.
We have confirmed with the parts manufacturer that the subject rivets (fasteners) are not obsolete, as indicated by the commenters. In addition, while we agree that it would be beneficial if the service information were to include acceptable alternative fastener information, in light of the urgency of the identified unsafe condition, we do not find it appropriate to delay this final rule to wait for additional revised service information. We included paragraph (l) in this final rule to provide operators a means to request approval of the use of an alternative fastener if sufficient data are presented that demonstrate the rivet (fastener) is a suitable alternative. We have not changed this final rule in this regard.
FedEx requested that the applicability in paragraph (c) of the NPRM (77 FR 69242, October 19, 2012) be revised to reference component part numbers and serial numbers, rather than specific airplanes. FedEx stated that the NPRM should apply to components rather than airplanes because the applicability of the NPRM, as written, will create confusion and will inhibit operator AD tracking capabilities.
We disagree with the commenter's request. According to FAA policy, if an unsafe condition results from the installation of a particular component in only one particular make and model of airplane, the AD would apply to the airplane model, not the component. The reason for this is simple: If the AD applies to the airplane model equipped with the item, operators of those airplanes will be notified directly of the unsafe condition and the action required to correct it. While we assume that operators can identify the airplane models they operate, they may not be aware of specific items installed on the airplanes. Therefore, specifying the airplane models in the applicability as the subject of the AD prevents an operator's “unknowing failure to comply” with the AD. In this case, the air intake cowls of the affected design with the identified unsafe condition are known to be confined to Model 757 airplanes; therefore, it is appropriate for the FAA to issue an airplane AD, not a component AD. We have not changed this final rule in this regard.
US Airways requested the NPRM (77 FR 69242, October 19, 2012) be revised to clarify actions for airplanes equipped with Pratt & Whitney engines.
We clarify that the applicability statement in paragraph (c) of this final rule only identifies Boeing Model 757–200, –200PF, –200CB, and –300 series airplanes equipped with certain Rolls-Royce engines. This final rule does not apply to airplanes equipped with Pratt & Whitney engines. No change has been made to this final rule in this regard.
UPS requested that the compliance times in the NPRM (77 FR 69242, October 19, 2012) be revised from calendar-based to cycle-based time for the replacement requirement. UPS noted that the NPRM requires replacement of forward bulkhead assemblies of air intake cowls at calendar date intervals based solely on the date of manufacture. UPS stated this requirement imposes unnecessary hardship and higher costs to low-utilization operators. UPS stated that since the issue is one of metal fatigue, a high-utilization operator will subject the same components to multiple times the fatigue exposures as a low-utilization operator over the same period.
UPS also stated that spare intake cowls that have never been in service—and therefore have not seen metal fatigue—are subject to the same calendar-based replacement intervals, and that this severely degrades the value
We disagree with the commenter's request to provide a cycle-based compliance time because UPS did not provide any data to support a particular cycle-based compliance time. Boeing and Rolls-Royce provided risk analyses and recommended corrective action based on a prescribed calendar-based compliance time. At the time we developed the NPRM (77 FR 69242, October 19, 2012), Boeing and Rolls-Royce stated there were no reliable data to support a risk analysis based on cycle and time usage, e.g., tracking (1) ownership of air intake cowls, (2) which airplane a particular engine air intake cowl had been installed on, (3) which engine a particular air intake cowl had been installed on, and (4) the cycle or time usage on a certain air intake cowl. Thus, Boeing and Rolls-Royce decided to manage the interim solution as a fleet risk, requiring replacements at a specific time based on the air intake cowl serial number.
However, if any operator has complete data on its air intake cowl usage and substantiating data to justify a cycle-based compliance time, then that operator may apply for approval of an AMOC in accordance with the provisions of paragraph (l) of this AD. We have not changed this final rule in this regard.
FedEx and US Airways requested we extend the proposed compliance time from 12 months to 24 months. Both suggested this revised compliance time be applied for the cowls having the oldest serial numbers (4001 through 4121). US Airways stated that the older cowls are likely to have had a recent shop visit in which damaged components have been detected and repaired. Both stated that neither the manufacturer nor overhaul vendors could provide kits or manpower to accomplish the tasks.
We infer that the commenters are referring to paragraph (h)(1) of the NPRM (77 FR 69242, October 19, 2012). We disagree with the requests to extend the specified compliance time since Rolls-Royce and Bombardier have verified that adequate parts and repair facility capacity are available to support the compliance time of this final rule. Paragraph (l) of this AD provides operators the opportunity to request approval of an AMOC if data are presented that prove an alternative compliance time will provide an acceptable level of safety. We have not changed this final rule in this regard.
AAL stated if the operator suspects the Bombardier Aerospace E4X STC was applied to the nose cowl, but the data plate does not reflect it, the operator should contact Bombardier to determine if that particular serial number nose cowl had the STC applied. AAL stated if the STC was done, then that date can be used as the initial accomplishment of the forward bulkhead replacement.
We disagree with the request. We infer from AAL's statement that AAL incorrectly assumes that Bombardier Aerospace STC ST02102NY (
However, for operators having sufficient repair records for the replacement of a forward bulkhead assembly, paragraph (l) of this AD provides the opportunity to request approval of an AMOC if data are presented to show that the work accomplished is equivalent to the applicable replacement required by this final rule. We have not changed this final rule in this regard.
Rolls-Royce and Boeing requested the compliance time specified in paragraph (g) of the NPRM (77 FR 69242, October 19, 2012) be modified by removing the phrase “or within 12 months after the effective date of this AD, whichever is later” and replacing it with a different compliance time.
Boeing stated that the risk assessment used to develop the compliance times did not account for any previous air intake cowl replacement and assumed all air intake cowls would be replaced by a phased compliance time.
Rolls-Royce stated that air intake cowls that previously had parts replaced with the applicable kits would only need to be replaced again within 144 months since the last replacement, or according to the phased compliance times specified in paragraph (h) of the NPRM (77 FR 69242, October 19, 2012), whichever is later. Rolls-Royce stated the compliance times specified in paragraph (g) of the NPRM would penalize the operators that had previously performed the required actions.
We agree with the commenters' requests to revise the specified compliance time. Operators that had previously replaced air intake cowl parts should not be penalized by having to comply with this AD sooner than operators that had not done any replacement. For consistency with the compliance time recommended by the manufacturer, we have removed the phrase “or within 12 months after the effective date of this AD, whichever is later” in paragraph (g) of this final rule and replaced it with the phrase “or according to the applicable time specified in paragraphs (h)(1) through (h)(12) of this AD, whichever is later.”
AAL and FedEx requested the NPRM (77 FR 69242, October 19, 2012) contain a statement about future repairs allowing operators the ability to do structural repairs of the forward bulkhead using OEM/owner/operator manuals and specifications using OEM/owner/operator manufactured replacement parts in the event of a premature forward bulkhead failure.
Clarification is needed regarding allowing operators to do future structural repairs of the forward bulkhead. We infer from the comments that the commenters are requesting to perform bulkhead repairs without the need to apply for approval of AMOCs to do those repairs. After accomplishing the actions required by this AD, future maintenance and/or preventive maintenance under 14 CFR part 43 is permitted provided the maintenance does not result in changing the AD-mandated configuration (reference 14 CFR 39.7).
For repairs that do change the AD-mandated configuration, paragraph (l)(3) of this AD allows repair methods to be approved by Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been
Boeing, FedEx, AAL, and US Airways requested we correct “535EX” cowls to “535E4X” cowls for referring to air intake cowls that have been modified using Bombardier Aerospace STC ST02102NY (
We agree. We have changed paragraphs (g), (g)(1), and (h) of this final rule to refer to “535E4X” cowls. In addition, we removed the introductory phrase that appeared in paragraph (i) of the NPRM (77 FR 69242, October 19, 2012), which included the incorrect cowl reference. However, because the Relevant Service Information section is not restated in the preamble of this final rule, we have not made any change to the preamble of this final rule in that regard.
AAL and FedEx requested a clear means of identifying E4X air intake cowls on which Bombardier Aerospace STC ST02102NY (
We infer from AAL's and FedEx's statements that, if air intake cowls modified by Bombardier Aerospace STC ST02102NY (
AAL requested that the referenced service information be revised to allow the use of undrilled parts in place of certain drilled parts. AAL noted that Bombardier has delivered kits that included the correct part with no pilot holes.
We do not agree to delay issuance of this final rule until revised service information can be approved and released. However, we agree with the commenter's request to allow use of undrilled parts. After our discussion with the manufacturers, we have determined the following parts are acceptable for use: undrilled attachment angles and attachment angle joints having a part number with a suffix `U'; undrilled attachment angles, attachment angle joints, diaphragm segments and reinforcing plate that have a trim allowance left, having a part number with a suffix `S'; and rib stiffeners, with pilot holes and trim allowance left, that have a part number with a suffix `S.' These separate/loose kit parts used for accomplishment of this final rule must be undrilled or with just the pilot holes present prior to modification. While accomplishing the repair, the final size holes must be drilled and, where applicable, the parts must be trimmed with reference to the removed parts or to the retained existing structure.
We have added a new paragraph (k) to this final rule to allow the use of certain undrilled parts, undrilled parts with trim allowance remaining, or parts with pilot holes and trim allowance remaining that are supplied as separate/loose kit parts, and that have a part number with an `S' or `U' suffix in place of the plain part number specified in Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, excluding Appendix 1 and including Appendices 2, 3, and 4, Revision 2, dated June 20, 2013; and Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 3, dated February 4, 2014. We have redesignated subsequent paragraphs accordingly.
Boeing and Rolls-Royce requested we remove the reference to “–535E4X” engines from paragraph (c) of the NPRM (77 FR 69242, October 19, 2012).
We agree with the commenters' request. There are no engines with a –535E4X designation. Therefore, we have removed the reference to –535E4X engines from paragraph (c) of this final rule.
Boeing requested we revise the NPRM (77 FR 69242, October 19, 2012) to reference the inlet cowl part number and serial number series instead of the Dyna-Rohr standard and the Bombardier standard when referring to the different inlet configurations in paragraphs (g)(2) and (g)(3) of the NPRM. Boeing stated this provides positive identification of the inlet configurations.
We disagree with the request. Proper identification of part and serial numbers will avoid confusion for compliance with this final rule. However, inserting all the specific part and serial numbers in this final rule would duplicate required information that is already contained in the referenced service information. No change has been made to this final rule in this regard.
US Airways requested we change the word “replace” to the word “repair” in the identification of affected airplanes in paragraph (g) of the NPRM (77 FR 69242, October 19, 2012). Also, US Airways requested we change the terms “replacement of the air intake cowl,” “replacement,” and “replace,” in multiple locations of the NPRM to “accomplishment of the applicable service bulletin on the inlet cowl.”
US Airways stated that the word “repair” is a more accurate description of the action taken on the inlet cowl to incorporate the referenced service information. US Airways stated that clarifying the wording would aid operators in tracking accomplishment of the NPRM (77 FR 69242, October 19, 2012), and added that the wording change would prevent confusion between requiring the replacement of the forward bulkhead parts versus replacement of the inlet cowl itself.
We partially agree. We disagree with changing the term “replaced” to “repaired” because that change in terminology is inaccurate. We agree that this final rule should be modified because accomplishment of the applicable service information on an air intake cowl addresses the unsafe condition. We, therefore, have revised paragraphs (g) and (h) of this final rule by adding the words, “replace the air intake cowl with a cowl which has had
UAL requested credit for work for previous inspections and repairs on affected cowls using Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG242 (no revision or date given). UAL stated this service information recommends an extension of 72 months for the initial repetitive replacement. UAL stated that over fifty percent of its inlets have been repaired or overhauled, and most air intake cowl inlets have had the bulkhead inspected and cracks repaired by replacement of individual structural parts.
We disagree. The only applicable and allowable service information for Model 757 airplanes with Rolls-Royce engines is Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698. Rolls-Royce has informed us that Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG242 was never officially published. We have not reviewed that service information to determine whether it is equivalent to Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698. Thus, we cannot provide credit for work that was accomplished using Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG242. For operators having sufficient repair records for the bulkhead assembly of an air intake cowl, paragraph (l) of this AD provides the opportunity to request approval of an AMOC if data are presented that show that previous work accomplished was equivalent to the work specified by Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698. We have not changed this final rule in this regard.
FedEx requested credit for any previous inspections or repairs by being allowed an extension of the compliance time proposed in the NPRM (77 FR 69242, October 19, 2012). FedEx stated that all of its inlet cowls had been inspected and any damage to inlet cowl bulkheads had been repaired during regular maintenance intervals.
We disagree with the commenter's request because we do not know if previous repairs or inspections are equivalent to the requirements specified by this final rule. For operators having sufficient repair records for the bulkhead assembly of an air intake cowl, paragraph (l) of this AD provides the opportunity to request approval of an AMOC if data are presented that show that previous work accomplished is equivalent to the work specified in Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698. We have not changed this final rule in this regard.
Rolls-Royce requested we revise the NPRM (77 FR 69242, October 19, 2012) to refer to the Rolls-Royce RB.211–71–AG698 publication as “Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698.”
We agree with the commenter's request because the service information includes the words “Alert Non-Modification” in the title. We have revised the title of the Rolls-Royce service information throughout this final rule accordingly. We have also changed the reference to the Bombardier RB211–E4–A1003 publication to “Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003,” in a similar manner, throughout this final rule.
FedEx and AAL requested that the NPRM (77 FR 69242, October 19, 2012) contain a general statement allowing the use of subsequent FAA-approved revisions of the service information as acceptable methods of compliance for the NPRM.
We disagree with the commenters' request. Allowing the use of 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. Affected operators may, however, request approval to use a later revision of referenced service information as an AMOC in accordance with the procedures specified in paragraph (l) of this final rule. We have not changed this final rule in this regard.
AAL and FedEx requested that warranty considerations be included in the Costs of Compliance of the NPRM (77 FR 69242, October 19, 2012) to remove the economic burden of the NPRM on the operators. AAL, UAL, and FedEx stated that the bulkhead is a flawed design. UAL stated that to replace the flawed bulkhead every 144 months with a bulkhead of the same flawed design is expensive and does not solve the inherent design problem. FedEx and AAL noted that the cost of parts kits purchased from Bombardier is unreasonably high, and that Bombardier charges higher costs for kits if an operator does not use Bombardier's services and facilities to perform the work. FedEx added that the NPRM (77 FR 69242, October 19, 2012) addresses a safety issue and that parts costs should not be governed by business tactics or profits.
We find that no change to the final rule is necessary in this regard. Warranties are not regulated by the FAA. We use manufacturer-quoted parts costs provided in referenced service information in our calculation of the Costs of Compliance. We are not aware of any warranty remedies for the actions required by this final rule.
Aviation Partners Boeing (APB) stated that accomplishing the supplemental type certificate STC ST01518SE (
We concur with the commenter. We have redesignated paragraph (c) of the NPRM as (c)(1) and added new paragraph (c)(2) to this final rule to state that the designation of (
We have changed paragraph (i) of this final rule to allow credit for actions done before the effective date of this AD using Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, dated October 14, 2011; and Revision 1, dated September 28, 2012.
Since we issued the NPRM (77 FR 69242, October 19, 2012), we have received updated service information from Bombardier. Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 3, dated February 4, 2014, corrects part number
We also revised paragraph (i) of this AD to allow credit for actions done previously using Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, dated June 27, 2012; Revision 1, dated August 15, 2012; and Revision 2, dated December 5, 2012, provided that where this service information specifies part number LJ35479, quantity of two, part numbers LJ50537 and LJ50538, quantity of one each, be used. Also, where this service information specifies part number LJ35482, use part number LJ50535, and where this service information specifies part number LJ35483, use part number LJ50536.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (77 FR 64242, October 19, 2012) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 64242, October 19, 2012).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We consider this AD interim action due to on-going investigation into the nature, cause, and extent of the cracking. If final action is later identified, based on the results of the investigation, we might consider further rulemaking then.
We estimate that this AD affects 332 airplanes of U.S. registry.
We estimate the following costs to comply with this 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.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(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 amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 1, 2014.
None.
(1) This AD applies to The Boeing Company Model 757–200, –200PF, –200CB, and –300 series airplanes, certificated in any category, equipped with Rolls-Royce RB211–535E4, –535E4–B, and –535E4–C engines; or with Rolls-Royce RB211–535E4, –535E4–B, and –535E4–C engines that have air intake cowls that were modified by Bombardier Aerospace Supplemental Type Certificate (STC) ST02102NY (
(2) Installation of supplemental type certificate (STC) ST01518SE (
Air Transport Association (ATA) of America Code 71, Powerplant.
This AD was prompted by reports of cracking of the forward bulkhead web, web stiffeners, attachment angles, and thermal
Comply with this AD within the compliance times specified, unless already done.
For airplanes on which the air intake cowls were replaced before the effective date of this AD using a kit or parts identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD: Within 144 months since replacement of the air intake cowl, or according to the applicable time specified in paragraphs (h)(1) through (h)(l2) of this AD, whichever is later, replace the air intake cowl with a cowl which has had the forward bulkhead assembly, TAI spray ring assembly, and associated attachment fittings of the air intake cowl replaced using a kit or new parts, in accordance with the Accomplishment Instructions of Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 3, dated February 4, 2014 (for engines with air intake cowls modified by Bombardier Aerospace STC ST02102NY (
(1) RB211–E4A1003KIT, or all the parts listed in Appendix 3 of Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 3, dated February 4, 2014 (for engines with air intake cowls modified by Bombardier Aerospace STC ST02102NY (
(2) RB211–71–AG698–E4KIT, or all the parts listed in Appendix 3 of Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, Revision 2, dated June 20, 2013 (for engines with Dyna-Rohr standard air intake cowls).
(3) RB211–71–AG698–E4BKIT, or all the parts listed in Appendix 4 of Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, Revision 2, dated June 20, 2013 (for engines with Bombardier standard air intake cowls).
For airplanes other than those identified in paragraph (g) of this AD: At the applicable time specified in paragraphs (h)(1) through (h)(12) of this AD, replace the air intake cowl with a cowl which has had the forward bulkhead assembly, TAI spray ring assembly, and associated attachment fittings of the air intake cowl replaced using a kit or new parts, in accordance with the Accomplishment Instructions of Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 3, dated February 4, 2014 (for engines with air intake cowls modified by Bombardier Aerospace STC ST02102NY (
(1) For airplanes with air intake cowls having serial numbers 4001 through 4121 inclusive: Replace within 12 months after the effective date of this AD.
(2) For airplanes with air intake cowls having serial numbers 4122 through 4241 inclusive: Replace within 24 months after the effective date of this AD.
(3) For airplanes with air intake cowls having serial numbers 4242 through 4361 inclusive: Replace within 36 months after the effective date of this AD.
(4) For airplanes with air intake cowls having serial numbers 4362 through 4481 inclusive: Replace within 48 months after the effective date of this AD.
(5) For airplanes with air intake cowls having serial numbers 4482 through 4484 inclusive: Replace within 60 months after the effective date of this AD.
(6) For airplanes with air intake cowls having serial numbers 9001 through 9117 inclusive: Replace within 60 months after the effective date of this AD.
(7) For airplanes with air intake cowls having serial numbers 9118 through 9237 inclusive: Replace within 72 months after the effective date of this AD.
(8) For airplanes with air intake cowls having serial numbers 9238 through 9357 inclusive: Replace within 84 months after the effective date of this AD.
(9) For airplanes with air intake cowls having serial numbers 9358 through 9477 inclusive: Replace within 96 months after the effective date of this AD.
(10) For airplanes with air intake cowls having serial numbers 9478 through 9597 inclusive: Replace within 108 months after the effective date of this AD.
(11) For airplanes with air intake cowls having serial numbers 9598 through 9717 inclusive: Replace within 120 months after the effective date of this AD.
(12) For airplanes with air intake cowls having serial numbers 9718 through 9786 inclusive: Replace within 132 months after the effective date of this AD.
(1) This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using the applicable service information specified in paragraphs (i)(1)(i) through (i)(1)(v) of this AD, which are not incorporated by reference in this AD.
(i) Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, dated October 14, 2011.
(ii) Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698,
Revision 1, dated September 28, 2012.
(iii) Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, dated June 27, 2012, except as required by paragraph (i)(2) of this AD.
(iv) Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 1, dated August 15, 2012, except as required by paragraph (i)(2) of this AD.
(v) Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 2, dated December 5, 2012, except as required by paragraph (i)(2) of this AD.
(2) Where Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, dated June 27, 2012; Revision 1, dated, August 15, 2012; or Revision 2, dated December 5, 2012; specifies part number LJ35479, quantity of two, use part numbers LJ50537 and LJ50538, quantity of one each. Where Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, dated June 27, 2012; Revision 1, dated, August 15, 2012; or Revision 2, dated December 5, 2012; specifies part number LJ35482, use part number LJ50535; and where the service information specifies part number LJ35483, use part number LJ50536.
Although Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 3, dated February 4, 2014; and Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, excluding Appendix 1 and including Appendices 2, 3, and 4, Revision 2, dated June 20, 2013; specify to submit certain information to the manufacturer, this AD does not include that requirement.
Where Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, excluding Appendix 1 and including Appendices 2, 3, and 4, Revision 2, dated June 20, 2013; and Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 3, dated February 4, 2014; specify part numbers that lack a suffix, this AD allows the use of parts specified in paragraphs (k)(1) through (k)(3) of this AD, but does not allow use of pre-drilled parts when they are sold or delivered as separate parts and are not part of a forward bulkhead assembly kit. The parts used for accomplishment of this AD must be undrilled, or must only have pilot holes present prior to the repair accomplishment. While accomplishing the repair, the final size holes must be drilled and, where applicable,
(1) Undrilled attachment angles and attachment angle joints having a part number with a suffix `U.'
(2) Undrilled attachment angles, attachment angle joints, diaphragm segments and reinforcing plate that have a trim allowance left, having a part number with a suffix `S.'
(3) Rib stiffeners, with pilot holes and trim allowance left, having a part number with a suffix `S.'
(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 paragraph (m)(1) 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 Kevin Nguyen, Aerospace Engineer, Propulsion Branch, ANM–140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: (425) 917–6501; fax: (425) 917–6590; email:
(2) Service information identified in this AD that is not incorporated by reference may be obtained at the addresses specified in paragraphs (n)(3), (n)(4), and (n)(5) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Bombardier Alert Non-Modification Service Bulletin RB211–E4–A1003, Revision 3, dated February 4, 2014.
(ii) Rolls-Royce Alert Non-Modification Service Bulletin RB.211–71–AG698, excluding Appendix 1 and including Appendices 2, 3, and 4, Revision 2, dated June 20, 2013. (The revision level of this document is identified in the transmittal pages only.)
(3) For Rolls-Royce service information identified in this AD, contact Rolls-Royce plc, P.O. Box 31, Derby, DE24 8BJ, United Kingdom; telephone 011 44 1332 242424; fax 011 44 1332 249936; email
(4) For Bombardier service information identified in this AD, contact Short Brothers, Airworthiness, P.O. Box 241, Airport Road, Belfast, BT3 9DZ, Northern Ireland; telephone +44(0)2890–462469; fax +44(0)2890–468444; Internet
(5) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington. For information on the availability of this material at the FAA, call 425–227–1221.
(6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain Airbus Helicopters Model AS332L1 and Model EC225LP helicopters. This AD requires relocating the power supply circuit breaker source of one engine's multi-purpose air intake (MPAI). This AD is prompted by a report that power loss to the MPAI could open the engine air intakes, which could result in engine ice ingestion during flight in icing conditions. These actions are intended to prevent ice ingestion by both engines, which could result in complete loss of engine thrust, and possible loss of control of the helicopter.
This AD becomes effective June 11, 2014.
The Director of the Federal Register approved the incorporation by reference of certain documents listed in this AD as of June 11, 2014.
We must receive comments on this AD by July 28, 2014.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
For service information identified in this AD, contact Airbus Helicopters, Inc., 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at
George Schwab, Aviation Safety
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2013–0173, dated August 1, 2013, to correct an unsafe condition for certain serial-numbered Eurocopter France (now Airbus Helicopters) Model AS 332 L1 and Model EC 225 LP helicopters. EASA advises that after a power generation failure, some helicopters equipped with electrical MPAIs would lose electrical power to the engine electro-valves that control inflation of the MPAI seals that close the engine air intakes. This power supply loss results in deflation or non-inflation of the MPAI seals on both engine air intakes. During flight in icing conditions, this condition could result in ice ingestion by the engines and a dual engine flame-out. To correct this unsafe condition, EASA AD No. 2013–0173 requires accomplishing Eurocopter modification (MOD) 332P083736.05 for Model AS 332 L1 helicopters, and MOD 332P083736.01 or MOD 332P083736.02, depending on the helicopter serial number, for Model EC225 LP helicopters. These MODs describe procedures for relocating the power supply circuit breaker of one engine's MPAI to an electrical bus that cannot be shut off in the event of battery powered emergency flight.
These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.
Eurocopter issued Alert Service Bulletin (ASB) No. AS332–30.00.74 for Model AS332L1 helicopters and ASB No. EC225–30A032 for Model EC225LP helicopters, both Revision 0 and dated July 31, 2013. ASB AS332–30.00.74 contains the procedures for Eurocopter MOD 332P083736.05, and ASB EC225–30A032 contains the procedures for Eurocopter MOD 332P083736.01 and MOD 332P083736.02. Each ASB specifies relocating one of the two electric MPAI power supply circuit breakers to a bus bar that cannot lose power during emergency flight under battery power only.
Before flying into known icing conditions, this AD requires complying with the manufacturer's service information to relocate an engine MPAI power supply circuit breaker. This AD also requires performing a functional test of each MPAI after relocating the MPAI power supply circuit breaker.
The EASA AD requires compliance within 110 flight hours. This AD requires compliance before any flight into known icing conditions, as the unsafe condition does not exist unless icing conditions are encountered concurrently with a dual generator or dual transformer-rectifier unit failure.
There are no costs of compliance with this AD because there are no helicopters affected by this AD on the U.S. Registry.
There are no helicopters affected by this AD on the U.S. Registry. Therefore, we believe it is unlikely that we will receive any adverse comments or useful information about this AD from U.S. Operators.
Since an unsafe condition exists that requires the immediate adoption of this AD, we determined that notice and opportunity for public comment before issuing this AD are unnecessary because there are none of these products on the U.S. Registry and that good cause exists for making this amendment effective in less than 30 days.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model AS332L1 helicopters, serial number (S/N) 2774, and Model EC225LP helicopters, S/N 2600, 2623, 2645, 2656, 2659, 2663, 2666, 2670, 2673, 2685, 2691, 2692, 2693, 2702, 2715, 2716, 2721, 2725, 2739, 2744, 2747, 2753, 2756, 2759, 2767, 2779, and 2794, certificated in any category.
This AD defines the unsafe condition as engine ice ingestion during flight, which could result in complete loss of engine thrust and possible loss of control of the helicopter.
This AD becomes effective June 11, 2014.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Before flight into known icing conditions:
(1) For Model AS332L1 helicopter, S/N 2774, relocate the engine 1 Multi-Purpose Air Intake (MPAI) power supply circuit breaker as described in the Accomplishment Instructions, paragraph 3.B.2., and Figures 1, 2, and 3 of Eurocopter Alert Service Bulletin (ASB) No. AS332–30.00.74, Revision 0, dated July 31, 2013.
(2) For Model EC225LP helicopters, S/N 2600, 2623, 2645, 2656, 2659, 2663, 2666, 2670, 2673, and 2693, relocate the engine 2 MPAI power supply circuit breaker as described in the Accomplishment Instructions, paragraph 3.B.2.a., and Figures 1 and 2 of Eurocopter ASB No. EC225–30A032, Revision 0, dated July 31, 2013.
(3) For Model EC225LP helicopters, S/N 2685, 2691, 2692, 2702, 2715, 2716, 2721, 2725, 2739, 2744, 2747, 2753, 2756, 2759, 2767, 2779, and 2794, relocate the engine 2 MPAI power supply circuit breaker as described in the Accomplishment Instructions, paragraph 3.B.2.b., and Figures 1 and 3 of Eurocopter ASB No. EC225–30A032.
(4) For all model helicopters, perform a functional test of each MPAI after relocating the MPAI power supply circuit breaker.
Special flight permits are prohibited for flights into known icing conditions.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: George Schwab, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222–5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2013–0173, dated August 1, 2013. You may view the EASA AD on the internet at
Joint Aircraft Service Component (JASC) Code: 3097: Ice/Rain Protection System Wiring.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Eurocopter Alert Service Bulletin No. AS332–30.00.74, Revision 0, dated July 31, 2013.
(ii) Eurocopter Alert Service Bulletin No. EC225–30A032, Revision 0, dated July 31, 2013.
(3) For Eurocopter service information identified in this AD, contact Airbus Helicopters, Inc., 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at
(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. For information on the availability of this material at the FAA, call (817) 222–5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies three Jet Routes (J–45, J–151, and J–233) and a high altitude area navigation (RNAV) route (Q–19). The FAA is taking this action due to a service restriction of the Des Moines, IA (DSM), VHF Omnidirectional Range (VOR)/Tactical Air Navigation (VORTAC) facility that provides navigation guidance for a portion of the ATS routes identified.
Colby Abbott, Airspace Policy and Regulations Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–8783.
On Wednesday, January 22, 2014, the FAA published in the
Subsequent to publication of the NPRM, an error in the J–233 route
This action amends Title 14, Code of Federal Regulations (14 CFR) part 71 by modifying Jet Routes J–45, J–151, and J–233, and high altitude RNAV route Q–19. The DSM, VOR radial restrictions have made this action necessary. The route modifications are outlined below.
The navigation aid radials cited in the proposed Jet Route and high altitude RNAV route descriptions below, are stated relative to True north.
Jet Routes are published in paragraph 2004 and high altitude RNAV routes (Q) are published in paragraph 2006, respectively, of FAA Order 7400.9X dated August 7, 2013, and effective September 15, 2013, which is incorporated by reference in 14 CFR 71.1. The Jet Routes and high altitude RNAV route listed in this document will be subsequently published in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is 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 the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the route structure as necessary to preserve the safe and efficient flow of air traffic within the NAS.
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.
From Virginia Key, FL; INT Virginia Key 014° and Treasure, FL, 143° radials; Treasure; INT Treasure 330° and Ormond Beach, FL, 183° radials; Ormond Beach; Craig, FL; Alma, GA; Macon, GA; Atlanta, GA; Nashville, TN; St Louis, MO; Kirksville, MO; Des Moines, IA; Sioux Falls, SD; to Aberdeen, SD.
From Cross City, FL; Vulcan, AL; Farmington, MO; St. Louis, MO; Kirksville, MO; Omaha, NE; O'Neil, NE; Rapid City, SD; Billings, MT; INT Billings 266° and Whitehall, MT, 103° radials; to Whitehall.
From St. Louis, MO; Kirksville, MO; to Waterloo, IA.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the description of Area G of the Philadelphia Class B airspace area to correct a design error that resulted in the Class B airspace boundary being published 2.1 nautical miles (NM) larger on the southeast side of the area than intended. There are no other changes to the Philadelphia Class B airspace area.
Effective date 0901 UTC, July 24, 2014. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Paul Gallant, Airspace Policy and Regulations Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–8783.
The FAA published in the
The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 to correct two points used to define the boundaries of Area G in the description of the Philadelphia Class B airspace area. Specifically, the point that reads “. . .the intersection of the PHL 20-mile radius and the 136° bearing from PHL. . .” is changed to read “. . .the intersection of the 17.9-mile radius and the 138° bearing from PHL. . . .” This point appears in two places in the Area G description. In addition, the point that reads “. . .the intersection of the PHL 20-mile radius and the 120° bearing from PHL. . .” is changed to read “. . .the intersection of the 20-mile radius and the 118° bearing from PHL. . . .” This point appears once in the Area G description. This change results in a small reduction in the lateral dimensions of Class B airspace, southeast of Philadelphia International Airport, near the Cross Keys Airport, NJ (17N). This action does not modify any other parts of the Philadelphia Class B airspace area.
Class B airspace areas are published in paragraph 3000 of FAA Order 7400.9X dated August 7, 2013, and effective September 15, 2013, which is incorporated by reference in 14 CFR 71.1. The Class B airspace area listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it makes editorial corrections to an existing Class B airspace description to maintain accuracy.
Changes to federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Public Law 96–354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96–39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this
In conducting these analyses, the FAA has determined that this final rule:
(1) Imposes minimal incremental costs and provides benefits;
(2) Is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866;
(3) Is not significant as defined in DOT's Regulatory Policies and Procedures;
(4) Will not have a significant economic impact on a substantial number of small entities;
(5) Will not have a significant effect on international trade; and
(6) Will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the monetary threshold identified.
These analyses are summarized below.
This final rule action modifies the Philadelphia, PA, Class B airspace area by reducing the size of Area G in the description of the Philadelphia Class B airspace area.
Reducing the size of the Class B airspace area increases the airspace available to aircraft that do not need to use Class B airspace.
The final rule action has no costs.
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. There the FAA has determined that this final rule is not a “significant regulatory action “as defined in Section 3(f) of Executive 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.
The FAA received no comments on the regulatory evaluation for the NPRM.
The Regulatory Flexibility Act of 1980 (Pub. L. 96–354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
This final rule is a routine matter that only affects air traffic procedures and air navigation and has no costs.
The FAA received no comments on the Initial Regulatory Determination, accepts the determination of no significant economic impact. Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96–39), as amended by the Uruguay Round Agreements Act (Pub. L. 103–465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.
The FAA received no comments on the proposed determination of no impact. Therefore, the FAA has determined that this final rule will have no impact on international trade because it reduces Class B airspace in the Philadelphia area.
Title II of the Unfunded Mandates Reform Act of 1995 (Public Law 104–4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $151.0 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
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 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.
Boundaries.
By removing the current description of Area G and adding in its place:
Area G. That airspace extending upward from 3,500 feet MSL to and including 7,000 feet MSL within a 20-mile radius of PHL, excluding that airspace south of a line beginning at the intersection of the PHL 20-mile radius and the 158° bearing from PHL, thence direct to the intersection of the PHL 17.9-mile radius and the 138° bearing from PHL, and that airspace bounded by a line beginning at the intersection of the PHL 17.9-mile radius and the 138° bearing from PHL, thence direct to the intersection of the PHL 15-mile radius and the 141° bearing from PHL, thence direct to the intersection of the Cross Keys Airport (17N) 1.5-mile radius and the 212° bearing from 17N, thence clockwise via the 1.5-mile radius of 17N to the 257° bearing from 17N, thence direct to the intersection of the 17N 1.5-mile radius and the 341° bearing from 17N, thence clockwise via the 1.5-mile radius of 17N to the 011° bearing from 17N, thence direct to the intersection of the PHL 15-mile radius and the 127° bearing from PHL, thence direct to the intersection of the PHL 20-mile radius and the 118° bearing from PHL, and Areas A, B, C, D, E and F.
Bureau of Industry and Security, Commerce.
Final rule.
The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to reflect changes to the Missile Technology Control Regime (MTCR) Annex that were agreed to by MTCR member countries at the October 2013 Plenary in Rome, Italy, and at the 2013 Technical Experts Meeting in Bonn, Germany. This final rule revises eight Export Control Classification Numbers (ECCNs), adds one new ECCN and lastly revises two defined terms (the definition of “payload” and “repeatability”) to implement the changes that were agreed to at the meetings.
This rule is effective: May 27, 2014.
Sharon Bragonje, Nuclear and Missile Technology Controls Division, Bureau of Industry and Security, Phone: (202) 482–0434; Email:
The MTCR is an export control arrangement among 34 nations, including most of the world's suppliers of advanced missiles and missile-related equipment, materials, software and technology. The regime establishes a common list of controlled items (the Annex) and a common export control policy (the Guidelines) that member countries implement in accordance with their national export controls. The MTCR seeks to limit the risk of proliferation of weapons of mass destruction by controlling exports of goods and technologies that could make a contribution to delivery systems (other than manned aircraft) for such weapons.
In 1992, the MTCR's original focus on missiles for nuclear weapons delivery was expanded to include the proliferation of missiles for the delivery of all types of weapons of mass destruction (WMD), i.e., nuclear, chemical and biological weapons. Such proliferation has been identified as a threat to international peace and security. One way to counter this threat is to maintain vigilance over the transfer of missile equipment, material, and related technologies usable for systems capable of delivering WMD. MTCR members voluntarily pledge to adopt the regime's export Guidelines and to restrict the export of items contained in the regime's Annex. The implementation of the regime's Guidelines is effectuated through the national export control laws and policies of the regime members.
This final rule revises the EAR to reflect changes to the MTCR Annex agreed to at the October 2013 Plenary in Rome, Italy, and at the 2013 Technical Experts Meeting in Bonn, Germany. Corresponding MTCR Annex references are provided below for the MTCR Annex changes agreed to at the meetings. In the explanation below for the revisions made in this rule, BIS identifies these changes as follows: “Rome 2013 Plenary” and “Bonn 2013 TEM” to assist the public in understanding the origin of each change included in this final rule.
In section 772.1 (Definitions of Terms as Used in the Export Administration Regulations) this final rule amends the definition of the term “payload” (MTCR Annex Change, Definitions: “Payload,” Bonn 2013 TEM). The definition of “payload” is revised by adding the phrase “and separation systems” to the end of the description for space launch vehicles in Technical Note (b.2). This control changes the definition of “payload” for space launch vehicles to specifically identify separation systems. This is a clarification and will not change any scope of control. This change is not expected to have any impact on the number of license applications received by BIS.
In addition, in section 772.1, this final rule amends the definition of the term “repeatability” (MTCR Annex Change, Category II: Item 9.A.3., Rome 2013 Plenary). This final rule adds the phrase “for Inertial Sensor Terminology” after the phrase “IEEE Standard” to add more description regarding the standard being referenced. In addition, after the standard number 528–2001, this final rule adds the phrase “in the Definitions section paragraph 2.214 titled repeatability (gyro, accelerometer).” These changes are not substantive and are limited to assisting the public in more easily identifying the standards being referenced in the “repeatability” definition. This change is not expected to have any impact on the number of license applications received by BIS.
In addition, this rule amends the Commerce Control List (CCL) to reflect changes to the MTCR Annex. Specifically, the following nine ECCNs are affected:
Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or en route aboard a carrier to a port of export or reexport, on May 27, 2014, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR) so long as they are exported or reexported before June 26, 2014. Any such items not actually exported or reexported before midnight, on June 26, 2014, require a license in accordance with this rule.
Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 8, 2013, 78, 2013, 78 FR 49107(August 12, 2013), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be significant for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Immediate implementation of these amendments fulfills the United States' international commitments to the MTCR. The MTCR contributes to international peace and security by promoting greater responsibility in transfers of missile technology items that could make a contribution to delivery systems (other than manned aircraft) for weapons of mass destruction. The MTCR consists of 34 member countries that act on a consensus basis and the changes set forth in this rule implement agreements reached by MTCR member countries at the October 2013 Plenary in Rome, Italy. Since the United States is a significant exporter of the items in this rule, implementation of this provision is necessary for the MTCR to achieve its purpose. Moreover, it is in the public's interest to waive the notice and comment requirements, as any delay in implementing this rule will disrupt the movement of affected items globally because of disharmony between export control measures implemented by MTCR members, resulting in tension between member countries. Export controls work best when all countries implement the same export controls in a timely manner. If this rulemaking were delayed to allow for notice and comment and a 30 day delay in effectiveness, it would prevent the United States from fulfilling its commitment to the MTCR in a timely manner, would injure the credibility of the United States in this and other multilateral regimes, and may impair the international communities' ability to effectively control the export of certain potentially national- and international-security-threatening materials.
Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Exports.
Exports, Reporting and recordkeeping requirements.
Accordingly, parts 772 and 774 of the Export Administration Regulations (15 CFR parts 730–774) are amended as follows:
50 U.S.C. app. 2401
NOTE: * * *
TECHNICAL NOTES:
a. * * *
b. Space Launch Vehicles—“Payload” includes:
1. * * *
2. Spacecraft-to-launch vehicle adapters including, if applicable, apogee/perigee kick motors or similar maneuvering systems and separation systems;
* * *
50 U.S.C. app. 2401
a. Metal powder “production equipment” usable for the “production”, in a controlled environment, of spherical, spheroidal or atomized materials specified in 1C011.a., 1C011.b., 1C111.a.1., 1C111.a.2., or controlled for MT reasons in Category V of the USML.
List of Items Controlled
b. At least one `mixing/kneading shaft' mounted off center.
In 1B117.b. the term ‘mixing/kneading shaft’ does not refer to deagglomerators or knife-spindles.
a. Gravity meters having all the following:
1. A static or operational accuracy equal to or less (better) than 0.7 milligal (mgal); and
2. A time to steady-state registration of two minutes or less.
b. Gravity gradiometers.
a. * * *
a.2. Specific fuel consumption of 0.15 kg N
The list of items controlled is contained in the ECCN heading.
For the purposes of 9A102 a ‘turboprop engine system’ incorporates all of the following:
a.
b.
a. * * *
a.2. Incorporating, or designed or modified to incorporate, a shaker unit or other vibration test equipment to produce vibration environments equal to or greater than 10 g rms, measured `bare table', between 20 Hz and 2 kHz while imparting forces equal to or greater than 5 kN;
Coast Guard, DHS.
Interim final rule; request for comments.
The Coast Guard is amending its special local regulations and safety zones established for recurring marine events and fireworks displays that take place within the Fifth Coast Guard District area of responsibility. This interim final rule revises the listing of events that informs the public of regularly scheduled marine parades, regattas, other organized water events, and fireworks displays that require additional safety measures provided by regulations. Through this interim final rule, the current list of recurring marine events requiring special local regulations or safety zones is updated with revisions, additional events, and removal of events that no longer take place in the Fifth Coast Guard District area of responsibility. When these special local regulations and safety zones are enforced, certain restrictions are placed on marine traffic in specified areas. Additionally, this rulemaking project promotes efficiency by eliminating the need to produce a separate rule for each individual recurring event, and serves to provide notice of the known recurring events requiring a special local regulation or safety zone throughout the year.
This rule is effective without actual notice from May 27, 2014. For the purposes of enforcement, actual notice will be used from the date the rule was signed, May 12, 2014, until May 27, 2014. Comments and related material must be received by the Coast Guard on or before June 26, 2014.
Documents mentioned in this preamble are part of Docket Number USCG–2014–0095. To view documents mentioned in this preamble as being available in the docket, go to
You may submit comments, identified by docket number, using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
If you have questions on this rule, call or email Dennis Sens, Fifth Coast Guard District, Prevention Division, (757) 398–6204,
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under
The special local regulations listed in 33 CFR 100.501 and safety zones in 33 CFR 165.506 were last amended on May 21, 2013, (78 FR 29629). The Coast Guard is issuing this interim final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”
Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because immediate action is necessary to protect the maritime public during certain marine events. The potential dangers posed by certain marine events and fireworks displays conducted on waterways in close proximity to other vessel traffic makes special local regulations and safety zones necessary to provide for the safety of participants, spectator craft, and other vessels transiting the event area. Accordingly, waiting for a comment period to run would be contrary to the public interest of protecting life and property. In addition, publishing an NPRM is impracticable because the necessary information regarding these annual recurring marine events and fireworks displays was not available in sufficient time to ensure accurate and up to date listings to allow for a comment period prior to the events.
For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
This interim rule is effective upon publication without prior notice through publication in the
This interim rule, prepared to provide the most up to date list of recurring marine events, special local regulations and safety zones, provides ample notice for all listed events occurring after July 2014. Additionally, these recurring events are noticed to the public through local media and planned on by the local communities in which they take place.
The current lists of annual and recurring special local regulations and safety zones for marine events and fireworks displays within the Fifth Coast Guard District area of responsibility (AOR) are published under 33 CFR 100.501 and 165.506, respectively. These lists were last updated May 21, 2013 through a previous rulemaking (78 FR 29629), and generated no adverse comments. Like this interim rule, the May 2013 rule added to, removed from, and amended 33 CFR 100.501 and 33 CFR 165.506 to create a comprehensive list of recurring marine events and fireworks displays requiring special local regulations and safety zones.
The Coast Guard is amending and updating the list of permanent special local regulations at 33 CFR 100.501 and safety zones at 33 CFR 165.506, established for recurring marine events and fireworks displays at various locations within the geographic boundary of the Fifth Coast Guard District. The Fifth Coast Guard District AOR is defined in 33 CFR 3.25.
Publishing these regulatory updates in a single rulemaking promotes efficiency and provides the public with notice through publication in the
This rule adds 2 new marine events with special local regulations, removes 2 events, and revises 10 previously established marine events in the Table to § 100.501.
The two newly added marine events to 33 CFR 100.501 affect the Middle River, Essex, MD and the Atlantic Ocean, Ocean City, MD. The two removed events no longer listed in 33 CFR 100.501 are the Tri Rock Triathlon, Annapolis, MD, and the Virginia Beach, VA, Hydroplane Races. The 10 existing
Based on the nature of marine events, large number of participants and spectators, and event locations, the Coast Guard has determined that the events listed in this rule could pose a risk to participants or waterway users if normal vessel traffic were to interfere with the event. Possible hazards include risks of participant injury or death resulting from near or actual contact with non-participant vessels traversing through the regulated areas. In order to protect the safety of all waterway users including event participants and spectators, this rule establishes special local regulations for the time and location of each marine event.
This rule prevents vessels from entering, transiting, mooring or anchoring within areas specifically designated as regulated areas during the periods of enforcement unless authorized by the Captain of the Port (COTP), or designated Coast Guard Patrol Commander. The designated “Patrol Commander” includes Coast Guard commissioned, warrant, or petty officer who has been designated by the COTP to act on their behalf. On-scene patrol commander may be augmented by local, State or Federal officials authorized to act in support of the Coast Guard.
This rule adds 2 new events with safety zones, and revises 17 previously established safety zones from the Table to § 165.506. The two newly added safety zones are for fireworks events on the Patapsco River, Baltimore Harbor, Baltimore, MD and on the Atlantic Intra Coastal Waterway, Swansboro, NC. The 17 revisions to existing safety zones in 165.506 involve changes to event date(s) and coordinates. These revised safety zones are shown in Table 2, with reference by section as printed in the Table to § 165.506.
Each year, organizations in the Fifth Coast Guard District sponsor fireworks displays in the same general location and time period. Each event uses a barge or an on-shore site near the shoreline as the fireworks launch platform. A safety zone is used to control vessel movement within a specified distance surrounding the launch platforms to ensure the safety of persons and property. Coast Guard personnel on scene may allow boaters within the safety zone if conditions permit.
The enforcement period for these safety zones is from 5:30 p.m. to 1 a.m. local time. However, vessels may enter, remain in, or transit through these safety zones during this time frame if authorized by the COTP or designated Coast Guard patrol personnel on scene, as provided for in 33 CFR 165.23. This rule provides for the safety of life on navigable waters during the events.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
We expect the economic impact of this interim final rule to be so minimal that a full Regulatory Evaluation is unnecessary. This finding is based on the short amount of time that vessels will be restricted from regulated areas, and the small size of these areas that are typically positioned away from high vessel traffic zones. Generally vessels would not be precluded from getting underway, or mooring at any piers or marinas currently located in the vicinity of the regulated areas. Advance notifications would also be made to the local maritime community by issuance of Local Notice to Mariners, Broadcast Notice to Mariners, Marine information and facsimile broadcasts so mariners can adjust their plans accordingly. Notifications to the public for most events will usually be made by local newspapers, radio and TV stations. The Coast Guard anticipates that these special local regulated areas and safety zones will only be enforced one to three times per year.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities some of which may be small entities: The owners and operators of vessels intending to transit or anchor in these regulated areas during the times the zones are enforced.
These special local regulated areas and safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: The Coast Guard will ensure that small entities are able to operate in the areas where events are occurring to the extent possible while ensuring the safety of event participants and spectators. The enforcement period will be short in duration and, in many of the areas, vessels can transit safely around the regulated area. Generally, blanket permission to enter, remain in, or transit through these regulated areas will be given, except during the period that the Coast Guard patrol vessel is present. Before the enforcement period, we will issue maritime advisories widely.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule 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.
We have analyzed this rule under Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment.
This rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the navigable waters of the United States. Some marine events by their nature may introduce potential for adverse impact on the safety or other interest of waterway users or waterfront infrastructure within or close proximity to the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, and sail board racing. This section of the rule is categorically excluded from further review under paragraph 34(h) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are not required for this section of the rule.
This rule involves implementation of regulations at 33 CFR Part 165 that establish safety zones on navigable waters of the United States for fireworks events. These safety zones are enforced for the duration of fireworks display events. The fireworks are generally launched from or immediately adjacent to navigable waters of the United States. The category of activities includes fireworks launched from barges or at the shoreline that generally rely on the use of navigable waters as a safety buffer. Fireworks displays may introduce potential hazards such as accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. This section of the rule is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 and 165 as follows:
33 U.S.C. 1233.
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the Biotechnology Industry Organization firework display safety zone on June 23, 2014. This marine event occurs on the navigable waters of San Diego Bay, immediately to the west of the USS MIDWAY, in San Diego, California. This action is necessary to provide for the safety of the participants, crew, spectators, safety vessels, and general users of the waterway. During the enforcement period, persons and vessels are prohibited from entering into, transiting through, or anchoring within this regulated area unless authorized by the Captain of the Port, or his designated representative.
This rule is effective from 8:15 p.m. to 8:45 p.m. on June 23, 2014.
If you have questions on this notice, call or email Petty Officer Giacomo Terrizzi, Waterways Management, U.S. Coast Guard Sector San Diego, CA; telephone (619) 278–7261, email
The Coast Guard will enforce the safety zone in San Diego Bay for the Biotechnology Industry Organization fireworks display in 33 CFR 165.1123, Table 1, Item 6 from 8:15 p.m. to 8:45 p.m. on June 23, 2014.
Under the provisions of 33 CFR 165.1123, persons and vessels are prohibited from entering into, transiting through, or anchoring within the 600 foot regulated area safety zone the tug and barge unless authorized by the Captain of the Port, or his designated representative. Persons or vessels desiring to enter into or pass through the safety zone may request permission from the Captain of the Port or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the Captain of the Port or designated representative. Spectator vessels may safely transit outside the regulated area, but may not anchor, block, loiter, or impede the transit of participants or official patrol vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
This notice is issued under authority of 5 U.S.C. 552(a) and 33 CFR 165.1123. In addition to this notice in the
If the Captain of the Port Sector San Diego or his designated representative determines that the regulated area need not be enforced for the full duration stated on this notice, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.
Department of Veterans Affairs.
Final rule.
This document adopts as a final rule, without change, an interim final rule amending the Department of Veterans Affairs (VA) medical regulations to freeze the copayments required for certain medications provided by VA until December 31, 2014. Under that rule, the copayment amounts for all veterans were maintained at the same rates as they were in 2013, which were $8 for veterans in priority groups 2–6 and $9 for veterans in priority groups 7 and 8. On January 1, 2015, the copayment amounts may increase based on the prescription drug component of the Medical Consumer Price Index (CPI–P).
Kristin Cunningham, Director, Business Policy, Chief Business Office, 810 Vermont Avenue NW., Washington, DC 20420, (202) 382–2508. (This is not a toll-free number.)
An interim final rule amending VA's medical regulations concerning the copayment required for certain medications was published in the
In accordance with 5 U.S.C. 553(b)(B) and (d)(3), the Secretary of Veterans Affairs concluded that there was good cause to publish this rule without prior opportunity for public comment and to publish this rule with an immediate effective date. The Secretary found that it was impracticable and contrary to the public interest to delay this rule for the purpose of soliciting advance public comment or to have a delayed effective date. Increasing the copayment amount on January 1, 2014, might have caused a significant financial hardship for some veterans and may have decreased patient adherence to medical plans, resulting in other unpredictable negative health effects. Nevertheless, the Secretary invited public comment on the interim final rule but did not receive any comments.
Title 38 of the Code of Federal Regulations, as revised by this final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.
This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3521).
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”
The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined that it may be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at
This regulatory action may have been considered a major rule under the Congressional Review Act, 5 U.S.C. 801–08, because it may have resulted in an annual effect on the economy of $100 million or more. Although this regulatory action may have constituted a major rule within the meaning of the Congressional Review Act, 5 U.S.C. 804(2), it was not subject to the 60-day delay in effective date applicable to major rules under 5 U.S.C. 801(a)(3) because the Secretary found that good cause existed under 5 U.S.C. 808(2) to make this regulatory action effective on January 1, 2014, consistent with the reasons given for the publication in the interim final rule. Increasing the copayment amount on January 1, 2014, might have caused a significant financial hardship for some veterans and may have decreased patient adherence to medical plans, and could have had other unpredictable negative health effects. Accordingly, the Secretary found that additional advance notice and public procedure thereon were impractical, unnecessary, and contrary to the public interest. In accordance with 5 U.S.C. 801(a)(1), VA submitted to the Comptroller General and to Congress a copy of this regulatory action and VA's Regulatory Impact Analysis (RIA).
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are as follows: 64.005, Grants to States for Construction of State Home Facilities; 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem Program.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Jose D. Riojas, Chief of Staff, Department of Veterans Affairs, approved this document on May 19, 2014, for publication.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs—health, Grant programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.
Based on the rationale set forth in the interim final rule published in the
Environmental Protection Agency (EPA).
Final rule; notice of administrative change.
The Environmental Protection Agency (EPA) is approving the removal/revision to over 30 provisions in the Code of Federal Regulations (CFR) in the Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina and Tennessee State Implementation Plan (SIP) subparts because they are unnecessary or obsolete. This action makes no substantive changes to these SIPs and imposes no new requirements. Removal of outdated material from the air program subparts for these states is non-substantive in nature and is designed to improve cost effectiveness and usability of the CFR. This action also updates certain provisions by correcting state agencies' office addresses and correcting CFR publication errors in two provisions.
This final rule is effective May 27, 2014.
Sean Lakeman of the Regulatory Development Section, in the Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Mr. Lakeman may be reached by phone at (404) 562–9043, or via electronic mail at
This action is a “housekeeping” exercise that is being taken pursuant to Executive Order 13563—Improving Regulation and Regulatory Review. One aspect of this action involves an effort to reduce the number of pages in the CFR by identifying those provisions in 40 CFR part 52 that are duplicative, outdated or obsolete. This action pertains to eight subparts in 40 CFR part 52 for eight states. Those eight states are Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina and Tennessee.
EPA is removing/revising provisions from these states' subparts of 40 CFR part 52 because they are outdated or obsolete in whole or in part. This action also revises certain CFR provisions by correcting state agencies' office addresses and correcting CFR publication errors in two provisions. One aspect of EPA's action, affecting all eight states, removes historical information found in the “Original Identification of plan” sections in 40 CFR part 52. These paragraphs are no longer necessary because EPA promulgated summary tables to replace these paragraphs in previous administrative actions that are described in more detail below. These summary tables describe the regulations, source-specific actions, and non-regulatory requirements which comprise the SIPs for the eight states.
Although this action will remove outdated or obsolete information from future CFR publications, this historical information will continue to be available in the CFR annual editions, Title 40 part 52 (years 1999 through 2012). These annual editions are available on line at the following Uniform Resource Locator (url) address:
EPA has reviewed the subpart for each of the states and has identified provisions that should be removed or clarified for the reasons set forth as follows:
Paragraph 52.53, the third sentence states, “In addition, continued satisfaction of the requirements of part D for the ozone portion of the SIP depends on the adoption and submittal of reasonably available control technology (RACT) requirements by July 1, 1980 for the sources covered by control technique guidelines (CTGs) issued between January 1978 and January 1979 and adoption and submittal by each subsequent January of additional RACT requirements for sources covered by CTGs issued by the previous January.” This sentence is obsolete. It is being removed because the current ozone portion of the State's implementation plan is subject to the 1990 Clean Air Act (CAA or Act), and the State has no further obligation to adopt and submit CTG based RACT requirements under the 1977 CAA.
Paragraph 52.56 refers to conditional approval of Alabama's Nonattainment New Source Review (NSR) program based on a commitment that Alabama submit necessary corrections by March 9, 1984. Section 110(k)(4) of the CAA limits the duration of conditional approvals, i.e., the State is required to adopt the required revisions by no later than one year of the issuance of the conditional approval. However, on November 2, 1983, EPA postponed calling for the regulatory changes required under the conditional approval.
Paragraph 52.66 describes the disapproval of Alabama's March 16, 1995, redesignation request for the Birmingham marginal 1-hour ozone nonattainment area and required Alabama to submit an attainment demonstration by April 27, 2001. This paragraph is obsolete and is being removed because EPA has subsequently redesignated Birmingham for the 1-hour and 8-hour ozone national ambient air quality standards (NAAQS).
Paragraphs 52.69(b) and (c) of this section contains historical information only about EPA's approval actions for the Alabama SIP which occurred between May 31, 1972, and December 1, 1998. On December 22, 1998 (63 FR 70669), EPA reorganized the Identification of plan section in subpart B by moving the historical SIP information in section 52.50 to paragraphs 52.69(b) and (c), and adding tables that summarize Alabama's SIP in paragraphs 52.50(a) through (e). Paragraphs 52.69(b) and (c) are being removed because EPA has determined that it is no longer necessary to include these paragraphs because the contents of
Paragraph 52.522, the third sentence states, “In addition, continued satisfaction of the requirements of part D for the ozone portion of the SIP depends on the adoption and submittal of reasonably available control technology (RACT) requirements by July 1, 1980 for the sources covered by control technique guidelines (CTGs) issued between January 1978 and January 1979 and adoption and submittal by each subsequent January of additional RACT requirements for sources covered by CTGs issued by the previous January.” This sentence is obsolete. It is being removed because the current ozone portion of the State's implementation plan is subject to the 1990 CAA, and the State has no further obligation to adopt and submit CTG based RACT SIP requirements under the 1977 CAA.
Paragraphs 52.524(a) and (b) were promulgated on June 20, 1973 (38 FR 16144) and August 23, 1973 (38 FR 22736), respectively. At that time there were issues as to whether plants could comply with SIP-approved emission standards for SO
Paragraph 52.527(a), was added when a Florida April 7, 1980, submission concerning a testing and research rule was disapproved by EPA on November 17, 1983 (
Paragraph 52.532 gave Florida an extension until July 1, 1980, to submit plans to attain and maintain the secondary particulate matter standard in Jacksonville and Tampa nonattainment areas. The secondary particulate matter Florida maintenance plan for these areas was approved on May 2, 1993 (48 FR 19715). This paragraph is therefore obsolete and is being removed.
Paragraphs 52.536(b) and (c) of this section contains historical information only about EPA's approval actions for the Florida SIP which occurred between May 31, 1972, and July 1, 1998. On June 16, 1999 (64 FR 32346), EPA reorganized the Identification of plan section in subpart K by moving the historical SIP information in section 52.520 to paragraphs 52.536(b) and (c), and adding tables that summarize Florida's SIP in paragraphs 52.520(a) through (e). Paragraphs 52.536(b) and (c) are being removed because EPA has determined that it is no longer necessary to include these paragraphs because the contents of the currently approved SIP are now identified in 52.520(a) through (e). Paragraph 52.536(a) is being amended to state that this historical information will continue to be available in the CFR annual editions, Title 40 part 52 (years 1999 through 2012). These annual editions are available on line at the following url address:
Paragraphs 52.590(b) and (c) of this section contains historical information only about EPA's approval actions for the Georgia SIP which occurred between May 31, 1972, and December 1, 1998. On May 21, 1999 (64 FR 27699), EPA reorganized the Identification of plan section in subpart L by moving the historical SIP information in section 52.570 to paragraphs 52.590(b) and (c), and adding tables that summarize Georgia's SIP in paragraphs 52.570(a) through (e). Paragraphs 52.590(b) and (c) are being removed because EPA has determined that it is no longer necessary to include these paragraphs because the contents of the currently approved SIP are now identified in 52.570(a) through (e). Paragraph 52.590(a) is being amended to state that this historical information will continue to be available in the CFR annual editions, Title 40 part 52 (years 1999 through 2012). These annual editions are available on line at the following url address:
Paragraph 52.923(a), the third sentence states, “In addition, continued satisfaction of the requirements of part D for the ozone portion of the SIP depends on the adoption and submittal of reasonably available control technology (RACT) requirements by July 1, 1980 for the sources covered by control technique guidelines (CTGs) issued between January 1978 and January 1979 and adoption and submittal by each subsequent January of additional RACT requirements for sources covered by CTGs issued by the previous January.” This paragraph is obsolete. It is being removed because the current ozone portion of the Commonwealth's SIP is subject to the 1990 CAA, and the Commonwealth has no further obligation to adopt and submit CTG based RACT requirements under the 1977 CAA.
Paragraph 52.926 presents the latest dates by which historical national standards were to be attained. This section is obsolete and is being removed. The latest of these dates was December 31, 1987. All of these attainment dates have been superseded by the 1990 CAA and by revised attainment dates for CO, NO
Sections 52.927(a) and (b) were promulgated on June 20, 1973 (38 FR 16144) and revised several times. At that time there were issues as to whether plants could comply with SIP approved emission standards for SO
Paragraph 52.931(d) is being revised to correct the addresses for the Commonwealth of Kentucky, Energy and Environment Cabinet, Department of Environmental Protection, and Louisville Metro Air Pollution Control District.
Paragraphs 52.934(a) and (b) of this section contains historical information only about EPA's approval actions of regulations for the Jefferson County portion of the Commonwealth of Kentucky SIP. On October 23, 2001 (66 FR 53658), EPA reorganized the Identification of plan section for subpart S by adding tables that summarize the Jefferson County portion of the Commonwealth of Kentucky's SIP in paragraphs 52.920(a) through (e). Paragraphs 52.934(a) and (b) are being removed because EPA has determined that it is no longer necessary to include these paragraphs because the contents of the Jefferson County portion of the currently approved SIP are now identified in 52.920(a) through (e). Paragraph 52.939(a) is being amended to state that this historical information from paragraphs 52.934(a) and (b) will continue to be available in the CFR annual editions, Title 40 part 52 (years 1999 through 2012). These annual editions are available on line at the following url address:
Paragraphs 52.939(b) and (c) of this section contains historical information only about EPA's approval actions for the Kentucky SIP which occurred between May 31, 1972, and March 1, 1999. On May 27, 1999 (64 FR 28748), EPA reorganized the Identification of plan section (section 52.920) for subpart S by moving the historical SIP information in section to 52.939(b) and (c) and adding tables that summarize Kentucky's SIP in paragraphs 52.920(a) through (e). Paragraphs 52.939(b) and (c) are being removed because EPA has determined that it is no longer necessary to include these paragraphs because the contents of the currently approved SIP are now identified in 52.920(a) through (e). Paragraph 52.939(a) is being amended to state that this historical information will continue to be available in the CFR annual editions, Title 40 part 52 (years 1999 through 2012). These annual editions are available on line at the following url address:
Paragraph 52.1272(b) is being removed because the language was removed in a prior EPA final action (
Paragraphs 52.1281(b) and (c) of this section contains historical information only about EPA's approval actions for the Mississippi SIP which occurred between May 31, 1972, and July 1, 1997. On July 1, 1997 (62 FR 35441), EPA reorganized the Identification of plan section (section 52.1270) for subpart Z by moving the historical SIP information in 52.1270 to paragraphs 52.1281(b) and (c), and adding tables that summarize Mississippi's SIP in paragraphs 52.1270 (a) through (e). Paragraphs 52.1281(b) and (c) are being removed because EPA has determined that it is no longer to include these paragraphs because the contents of the currently approved SIP are now identified in 52.1270(a) through (e). Paragraph 52.1281(a) is being amended to state that this historical information will continue to be available in the CFR annual editions, Title 40 part 52 (years 1999 through 2012). These annual editions are available on line at the following url address:
Paragraph 52.1772(a), the third sentence states, “In addition, continued satisfaction of the requirements of part D for the ozone portion of the SIP depends on the adoption and submittal of reasonably available control technology (RACT) requirements by July 1, 1980 for the sources covered by control technique guidelines (CTGs) issued between January 1978 and January 1979 and adoption and submittal by each subsequent January of additional RACT requirements for sources covered by CTGs issued by the previous January.” This paragraph is obsolete. It is being removed because the current ozone portion of the State's implementation plan is subject to the 1990 CAA, and the State has no further obligation to adopt and submit CTG based RACT requirements under the 1977.
Paragraph 52.1778(c) is being revised to correct the agency title and/or address for Mecklenburg County and Forsyth County.
Paragraph 52.1780 requires North Carolina to correct a deficiency regarding capture control device efficiency, citing state requirement 2D.914. The information in this section is obsolete and is being removed because the correction to 2D.0914 was approved on November 10, 1999 (64 FR 61213) and is codified in paragraph 52.1770(c).
Paragraphs 52.1783(b) and (c) of this section contains historical information only about EPA's approval actions for the North Carolina SIP which occurred between May 31, 1972, and December 1, 1998. On May 20, 1999 (64 FR 27465), EPA reorganized the Identification of plan section (section 52.1770) for subpart II by moving the historical SIP information in section 52.1770 to paragraphs 52.69(b) and (c), and adding
Paragraph 52.2122(a), the third sentence states, “In addition, continued satisfaction of the requirements of part D for the ozone portion of the SIP depends on the adoption and submittal of reasonably available control technology (RACT) requirements by July 1, 1980 for the sources covered by control technique guidelines (CTGs) issued between January 1978 and January 1979 and adoption and submittal by each subsequent January of additional RACT requirements for sources covered by CTGs issued by the previous January.” This paragraph is obsolete. It is being removed because the current ozone portion of the State's implementation plan is subject to the 1990 CAA, and the State has no further obligation to adopt and submit CTG based RACT requirements under the 1977 CAA.
This section is being revised to correctly reflect that Bowater is not part of SCE & G. The sentence currently reads “This certification does not apply to Public Service Authority—Winyah, SCE & G—Bowater, and SCE & G—Williams.” and should read “This certification does not apply to Public Service Authority—Winyah, Bowater, and SCE & G—Williams.”
Paragraphs 52.2134(b) and (c) of this section contains historical information only about EPA's approval actions for the South Carolina SIP which occurred between May 31, 1972, and July 1, 1997. On July 1, 1997 (62 FR 35441), EPA reorganized the Identification of plan section in subpart PP by moving the historical SIP information in 52.2120 to paragraphs 52.2134(b) and (c), and adding tables that summarize South Carolina's SIP in paragraphs 52.2120 (a) through (e). Paragraphs 52.2134(b) and (c) are being removed because EPA has determined that it is no longer necessary to include these paragraphs because the contents of the currently approved SIP are now identified in 52.2120(a) through (e). Paragraph 52.2134(a) is being amended to state that this historical information will continue to be available in the CFR annual editions, Title 40 part 52 (years 1999 through 2012). These annual editions are available on line at the following url address:
Paragraph 52.2222(a), the third sentence states, “In addition, continued satisfaction of the requirements of part D for the ozone portion of the SIP depends on the adoption and submittal of reasonably available control technology (RACT) requirements by July 1, 1980 for the sources covered by control technique guidelines (CTGs) issued between January 1978 and January 1979 and adoption and submittal by each subsequent January of additional RACT requirements for sources covered by CTGs issued by the previous January.” This paragraph is obsolete. It is being removed because the current ozone portion of the State's implementation plan is subject to the 1990 CAA, and the State has no further obligation to adopt and submit CTG based RACT requirements under the 1977 CAA.
Paragraph 52.2222(c) of this section contains historical information only about EPA's approval actions of regulations for the Nashville-Davidson County portion of the Tennessee SIP. On October 6, 2005 (70 FR 58321), EPA reorganized the Identification of plan section (section 52.2220) for subpart RR by summarizing Nashville-Davidson County portion of the Tennessee's SIP in paragraphs 52.2220(a) through (e). Paragraph 52.2222(c) is being removed because EPA has determined that it is no longer necessary to include the information found in this paragraph because the contents of the currently approved Nashville-Davidson portion of the SIP are now identified in 52.2220(a) through (e). Paragraph 52.2239(a) is being amended to state that this historical information from paragraph 52.2222(c) will continue to be available in the CFR annual editions, Title 40 part 52 (years 1999 through 2012). These annual editions are available on line at the following url address:
Sections 52.2223(a), (b), (c), (d), (e) and (f) were promulgated on June 20, 1973 (38 FR 16144) and revised several times. At that time there were issues as to whether plants could comply with SIP approved emission standards for SO
Section 52.2226 codifies two attainment plan submittal extensions for specific areas in Tennessee. Both extensions were until July 1, 1980. Section 52.2226 is obsolete and is being removed because EPA has determined that it is no longer necessary to codify the expired extensions found in this section.
Section 52.2230 presents the latest dates by which historical national standards were to be attained. This entire section is obsolete and is being removed. The latest of these dates was December 31, 1987. All of these attainment dates have been superseded by the 1990 CAA and by revised attainment dates for CO, NO
Section 52.2233(c)(1) is being revised to update the addresses of the State and Local Agencies.
Paragraphs 52.2239(b) and (c) of this section contains historical information only about EPA's approval actions for the Tennessee SIP which occurred between May 31, 1972, and December 1, 1998. On June 30, 1999 (64 FR 35009), EPA reorganized the Identification of plan section in subpart RR by moving the historical SIP information in section 52.2220 to paragraphs 52.2239(b) and (c), and adding tables that summarize Tennessee's SIP in paragraphs 52.2220(a) through (e). Paragraphs 52.2239(b) and (c) are being removed because EPA has determined that it is no longer necessary to include these paragraphs because the contents of the currently approved SIP are now identified in 52.2220(a) through (e). Paragraph 52.2239(a) is being amended to state that this historical information will continue to be available in the CFR annual editions, Title 40 part 52 (years 1999 through 2012). These annual editions are available on line at the following url address:
EPA is removing/revising provisions the above-reference rules from these states' subparts of 40 CFR part 52 because they are outdated or obsolete in whole or in part. This action also revises certain CFR provisions by correcting state agencies' office addresses and correcting CFR publication errors in two provisions.
EPA has determined that today's action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA). Upon a finding of “good cause,” the APA authorizes agencies to dispense with public participation. In addition, APA section 553(d)(3) allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.”
Today's action is a “housekeeping” action that merely removes or revises outdated or obsolete CFR provisions. This action makes no substantive changes to any SIP. Public comment is “unnecessary” since this action does not change existing law and immediate publication in the CFR benefits the public by simplifying the CFR by removing outdated and obsolete provisions. In addition, immediate publication of updated state agencies' office addresses benefits the public.
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). Because the Agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the APA or any other statute as indicated above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104–4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This action merely removes rules from subparts of 40 CFR part 52 because they pertain to state regulations that are outdated or legally obsolete in whole or in part and impose no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
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 rule 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 rule merely removes rules from subparts of 40 CFR part 52 because they pertain to state regulations that are outdated or legally obsolete in whole or in part and does not alter the relationship or the distribution of power and responsibilities established in the CAA. 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 is not economically significant. In addition, this rule does not involve technical standards, 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 also 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
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. EPA is not approving or promulgating any SIP provision in this housekeeping action. Prior EPA rulemaking actions for each individual component of the SIPs at issue 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 that rulemaking action.
Air pollution control, Carbon monoxide, Environmental Protection Agency, 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
With the exceptions set forth in this subpart, the Administrator approves Alabama's plan for the attainment and maintenance of the national standards under section 110 of the Clean Air Act. Furthermore, the Administrator finds that the plan satisfies all requirements of part D, title 1, of the Clean Air Act as amended in 1977.
(a) This section identified the original “Air Implementation Plan for the State of Alabama” and all revisions submitted by Alabama that were federally approved prior to December 1, 1998. The information in this section is available in the 40 CFR, part 52 edition revised as of July 1, 1999, the 40 CFR, part 52, Volume 1 of 2 (§§ 52.01 to 52.1018) editions revised as of July 1, 2000 through July 1, 2011, and the 40 CFR, part 52, Volume 1 of 3 (§§ 52.01 to 52.1018) editions revised as of July 1, 2012.
(b) [Reserved]
(c) [Reserved]
(a) With the exceptions set forth in this subpart, the Administrator approves Florida's plan for the attainment and maintenance of the national standards under section 110 of the Clean Air Act. Furthermore, the Administrator finds that the plan satisfies all requirements of part D, title 1, of the Clean Air Act as amended in 1977.
(a) The information in this section is available in the 40 CFR, part 52 edition revised as of July 1, 1999, the 40 CFR, part 52, Volume 1 of 2 (§§ 52.01 to 52.1018) editions revised as of July 1, 2000 through July 1, 2011, and the 40 CFR, part 52, Volume 1 of 3 (§§ 52.01 to 52.1018) editions revised as of July 1, 2012.
(b) [Reserved]
(a) This section identified the original “Air Implementation Plan for the State of Florida” and all revisions submitted by Florida that were federally approved prior to July 1, 1998. The information in this section is available in the 40 CFR, part 52 edition revised as of July 1, 1999, the 40 CFR, part 52, Volume 1 of 2 (§§ 52.01 to 52.1018) editions revised as of July 1, 2000 through July 1, 2011, and the 40 CFR, part 52, Volume 1 of 3 (§§ 52.01 to 52.1018) editions revised as of July 1, 2012.
(b) [Reserved]
(c) [Reserved]
(a) This section identified the original “Air Implementation Plan for the State of Georgia” and all revisions submitted by Georgia that were federally approved prior to December 1, 1998. The information in this section is available in the 40 CFR, part 52 edition revised as of July 1, 1999, the 40 CFR, part 52, Volume 1 of 2 (§§ 52.01 to 52.1018) editions revised as of July 1, 2000 through July 1, 2011, and the 40 CFR, part 52, Volume 1 of 3 (§§ 52.01 to 52.1018) editions revised as of July 1, 2012.
(b) [Reserved]
(c) [Reserved]
(a) With the exceptions set forth in this subpart, the Administrator approves Kentucky's plan for the attainment and maintenance of the national standards under section 110 of the Clean Air Act. Furthermore, the Administrator finds that the plan satisfies all requirements of part D, title 1, of the Clean Air Act as amended in 1977.
(a) The information in this section is available in the 40 CFR, part 52 edition revised as of July 1, 1999, the 40 CFR, part 52, Volume 1 of 2 (§§ 52.01 to 52.1018) editions revised as of July 1, 2000 through July 1, 2011, and the 40 CFR, part 52, Volume 1 of 3 (§§ 52.01 to 52.1018) editions revised as of July 1, 2012.
(b) [Reserved]
(d) All applications and other information required pursuant to § 52.21 of this part from sources located in the
(a) This section identified the original “Air Implementation Plan for the State of Kentucky” and all revisions submitted by Kentucky that were federally approved prior to March 1, 1999. The information in this section is available in the 40 CFR, part 52 edition revised as of July 1, 1999, the 40 CFR, part 52, Volume 1 of 2 (§§ 52.01 to 52.1018) editions revised as of July 1, 2000 through July 1, 2011, and the 40 CFR, part 52, Volume 1 of 3 (§§ 52.01 to 52.1018) editions revised as of July 1, 2012. The Jefferson County portion of the Commonwealth of Kentucky's SIP previously identified in section 52.934(a) and (b) is also available in the above editions.
(a) With the exceptions set forth in this subpart, the Administrator approves Mississippi's plan for the attainment and maintenance of the national standards under section 110 of the Clean Air Act. Furthermore, the Administrator finds that the plan satisfies all requirements of part D, title 1, of the Clean Air Act as amended in 1977.
(b) [Reserved]
(a) This section identified the original “Air Implementation Plan for the State of Mississippi” and all revisions submitted by Mississippi that were federally approved prior to July 1, 1997. The information in this section is available in the 40 CFR, part 52 edition revised as of July 1, 1999, the 40 CFR, part 52, Volume 2 of 2 (§§ 52.1019 to End) editions revised as of July 1, 2000 through July 1, 2011, and the 40 CFR, part 52, Volume 2 of 3 (§§ 52.1019 to 52.2019) editions revised as of July 1, 2012.
(b) [Reserved]
(c) [Reserved]
(a) With the exceptions set forth in this subpart, the Administrator approves North Carolina's plan for the attainment and maintenance of the national standards under section 110 of the Clean Air Act. Furthermore, the Administrator finds that the plan satisfies all requirements of part D, title 1, of the Clean Air Act as amended in 1977.
(c) All applications and other information required pursuant to § 52.21 of this part from sources located or to be located in the State of North Carolina shall be submitted to the State agency, North Carolina Department of Environment and Natural Resources, Division of Air Quality, 1641 Mail Service Center, Raleigh, North Carolina 27699–1641 or local agencies, Forsyth County Office of Environmental Assistance and Protection, 201 North Chestnut Street, Winston-Salem, North Carolina 27101–4120; Mecklenburg County Air Quality, 700 N. Tryon St., Suite 205, Charlotte, North Carolina 28202–2236; Western North Carolina Regional Air Quality Agency, 49 Mount Carmel Road, Asheville, North Carolina 28806, rather than to EPA's Region 4 office.
(a) This section identified the original “Air Implementation Plan for the State of North Carolina” and all revisions submitted by North Carolina that were federally approved prior to December 1, 1998. The information in this section is available in the 40 CFR, part 52 edition revised as of July 1, 1999, the 40 CFR, part 52, Volume 2 of 2 (§§ 52.1019 to End) editions revised as of July 1, 2000 through July 1, 2011, and the 40 CFR, part 52, Volume 2 of 3 (§§ 52.1019 to 52.2019) editions revised as of July 1, 2012.
(b) [Reserved]
(c) [Reserved]
(a) With the exceptions set forth in this subpart, the Administrator approves South Carolina's plan for the attainment and maintenance of the national standards under section 110 of the Clean Air Act. Furthermore, the Administrator finds that the plan satisfies all requirements of part D, title 1, of the Clean Air Act as amended in 1977.
In letters dated May 7, and December 2, 1986, the South Carolina Department of Health and Environmental Control certified that no emission limits in the State's plan are based on dispersion techniques not permitted by EPA's stack height rules. This certification does not apply to Public Service Authority—Winyah, Bowater, and SCE & G—Williams.
(a) This section identified the original “Air Implementation Plan for the State of South Carolina” and all revisions submitted by South Carolina that were federally approved prior to July 1, 1997. The information in this section is available in the 40 CFR, part 52 edition revised as of July 1, 1999, the 40 CFR, part 52, Volume 2 of 2 (§§ 52.1019 to End) editions revised as of July 1, 2000 through July 1, 2011, and the 40 CFR, part 52, Volume 3 of 3 (§§ 52.2020 to End) editions revised as of July 1, 2012.
(b) [Reserved]
(c) [Reserved]
The revision reads as follows:
(a) With the exceptions set forth in this subpart, the Administrator approves Tennessee's plan for the attainment and maintenance of the national standards under section 110 of the Clean Air Act. Furthermore, the Administrator finds that the plan satisfies all requirements of part D, title 1, of the Clean Air Act as amended in 1977.
(c) [Reserved]
(a) The information in this section is available in the 40 CFR, part 52 edition revised as of July 1, 1999, the 40 CFR, part 52, Volume 1 of 2 (§§ 52.01 to 52.1018) editions revised as of July 1, 2000 through July 1, 2011, and the 40 CFR, part 52, Volume 3 of 3 (§§ 52.2020 to End) editions revised as of July 1, 2012.
(b) [Reserved]
(c) [Reserved]
(d) [Reserved]
(e) [Reserved]
(f) [Reserved]
(c) All applications and other information required pursuant to § 52.21 of this part from sources located or to be located in the State of Tennessee shall be submitted to the State agency, Department of Environment and Conservation Division of Air Pollution Control, William R. Snodgrass Tennessee Tower, 312 Rosa L Parks Avenue, 15th Floor, Nashville, TN 37243, or local agencies, Knox County Air Quality Management-Department of Public Health, 140 Dameron Avenue, Knoxville, Tennessee 37917; Metro Public Health Department, Pollution Control Division, 311 23rd Avenue North, Nashville, Tennessee, 37203; Chattanooga-Hamilton County Air Pollution Control Bureau, 6125 Preservation Drive, Chattanooga, Tennessee 37416; Shelby County Health Department, Pollution Control Section, 814 Jefferson Avenue, Memphis, Tennessee 38105, rather than to the EPA's Region 4 office.
(a) This section identified the original “Air Implementation Plan for the State of Tennessee” and all revisions submitted by Tennessee that were federally approved prior to December 1, 1998. The information in this section is available in the 40 CFR, part 52 edition revised as of July 1, 1999, the 40 CFR, part 52, Volume 2 of 2 (§§ 52.1019 to End) editions revised as of July 1, 2000 through July 1, 2011, and the 40 CFR, part 52, Volume 3 of 3 (§§ 52.2020 to End) editions revised as of July 1, 2012. The Nashville-Davidson portion of the Tennessee's SIP previously identified in section 52.2222(c) is also available in the above editions.
(b) [Reserved]
(c) [Reserved]
Legal Services Corporation.
Correcting amendments.
The Legal Services Corporation (LSC) published a document in the
Effective May 27, 2014.
Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation, 3333 K St. NW., Washington, DC 20007; (202) 295–1563;
This document corrects the final regulations for part 1626, which became effective on May 19, 2014.
Aliens, Grant programs—law, Legal services, Migrant labor, Reporting and recordkeeping requirements.
Accordingly, 45 CFR part 1626 is corrected by making the following correcting amendments:
42 U.S.C. 2996g(e).
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)(1)
(i) A person who has been granted relief under that section;
(ii) A person who has applied for relief under that section and who the recipient determines has evidentiary support for such application; or
(iii) A person who has not filed for relief under that section, but who the recipient determines has evidentiary support for filing for such relief.
(2) A person who
(i)
(j)
(k)
(1)
(2)
(l)
In Title 47 of the Code of Federal Regulations, Parts 0 to 19, revised as of October 1, 2013, on page 645, in § 2.925, the example following paragraph (a)(1) is removed.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class D airspace at Wichita, McConnell AFB, KS. The closure of nearby Derby, Hamilton Field has necessitated the need to amend Class D airspace at McConnell AFB. This action would enhance the safety and management of aircraft operations at the airport.
Comments must be received on or before July 11, 2014.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. You must identify the docket number FAA–2014–0294/Airspace Docket No. 14–ACE–2, at the beginning of your comments. You may also submit comments through the Internet at
Raul Garza, Jr., Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone: 817–321–7654.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2014–0294/Airspace Docket No. 14–ACE–2.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267–9677, to request a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by amending Class D airspace at McConnell AFB, Wichita, KS. The closing of Derby, Hamilton Field, KS, has made this action necessary. Accordingly, the segment of controlled airspace once reserved for use at Derby, Hamilton Field, would revert to Class D airspace for use at McConnell AFB, Wichita, KS.
Class D airspace areas are published in Paragraph 5000 of FAA Order 7400.9X, dated August 7, 2013 and effective September 15, 2013, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. 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 will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 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 would amend controlled airspace at McConnell AFB, Wichita, KS.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 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 3,900 feet MSL within a 4.5-mile radius of McConnell Air Force Base, excluding that airspace within the Wichita Mid-Continent Airport, KS, Class C airspace area.
Food and Drug Administration, HHS.
Proposed rule; extension of comment period.
The Food and Drug Administration (FDA, the Agency, or we) is extending the comment period for the proposed rule that appeared in the
FDA is extending the comment period on the proposed rule published on March 3, 2014 (79 FR 11880). Submit either electronic or written comments by August 1, 2014.
You may submit comments by any of the following methods:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
Submit written submissions in the following ways:
• Mail/Hand delivery/Courier (for paper submissions): Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
Blakeley Fitzpatrick, Center for Food Safety and Applied Nutrition (HFS–830), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240–402–5429, email:
In the
We received multiple requests for a 90-day extension of the comment period and one request for a 120-day extension of the comment period for the proposed rule. Each request conveyed concern that the original 90-day comment period does not allow sufficient time to develop a meaningful or thoughtful response to the proposed rule.
We have considered the requests and are extending the comment period for the proposed rule for 60 days, until August 1, 2014. We believe that a 60-day extension allows adequate time for interested persons to submit comments without significantly delaying rulemaking on these important issues.
Interested persons may submit either electronic comments regarding this document to
Food and Drug Administration, HHS.
Proposed rule; extension of comment period.
The Food and Drug Administration (FDA, the Agency, or we) is extending the comment period for the proposed rule that appeared in the
FDA is extending the comment period on the proposed rule published on March 3, 2014 (79 FR 11990). Submit either electronic or written comments by August 1, 2014.
You may submit comments by any of the following methods:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
Submit written submissions in the following ways:
• Mail/Hand delivery/Courier (for paper submissions): Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
Cherisa Henderson, Center for Food Safety and Applied Nutrition (HFS–830), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240–402–5429, email:
In the
We received multiple requests for a 90-day extension of the comment period for the proposed rule. Each request conveyed concern that the original 90-day comment period does not allow sufficient time to develop a meaningful or thoughtful response to the proposed rule.
We have considered the requests and are extending the comment period for the proposed rule for 60 days, until August 1, 2014. We believe that a 60-day extension allows adequate time for interested persons to submit comments without significantly delaying rulemaking on these important issues.
Interested persons may submit either electronic comments regarding this document to
Office of Special Education and Rehabilitative Services, Department of Education.
Proposed priority.
The Assistant Secretary for Special Education and Rehabilitative Services proposes a priority for the Rehabilitation Research and Training Center (RRTC) Program administered by the National Institute on Disability and Rehabilitation Research (NIDRR). Specifically, this document proposes a priority for a RRTC on Vocational Rehabilitation Practices for Youth and Young Adults. We take this action to focus research attention on an area of national need. We intend for this priority to contribute to improved outcomes of youth and young adults with disabilities in the State Vocational Rehabilitation Services program.
We must receive your comments on or before June 26, 2014.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment
•
•
Patricia Barrett, U.S. Department of Education, 400 Maryland Avenue SW., Room 5142, Potomac Center Plaza (PCP), Washington, DC 20202–2700. Telephone: (202) 245–6211 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
This proposed priority is in concert with NIDRR's currently approved Long-Range Plan (Plan). The Plan, which was published in the
The Plan identifies a need for research and training in a number of areas. To address this need, NIDRR seeks to: (1) Improve the quality and utility of disability and rehabilitation research; (2) foster an exchange of research findings, expertise, and other information to advance knowledge and understanding of the needs of individuals with disabilities and their family members, including those from among traditionally underserved populations; (3) determine effective practices, programs, and policies to improve community living and participation, employment, and health and function outcomes for individuals with disabilities of all ages; (4) identify research gaps and areas for promising research investments; (5) identify and promote effective mechanisms for integrating research and practice; and (6) disseminate research findings to all major stakeholder groups, including individuals with disabilities and their families in formats that are appropriate and meaningful to them.
This document proposes one priority that NIDRR intends to use for one or more competitions in fiscal year (FY) 2014 and possibly in later years. NIDRR is under no obligation to make an award under this priority. The decision to make an award will be based on the quality of applications received and available funding. NIDRR may publish additional priorities, as needed.
We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from this proposed priority. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public comments about this proposed priority in Room 5142, 550 12th Street SW., PCP, Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays.
The purpose of the RRTCs, which are funded through the Disability and Rehabilitation Research Projects and Centers Program, is to achieve the goals of, and improve the effectiveness of, services authorized under the Rehabilitation Act through well-designed research, training, technical assistance, and dissemination activities in important topical areas as specified by NIDRR. These activities are designed to benefit rehabilitation service providers, individuals with disabilities, family members, policymakers and other research stakeholders. Additional information on the RRTC program can be found at:
29 U.S.C. 762(g) and 764(b)(2).
This document contains one proposed priority.
Vocational Rehabilitation Practices for Youth and Young Adults.
Individuals with disabilities are less likely to be employed, or to participate in the labor force, than individuals without disabilities (U.S. Bureau of Labor Statistics, 2013). Similarly, youth and young adults with disabilities (age 16–24) are less likely than their peers without disabilities to be employed (U.S. Department of Labor, 2013). Compared to their peers without disabilities, youth and young adults with disabilities are also more likely to drop out of school (Chapman et al., 2011), less likely to participate in postsecondary education, (Newman et al., 2010; Newman et al., 2011; Wagner et al., 2005), and less likely to be employed after completing school (Wagner et al., 2005). Some groups of youth and young adults with disabilities are at increased risk for poor post-school employment outcomes, including those with mental illness or intellectual disabilities, and those from underserved
From a policy perspective, improving the employment outcomes of youth and young adults with disabilities could decrease reliance on long-term public benefits. Research indicates that young adults with disabilities, especially those who receive Social Security Income (SSI) benefits before the age of 18, are at high risk of poor employment outcomes, low incomes, and continued reliance on public benefits (Davies et al., 2009; Fraker, 2011). The public cost of these benefits is high; in 2009, the combined cost of SSI benefits for youth age 13–25 was $7.5 billion; the cost of Social Security Disability Insurance (SSDI) benefits to individuals under the age of 25 was greater than $1 billion (Fraker, 2011).
The State Vocational Rehabilitation Services (VR) program administered by the Rehabilitation Services Administration (RSA) provides grants to States to support a wide range of services to assist individuals with disabilities prepare for and engage in gainful employment consistent with their strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. State reported data from RSA's Case Services Report (RSA–911) from FY 2012 show that youth and young adults age 14–24 accounted for 35 percent (about 113,850) of the total number of individuals whose service records were closed after receiving services from the VR program. However, RSA–911 data also show that 46 percent of these youth and young adults had not achieved an employment outcome at the time their service records were closed. The three most frequent reported reasons for their service record closure were: (1) Unable to contact or locate the client (36 percent), (2) refused services or further services (22 percent), and (3) failure to cooperate (22 percent). However, a recent study by Mathematica (Honeycutt et al., 2013) found wide variation in service patterns and outcomes among State VR agencies.
State VR agencies can play a critical role in helping youth and young adults attain their vocational goals, including collaborating with State and local education agencies to plan and provide services for students with disabilities. However, knowledge about best practices for VR agencies serving youth and young adults is insufficient given the persistent poor employment outcomes of youth and young adults with disabilities (Honeycutt et al., 2013). There are emerging practices that VR agencies may employ to assist youth and young adults to achieve postsecondary goals. For example, some evidence-based secondary transition practices used in schools may be useful in VR settings (Test & Cease-Cook, 2012). In addition, a description of selected emerging transition practices, services, and models in State VR agencies is provided on RSA's “Emerging Practices” Web site (
There is, therefore, a need to identify best practices that could be used by VR programs to improve outcomes for youth, especially those at high risk for poor outcomes. In addition, given the high proportion of youth and young adults who discontinue participation in the VR program, there is a need to understand the factors that may cause youth and young adults with disabilities to exit the VR program without an employment outcome and whether interventions can be implemented by the VR program to improve their outcomes.
For purposes of this priority, the stages of research are from the notice of final priorities and definitions published in the
(i)
(ii)
(iii)
(iv)
The Assistant Secretary for Special Education and Rehabilitative Services proposes a priority for an RRTC to conduct research on VR Practices for Youth and Young Adults. The RRTC must contribute to increased knowledge about effective VR practices that can improve employment outcomes of youth and young adults with disabilities by:
(a) Generating new knowledge that builds the evidence base of vocational rehabilitation practices, services, or models that improve the employment outcomes for youth and young adults. The center will conduct research to better understand the factors that affect the likelihood that youth and young adults are fully engaged in the VR program and achieve their vocational goals, i.e., completion of postsecondary education and training programs, and attainment of competitive employment, including research that—
(i) Identifies individual- and system-level factors that affect engagement and attainment of an employment outcome. Individual-level factors include, but are not limited to, demographic characteristics and impairment types and severity. System-level factors include, but are not limited to, financial disincentives to obtaining employment associated with other public programs and systems, characteristics and practices of VR State agencies, employer practices and perceptions, and macroeconomic conditions; and
(ii) Identifies the reasons for which youth and young adults with a disability discontinue their participation in the VR program before achieving successful postsecondary goals (e.g., postsecondary education or training) or employment outcomes.
(b) Conducting research to identify VR services and transition practices that increase the likelihood of youth and young adults with disabilities achieving successful employment outcomes. The research must also identify practices relevant to improving the outcomes of youth and young adults who are at particular risk for poor employment outcomes. Applicants must identify the specific at-risk group or groups of youth and young adults with disabilities they propose to include; provide evidence that the selected population or populations are, in fact, at risk for poor employment outcomes; and explain how the practices are expected to address the needs of the population or populations.
(c) Focusing its research on one or more specific stages of research. If the RRTC is to conduct research that can be categorized under more than one of the research stages, or research that progresses from one stage to another, those research stages must be clearly specified. (These stages and their definitions are provided at end of the background statement section of this document.)
(d) Serving as a national resource center for youth and young adults with disabilities, their families, and other stakeholders, including other relevant grantees funded by the Office of Special Education and Rehabilitative Services. Specifically, this center must coordinate, as appropriate, with the OSEP-funded Parent Training and Information Centers, the OSEP-funded National Technical Assistance Center on Improving Transition and the RSA-funded Parent Information and Training Projects, and other relevant entities by conducting knowledge translation activities related to improving employment outcomes of youth and young adults that must, but are not limited to:
(i) Providing information and technical assistance to VR State agencies and related service providers, educators, employers, youth and young adults with disabilities and their representatives, families, and other key stakeholders.
(ii) Providing training, including graduate, pre-service, and in-service training, to educators, VR professionals, direct service professionals and related service providers, to facilitate a seamless and effective transition service delivery system. Training may be offered through conferences, workshops, public education programs, in-service training programs, and similar activities.
(iii) Disseminating research-based information and materials related to VR practices and services that increase employment for youth and young adults with disabilities.
(iv) Involving key stakeholder groups in the activities conducted under paragraphs (a) through (d) of this priority in order to maximize the relevance and usability of the new knowledge generated by the RRTC.
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
We will announce the final priority in a document in the
This document does
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed this regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing this proposed priority only upon a reasoned determination that its benefits would justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this proposed priority is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
The benefits of the Disability and Rehabilitation Research Projects and Centers Program have been well established over the years. Projects similar to the RRTCs have been completed successfully, and the proposed priorities will generate new knowledge through research. The new RRTCs will generate, disseminate, and promote the use of new information that would improve outcomes for individuals with disabilities in the areas of community living and participation, employment, and health and function.
If you use a TDD or TTY, call the FRS, toll free, at 1–800–877–8339.
You may also access documents of the Department published in the
Coast Guard, DHS.
Requests for comments on petitions for rulemaking.
The Coast Guard announces the availability of several requests for a rulemaking, and requests public comment accordingly. The requesters are petitioning the Coast Guard to establish a special load line-exempted route on Lake Michigan. This exemption would allow non-load line river barges to transit along the eastern shore of Lake Michigan, between Chicago (Calumet Harbor), IL, and Muskegon, MI. This is similar to an existing exempted route along the western shore between Calumet and Milwaukee, WI.
Comments and related material must either be submitted to our online docket via
You may submit comments identified by docket number USCG–2013–0954 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this document, contact Mr. Thomas Jordan, Naval Architecture Division (CG–ENG–2), U.S. Coast Guard Headquarters, at telephone 202–372–1370, or by email at
We encourage you to submit comments and related material on the rulemaking petition for a special load line exemption on Lake Michigan. All comments received will be posted, without change, to
To submit your comment online, go to
The requesters are petitioning the Coast Guard to establish a special load line-exempted route along the eastern shore of Lake Michigan, which would allow non-load line river barges to transit between Chicago (Calumet Harbor), IL, and Muskegon, MI. This action pertains to current load line regulations, and the use of non-load line river barges on Lake Michigan (particularly on the Milwaukee and Burns Harbor routes; these are discussed further below).
Furthermore, the vessel must be surveyed annually (by a surveyor from the load line assigning authority) to verify that all of these features are maintained in operable condition, and that no damage or modification has been done to the vessel that compromises its seaworthiness. The benefit in meeting these requirements is that the vessel is considered safe and seaworthy enough for offshore voyages, even under severe weather conditions. This gives the operator maximum flexibility in the commercial employment of the vessel. There are costs associated with load line assignment, however: Higher construction cost for the vessel, and the cost of the annual surveys.
Because river barges are not exposed to any sea conditions, they are not typically constructed to meet the load line standards for coastwise, offshore, or Great Lakes service. Although this makes them less expensive to build and operate, they do not qualify for load line
(More information on load lines and the Boundary Line can be found on the Coast Guard's load line Web site at:
Although non-load line river barges are not normally permitted to operate on the Lake, there are two specific routes where they are so permitted under restricted conditions: Between Calumet and Burns Harbor, IL, and between Calumet and Milwaukee, MI. The voyages are subject to weather limitations and certain other loading restrictions. The premise for these exempted routes is that weather conditions on the Lake are often benign, that accurate and timely forecasts are readily available, and that ports of refuge are close at hand along the route. This allows the river barges to avoid bad weather and safely transit along the Lake shore. The specific restrictions for these exempted routes are found in 46 CFR 45.171,
The benefit of the exemption is that it would allow non-hazardous cargoes to be loaded onto ordinary, non-load line river barges at inland Mississippi River terminals for direct delivery to Muskegon and intermediate Lake ports, and for agricultural products to be similarly transported to downriver terminals.
In deciding whether or not to move forward with the requested rulemaking, the Coast Guard must consider several issues: The safety of the operation, protection of the marine environment, resource demands on the Coast Guard (particularly compliance verification and enforcement), and the potential economic costs and benefits.
Public comments on these issues, as well as other points that are pertinent to this petition, are encouraged. Upon review, the Coast Guard will decide whether or not to proceed with a rulemaking to establish the proposed exempted route.
This document is issued under authority of 5 U.S.C. 552(a) and 46 U.S.C. 5108.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of availability; request for comments.
FMCSA announces the availability of the Privacy Impact Assessment (PIA) for the Medical Examiner's Certification Integration notice of proposed rulemaking (NPRM) published on May 10, 2013. Due to technical errors, the PIA was not posted to the docket until July 4, 2013, just a few days prior to the end of the public comment period. In addition, the PIA was not posted to the Department of Transportation's (DOT's) Privacy Web site until December 11, 2013. In an effort to provide the public with as much information as possible regarding the National Registry and the Medical Examiner's Certification Integration rulemaking, we are announcing the availability of the updated PIA and requesting comments from the public. Comments must be limited to possible impact of the rules proposed in the NPRM on the protection of privacy of information used in determining the physical qualifications of drivers of commercial motor vehicles.
Comments must be received on or before
You may submit comments identified by Docket Number FMCSA–2012–0178 using any of the following methods:
•
•
•
•
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
Robin Hamilton, Office of Medical Programs, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590–0001, by telephone at (202) 366–4001 or via email at
FMCSA encourages you to submit comments regarding the impacts on privacy of information by the rules proposed in the Medical Examiner's Certification Integration rulemaking. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (FMCSA–2012–0178), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and
To view comments, as well as documents mentioned in the Medical Examiner's Certification Integration NPRM, available in the docket, go to
Anyone may search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's Privacy Act Statement for the Federal Docket Management System published in the
The Agency, in conjunction with the Department's Chief Information Office, has prepared and made available a PIA.
The statute involved does not require this Agency or the Department to provide an opportunity to comment on the PIA directly. The PIA provides a detailed explanation of the privacy interests involved in the entire National Registry program. It sets out the careful and thorough steps FMCSA and the Department have taken and will take to protect those interests, while at the same time carrying out the statutory directives to ensure that CMV drivers are physically qualified and can operate safely and that operation of a CMV does not affect their health.
The National Registry was developed and implemented under the authority of 49 U.S.C. 31149, enacted by Section 4116(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU). The program is managed and maintained by the FMCSA. The Federal Motor Carrier Safety Regulations (FMCSRs) require that CMV drivers comply with physical qualification requirements and be examined and certified by a medical examiner (ME) at least once every two years. The National Registry ensures that MEs who perform DOT driver medical examinations are properly trained and certified by FMCSA to do so. The program maintains personally identifiable information (PII) for each ME candidate applying for ME certification, MEs' administrative personnel who are registering on the National Registry, and of CMV drivers examined by a certified ME. FMCSA published a final rule on April 20, 2012 (77 FR 73129), to establish and maintain a National Registry of Certified Medical Examiners. FMCSA posted a PIA of the final rule on the DOT privacy program Web site on August 20, 2012.
FMCSA published the Medical Examiner's Certification Integration NPRM on May 10, 2013 (78 FR 24104), a follow-on rule to the National Registry final rule. The purpose of the principal requirements proposed in the Medical Examiner's Certification Integration NPRM was to modify the requirements adopted in two earlier final rules issued by FMCSA, Medical Certification Requirements as Part of the Commercial Driver's License, 73 FR 73096 (Dec. 1, 2008), and the National Registry final rule. It proposed that the information from the Medical Examiner's Certificate (MEC) be transmitted to FMCSA on a daily basis by MEs. FMCSA would then promptly and accurately transmit that information for CDL holders to the State Driver Licensing Agencies (SDLAs) electronically for entry into the appropriate CDL driver record within one business day of receipt from FMCSA. Specifically, the NPRM proposed to require MEs to use a slightly revised Medical Examination Report (MER) Form, MCSA–5875 and the MEC, Form MCSA–5876; daily instead of monthly reporting of CMV driver medical examinations; electronic transmission of CDL and Commercial Learner's Permit (CLP) driver information from the National Registry system to the SDLAs; and electronic transmission of medical variance information for all CMV drivers to the SDLAs.
The PIA announced by this notice is an update to the previous National Registry PIA (August 20, 2012) and in support of the Medical Examiner's Certification Integration NPRM. It not only updates the additional collection of personally identifiable information (PII) under this rule but attempts to update language in the PIA for clarity to the reader.
The Privacy Act of 1974 articulates concepts for how the Federal government should treat individuals and their information and imposes duties upon federal agencies regarding the collection, use, dissemination, and maintenance of PII. The E-Government Act of 2002, Section 208, establishes the requirement for agencies to conduct PIAs for electronic information systems and collections. The assessment is a practical method for evaluating privacy in information systems and collections, and provides documented assurance that privacy issues have been identified and adequately addressed. The PIA is an analysis of how information is handled to: (i) Ensure handling conforms to applicable legal, regulatory, and policy requirements regarding privacy; (ii) determine the risks and effects of collecting, maintaining and disseminating information in identifiable form in an electronic information system; and (iii) examine and evaluate protections and alternative processes for handling information to mitigate potential privacy risks.
Conducting a PIA ensures compliance with laws and regulations governing privacy and demonstrates DOT's commitment to protect the privacy of any personal information we collect, store, retrieve, use and share. It is a comprehensive analysis of how DOT's electronic information systems and collections handle PII. The goals accomplished in completing a PIA include:
Making informed policy and system design or procurement decisions. These decisions must be based on an understanding of privacy risk, and of options available for mitigating that risk;
• Accountability for privacy issues;
• Analyzing both technical and legal compliance with applicable privacy law and regulations, as well as accepted privacy policy; and
• Providing documentation on the flow of personal information and information requirements within DOT systems.
The Medical Examiner's Certification Integration NPRM would require the collection of PII; therefore, a PIA is required for the rulemaking and was prepared. It was belatedly included in the rulemaking docket and then made available on the DOT Privacy Web site late in 2013. The supporting PIA, available for review in the docket, gives a complete explanation of FMCSA practices for protecting PII, as updated from the 2012 PIA prepared in support of the National Registry of Certified Medical Examiners final rule. In addition, the 2013 PIA updates the frequency with which PII is submitted to the Agency, adds the driver's mailing address which is currently being collected on the medical forms to the list of PII required to be submitted to the National Registry, and outlines how certain PII would be transmitted to the State licensing agencies. There is no additional PII collected under this NPRM. The updated 2013 PIA is specifically related to both the National Registry and Medical Examiner's Certification Integration NPRM and the entire medical program administered by FMCSA. Upon reviewing the PIA, you should have a broad understanding of the risks and potential effects associated with the Department activities, processes, and systems described and approaches taken to mitigate any potential privacy risks.
The Agency requests comments on the possible impact of the rules proposed in the NPRM on the protection of privacy of information used in determining the physical qualifications of drivers of commercial motor vehicles, in light of the evaluation by the Agency and the Department of the protection of privacy of information set out in the Privacy Impact Assessment.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of intent to prepare an Environmental Assessment.
NMFS announces its intent to prepare an Environmental Assessment (EA) for Amendment 6 to the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP) instead of an Environmental Impact Statement (EIS), as previously announced through publication of a Notice of Intent published on September 16, 2011. NMFS intends to prepare the EA as required by the National Environmental Policy Act (NEPA) to assess the potential effects on the human environment of proposed alternatives and actions in Amendment 6 to the 2006 Consolidated HMS FMP. The EA will analyze potential environmental impacts of various proposed alternatives related to the Atlantic commercial shark fisheries consistent with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and other relevant Federal Laws.
NMFS tentatively expects to release the EA for Amendment 6 to the 2006 Consolidated HMS FMP in September 2014.
Members of the public requesting background material on Amendment 6 to the 2006 Consolidated HMS FMP should contact LeAnn Hogan by phone or by mail at 1315 East-West Highway, Silver Spring, MD 20910.
LeAnn Hogan by phone: (301) 427–8503, or by fax: (727) 824–5398.
The Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Act. The 2006 Consolidated HMS FMP is implemented by regulations at 50 CFR part 635. The NOI published on September 16, 2011 (76 FR 57709) that announced NMFS' intent to consider catch shares for the Atlantic shark fisheries and established a control date for eligibility to participate in any potential catch share program. While NMFS received a variety of comments on the 2011 NOI, many of the commenters opposed the idea of catch shares for the Atlantic shark fisheries. These NOI comments, along with recent shark fishery trends and management changes, have led NMFS to re-consider whether catch shares are the best management tool for the Atlantic shark fisheries at this time. Catch shares remain a potential future management tool that could address some of the issues in the Atlantic shark fisheries. At this time, short-term management measures may better address the current issues facing these fisheries, while potentially economically benefitting the Atlantic shark fisheries. NMFS therefore intends to move forward with a proposal for short-term management measures for the Atlantic shark fisheries that will achieve the goals and objectives of increasing management flexibility to achieve optimum yield while rebuilding overfished stocks and
16 U.S.C 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to approve and implement regulations to implement Framework Adjustment 8 to the Monkfish Fishery Management Plan. The New England and Mid-Atlantic Fishery Management Councils developed Framework Adjustment 8 to revise existing monkfish day-at-sea allocations and landing limits to better achieve optimum yield in each fishery management area. Framework Adjustment 8 would also revise biological reference points for the monkfish stocks in the Northern and Southern Fishery Management Areas based on an updated stock assessment, allow vessels issued a limited access monkfish Category H permit to fish throughout the Southern Fishery Management Area, and enable vessels to use an allocated monkfish-only day-at-sea at any time throughout the fishing year.
Public comments must be received by June 11, 2014.
You may submit comments on this document, identified by NOAA–NMFS–2013–0173, by any of the following methods:
•
•
New England Fishery Management Council staff prepared an environmental assessment (EA) for Monkfish Framework Adjustment 8 that describes the proposed action and other considered alternatives. The EA provides a thorough analysis of the biological, economic, and social impacts of the proposed measures and other considered alternatives. Staff from the Northeast Fisheries Science Center also prepared an Initial Regulatory Flexibility Analysis (IRFA) for this action. The IRFA is contained in the EA prepared for this action, but also summarized in the Classification section of this proposed rule. Copies of the Framework 8 EA are available on request from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. This document is also available from the following internet addresses:
Douglas Christel, Fishery Policy Analyst, (978) 281–9141, fax (978) 281–9135.
The monkfish fishery is jointly managed under the Monkfish Fishery Management Plan (FMP) by the New England and the Mid-Atlantic Fishery Management Councils. The fishery extends from Maine to North Carolina from the coast out to the continental margin. The Councils manage the fishery as two management units, with the Northern Fishery Management Area (NFMA) covering the Gulf of Maine and northern part of Georges Bank, and the Southern Fishery Management Area (SFMA) extending from the southern flank of Georges Bank through the Mid-Atlantic Bight to North Carolina. The monkfish fishery is primarily managed by landing limits and a yearly allocation of monkfish days-at-sea (DAS) calculated to enable vessels participating in the fishery to catch, but not exceed, the annual catch limit (ACL) in each management area. Catch levels are typically set every 3 years, but can be continued or revised at any time based upon updated stock assessments or other relevant information, as appropriate, through the framework adjustment process. Further, based on a yearly evaluation of the monkfish fishery, the Councils may revise existing management measures, including DAS allocations and landing limits, to better achieve the goals and objectives of the FMP and achieve optimum yield (OY), as required by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
The Councils developed Framework 8 to incorporate the results of the latest
Current catch limits and associated management measures for the monkfish fishery were implemented under Amendment 5 for the SFMA and under Framework 7 for the NFMA (76 FR 66192; October 26, 2011) based on the results of the 50th Stock Assessment Workshop (SAW 50) in 2010. Since then, an operational assessment was conducted in April 2013 to update the status of monkfish stocks, and provide projections to assist with setting future catch levels based on additional survey and catch data available since SAW 50. The 2013 assessment update revised existing biological reference points (see Table 3 below), and concluded that the two stocks of monkfish are neither overfished nor subject to overfishing based on these revised reference points. However, the assessment panel report noted that retrospective patterns persisted for both stocks, with the assessment continuing to consistently underestimate the fishing mortality rate (F) and overestimate biomass.
The New England Council's Scientific and Statistical Committee (SSC) met on May 16, 2013, and again on August 20, 2013, to discuss the 2013 monkfish stock assessment update, and develop recommendations for acceptable biological catch (ABC) in each management area beginning in fishing year (FY) 2014. Due to uncertainty in the assessment results noted by the assessment panel, the SSC considered analysis by the Monkfish Plan Development Team (PDT) that corrected for retrospective bias noted in the 2013 assessment update and explored the use of alternative approaches to calculating the fishing mortality rate (F) that were independent from the assessment model. However, the PDT indicated that there were analytical difficulties calculating retrospectively adjusted F, and the SSC concluded that alternative estimates of F were too reliant on highly uncertain life history parameters. After extensive discussion, the SSC observed that the updated assessment provides both positive and negative indications of stock status. Data suggest that both stocks are above biomass targets, F is below F
The Councils considered the results of the 2013 assessment update, the PDT analysis, and the advice of the SSC when developing measures in Framework 8. Although the Councils considered alternative estimates of management uncertainty (a reduction in catch levels based on a consideration of the effectiveness of management measures at achieving desired catch levels), the Councils did not elect to change existing monkfish ABCs, ACLs, ACTs, or total allowable landing (TAL) amounts for either monkfish stock under this action. The Councils concluded that existing management uncertainty buffers were sufficient at ensuring that ACLs are not exceeded, and that overfishing does not occur. As a result, existing catch levels are not revised by this action, and would remain in place until changed by a future management action (see Table 1).
Because Framework 8 was not adopted by both Councils until late February, it was not possible to approve and implement any of the proposed management measures included in Framework 8 and summarized below until after the start of FY 2014 on May 1, 2014. The measures effective during FY 2013 were implemented under an emergency action published on April 30, 2013 (78 FR 25214), and revised on October 25, 2013 (78 FR 63892), but expire on April 30, 2014. Therefore, the measures in effect at the start of FY 2014 reflect those implemented under Amendment 5 for the SFMA and under Framework 7 for the NFMA and last effective during FY 2012 (see Table 2 for a summary of the measures). Consistent with the regulations at 50 CFR 648.96(a)(3)(iv), any monkfish DAS used by a vessel on or after the start of FY 2014 will be counted against any monkfish DAS allocation the vessel ultimately receives during FY 2014 upon the implementation of measures approved under Framework 8.
This action proposes to maintain the methods used to calculate these biological and management reference points originally adopted under Amendment 5 in 2011, but update the resultant values to be consistent with those recommended by the SSC and the best available scientific information from the 2013 monkfish assessment update (see Table 3). The reference points currently established in the Monkfish FMP are used to determine if overfishing is occurring on either stock (F
Under the methods adopted in Amendment 5, OFL is calculated as the product of F
This action would revise existing monkfish DAS allocations and landing limits to help increase monkfish landings and the proportion of the TAL and ACT caught in each area. The Councils sought to achieve a balance among competing factors by increasing monkfish fishing opportunities and associated landings and fishing revenue, without excessively increasing catch and F to such a degree that may unintentionally adversely impact monkfish stocks or reduce market price due to a greater influx of monkfish landings throughout the FY. Under this action, all limited access monkfish permits would be allocated a total of 46 monkfish DAS, of which up to 32 may be used in the SFMA. This represents a 6–DAS increase in a permit's total monkfish DAS allocation, and a 4–DAS increase in the number of monkfish DAS that may be used in the SFMA. Each permit's monkfish DAS allocation would then be reduced by a small amount to set aside 500 monkfish DAS under the Monkfish Research Set Aside (RSA) program, as required by the existing regulations at § 648.92(b)(1)(v). Each vessel's contribution to RSA DAS is calculated by dividing 500 RSA DAS by the total number of limited access monkfish permits issued in the previous FY. In 2013, 627 limited access monkfish permits were issued. Therefore, each permit's monkfish RSA contribution would be reduced by 0.8 DAS (500 RSA DAS ÷ 627 permits). Deducting these RSA set aside DAS from each vessel's monkfish DAS allocation would leave 45.2 monkfish DAS (46 DAS–0.8 DAS) allocated to each limited access monkfish permit starting in FY 2014.
The proposed changes to monkfish landing limits in each area reflect the predominant source of monkfish landings in each area. In the NFMA, a
Monkfish DAS allocations and landing limits for vessels electing to participate in the Offshore Fishery Program in the SFMA and issued a limited access Category F permit are calculated separately. As outlined in § 648.95(g)(2), the monkfish DAS allocation for each Category F permit is calculated by dividing the daily landing limit when fishing under the Offshore Fishery Program (1,600 lb (726 kg) tail weight) by the SFMA monkfish landing limit applicable to the vessel's monkfish limited access permit category, and then multiplying that number by the vessel's monkfish DAS allocation. For example, under the proposed monkfish DAS allocations and SFMA landing limits, a limited access Category C permit would be allocated 17.5 monkfish DAS under the Offshore Fishery Program [(610 lb (277 kg) Category C SFMA landing limit ÷ 1,600 lb (726 kg) Offshore Fishery Program landing limit) × 46 allocated monkfish DAS]. Similarly, a limited access Category D permit participating in the Offshore Fishery Program would be allocated 14.4 monkfish DAS to participate in this program [(500 lb (277 kg) Category D SFMA landing limit ÷ 1,600 lb (726 kg) Offshore Fishery Program landing limit) × 46 allocated monkfish DAS]. Any carryover monkfish DAS will be included in the calculation of monkfish DAS for Category F vessels.
This action would revise the regulations at § 648.92(b)(2) to allow Category C and D vessels to use monkfish-only DAS at any time throughout the FY. Existing regulations require that a vessel issued a limited access monkfish Category C or D permit use available groundfish DAS when fishing under a monkfish DAS. Such a vessel could only use available monkfish-only DAS (the difference between a vessel's allocation of monkfish and groundfish Category A DAS) after all groundfish DAS had already been used. The proposed changes would help vessels maximize the economic value of monkfish fishing opportunities by enabling vessels to use monkfish-only DAS to selectively target monkfish earlier in the FY with minimal by-catch of groundfish, and later use both monkfish and groundfish DAS to fish for monkfish when groundfish are more abundant and could be landed in greater amounts.
This action proposes to modify the northern boundary line applicable to monkfish limited access Category H vessels to be consistent with the northern boundary of the SFMA. Category H vessels were originally allowed to fish for monkfish south of 38°20′ N lat. under Amendment 2 (April 28, 2005; 70 FR 21927). This boundary line was moved northward by 20 miles (32.2 km) under Framework 4 (September 21, 2007; 72 FR 53942) to 38° 40′ N lat. to increase opportunities to fish following the implementation of sea turtle closure areas. To provide even greater operational flexibility to vessel operators and enable them to maximize opportunities to fish for monkfish, this action would enable Category H vessels to fish throughout the SFMA.
This proposed rule would correct a number of inadvertent errors, omissions, and ambiguities in existing regulations in order to ensure consistency with, and accurately reflect the intent of, previous actions under the FMP, or to more effectively administer and enforce existing and proposed provisions pursuant to the authority provided to the Secretary of Commerce in section 305(d) of the Magnuson-Stevens Act. The following proposed measures are listed in the order in which they appear in the regulations.
In § 648.2, a definition of “monkfish-only DAS” would be inserted to clarify the use of that term in the monkfish effort-control program provisions specified at § 648.92. The proposed definition is based upon existing language in § 648.92(b)(2) that was originally implemented under Amendment 13 to the Northeast (NE) Multispecies FMP (April 27, 2004; 69 FR 22906). However, that text did not specify when monkfish-only DAS would be calculated or how such DAS balances would be maintained throughout the FY. The revised text would specify that a permit's initial allocation of monkfish-only DAS would be based upon the difference between a permit's monkfish and NE multispecies Category A DAS allocation at the beginning of the FY, but may vary throughout the fishing year based upon the acquisition or relinquishment of groundfish DAS under the NE Multispecies DAS Leasing Program.
In § 638.92, paragraph (b)(3) would be revised to state that, with the exception of monkfish DAS charged when fishing with gillnet gear pursuant to § 648.92(b)(8)(v), all monkfish DAS
In § 648.93, paragraph (b) would be deleted. This paragraph is redundant with paragraph (a), as both paragraphs list the minimum size of monkfish. In addition, paragraphs (a)(1) and (a)(2) would be designated as paragraphs (a) and (b), respectively, to clarify the organization of the remaining provisions.
In § 648.94, paragraph (f) would be revised to clarify that a vessel operator may declare his/her intent to fish in the NFMA via the vessel monitoring system (VMS) or the interactive voice response (IVR) call-in system. The current regulations require a vessel operator to declare his/her intent to fish in the NFMA via VMS. However, since the use of VMS in the monkfish fishery is voluntary, this action would clarify that either VMS or IVR could be used.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent with the Monkfish FMP, Framework 8, provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. NMFS, in making a final determination, will take into account the data, views, and comments received during the comment period.
Pursuant to Executive Order 12866, the Office of Management and Budget has determined that this proposed rule is not significant.
This proposed rule does not contain policies with Federalism or takings implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.
The New England Council prepared an EA for Framework 8 to the Monkfish FMP that discusses the impact on the environment as a result of this action. A copy of the EA is available from the Council (see
An IRFA has been prepared for this rule, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities, and consists of the draft IRFA in Framework 8, this preamble, and the following summary. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble to this proposed rule and in the background, purpose, and need discussion (Section 2.0) of the EA prepared for this action. A copy of this analysis is available from the New England Council (see
The Councils fully analyzed and considered three principal alternatives for changes to monkfish DAS and landing limits in the NFMA, and four alternatives for similar measures in the SFMA (see Table 5). Two alternatives (No Action and the proposed alternative described above) were each considered for modifying monkfish DAS usage provisions and the Category H border. The proposed action would eliminate the existing prohibition on using monkfish-only DAS until all groundfish DAS have been used, while the No Action Alternative would retain this prohibition. The proposed action would also revise the current northern border for Category H vessels to reflect the SFMA boundary, while the No Action Alternative would retain the northern border at 38°40′ N. lat. For a more complete description of the alternatives considered in this action, refer to the EA prepared for this action (see
This proposed rule does not duplicate, overlap, or conflict with other Federal rules.
This proposed action does not contain any new recordkeeping or reporting requirements, and does not impose any additional costs to affected vessels.
The proposed action would affect any vessel issued a valid Federal limited access monkfish permit. As of April 1, 2014, 625 limited access monkfish permits were issued during FY 2013, including 20 Category A permits, 41 Category B permits, 279 Category C permits, 264 Category D permits, 14 Category F permits, and 7 Category H permits. Also, there were 1,594 open access Category E monkfish permits. In recent years, the number of active permits (i.e., those actually landing monkfish during the FY) has been lower than the number issued permits. Therefore, it is likely that a subset of these entities will be affected by this action. A more complete description of the monkfish fishery is found in Section 4.0 of the EA prepared for this action (see
The Small Business Administration (SBA) defines a small business in the finfish fishing sector (NAICS code 114111) as a firm or affiliate group with gross revenue less than $19.0 million; and the shellfish fishing sector (NAICS code 114112) as a firm or affiliate group
The economic value of monkfish landings depends upon several factors, including the area fished (NFMA vs. SFMA); whether the vessel is directly targeting monkfish (i.e., fishing under a monkfish DAS), or landing monkfish incidentally when targeting another species; volumes landed; and market category landed. Together, these factors may affect realized economic impacts that may differ from those analyzed in support of this action and described below.
Estimates of the economic impacts from adjustments to monkfish DAS allocation/usage limit and landing limits were derived using a model that incorporated proportional increases in monkfish landings based on the fishing patterns observed during FY 2012. Resultant projected landings for each alternative were then multiplied by the expected market price after incorporating a flexibility assumption of −0.41 percent assumed to apply throughout the fishery. This means that for every 1-percent increase in monkfish landings, it is expected that price would decrease by 0.41 percent. Under these assumptions, even if the proposed measures would not change landings for a vessel compared to FY 2012, ex-vessel revenues could decrease due to increased monkfish landings in another area by other vessels. It should be noted that this price flexibility assumption was based on a very small sample set. Further, monkfish revenue recorded during periods in which similar amounts of monkfish expected under this action were landed suggests that the price flexibility assumption may actually underestimate benefits associated with proposed measures (i.e., market price may not fall as much as expected despite increased monkfish landings). Therefore, the revenue streams listed below may provide a lower bound for potential economic benefits resulting from this action. A detailed description of the methods used to estimate economic impacts of the proposed action is provided in the Framework 8 EA (see
Under the combination of proposed measures described above, Framework 8 analysis estimated overall monkfish revenues would be approximately $21.7 million during FY 2014. The proposed measures would result in approximately an 11.3-percent increase in revenue across all ports, with minor to significant positive economic impacts across all individual ports and increased revenues for all vessel size classes ranging from 15 to 18.5 percent. However, it is expected that ex-vessel price would decrease by approximately 7.8 percent overall due to the price flexibility associated with increased monkfish landings throughout the fishery. Of the 629 small entities that would be directly affected under the proposed action, 309 would likely have a net decline in revenues, while 319 would likely have an increase in net revenues under the proposed action. The mean change would be +0.7 percent, suggesting that mean effect of this action would be positive in terms of vessel revenues. Only one entity would have a decrease in expected revenues greater than 5 percent, and a total of 11 entities would have a decrease in expected revenues greater than 1 percent. The potential economic impacts may change, however, if the price flexibility assumption proves incorrect, or if vessel operators can alter fishing behavior in a manner that would offset any potential losses.
Considered separately, the proposed measures for the NFMA would likely result in about $10.7 million in vessel revenue from monkfish alone, while proposed measures for the SFMA would likely result in about $11.9 million in vessel revenue from monkfish. When compared to other alternatives considered, the proposed NFMA measures would result in approximately $0.6 million more in revenue than existing measures (No Action Alternative), but about $650,000 less revenue than Alternative 2 measures (increasing monkfish DAS allocations to 64 DAS while maintaining existing monkfish landing limits). The proposed SFMA measures would result in about $0.7 million more monkfish revenue than expected under existing measures (No Action Alternative), $3.2 million less monkfish revenue than under Alternative 3 (increasing monkfish DAS allocations to 51 DAS while maintaining existing monkfish landing limits) and $1.5 million more in monkfish revenue than under Alternative 4 (existing monkfish DAS usage limit, but higher directed landing limits).
The other two measures proposed under Framework 8 (allowing monkfish DAS to be used throughout the year and Category H permits to fish throughout the SFMA) are expected to generally increase monkfish fishing opportunities and increase the operational efficiency of affected entities. By allowing monkfish-only DAS to be used at any time throughout the FY, vessels can more effectively target monkfish earlier in the FY when monkfish are more prevalent, and preserve monkfish-groundfish combination DAS until groundfish are more readily available later in the FY, particularly in the SFMA. This could increase vessel returns for monkfish Category C and D vessels by allowing vessels to land more groundfish later in the FY under both a monkfish and groundfish DAS. Similarly, Category H vessels would have additional flexibility to fish for monkfish throughout the SFMA rather than being confined to fishing below 38°40′ N. lat. and during times when turtle and harbor porpoise measures allow. Under both proposed measures, it is likely that affected entities will benefit from such changes, although precise economic benefits would depend upon the composition and volume of catch associated with any additional monkfish effort realized from such gains in efficiency and operational flexibility.
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:
16 U.S.C. 1801
(b) * * *
(1) * * *
(i)
(ii)
(2)
(ii)
(iii)
(B) A vessel issued a limited access monkfish Category C, D, F, G, or H permit that leases NE multispecies DAS to another vessel(s), pursuant to § 648.82(k), must forfeit a monkfish DAS for each NE multispecies DAS that the vessel leases, equal in number to the difference between the number of remaining NE multispecies DAS and the number of unused monkfish DAS at the time of the lease. For example, if a lessor vessel that had 31 unused monkfish DAS and 35 allocated NE multispecies DAS leased 10 of its NE multispecies DAS to another vessel, the lessor would forfeit 6 of its monkfish DAS (10-(35 NE multispecies DAS–31 monkfish DAS) = 6).
(3)
(9) * * *
(i) A vessel issued a limited access monkfish Category G or H permit may fish under a monkfish DAS only in the SFMA, as defined at § 648.91(b).
(b) * * *
(1) * * *
(ii)
(2) * * *
(i)
(ii)
(3) * * *
(i)
(c) * * *
(1) * * *
(i)
(f)
(a) * * *
(2) A vessel issued a limited access monkfish Category C or D permit that applies for and is issued a Category F permit remains subject to the provisions specific to Category C and D vessels, unless otherwise specified under this subpart F.
(c)
(e) * * *
(3) A vessel issued a limited access monkfish Category F permit fishing on a monkfish DAS is subject to the minimum mesh size requirements specified in § 648.91(c)(1)(i) and (c)(1)(iii), as well as the other gear requirements specified in § 648.91(c)(2) and (c)(3).
(f)
(g)
(3) A vessel issued a limited access monkfish Category F permit that is fishing under a NE multispecies DAS in the NFMA is subject to the incidental landing limit specified at § 648.94(b)(3).
(4) When not fishing on a monkfish DAS, a vessel issued a limited access monkfish Category F permit may fish under the regulations applicable to the monkfish incidental catch (Category E) permit, specified at § 648.94(c).
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques and other forms of information technology.
Comments regarding this information collection received by June 26, 2014 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street NW., Washington, DC, 20503. Commentors are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Rural Development, USDA.
Notice of Public Listening Session.
As part of our implementation of the Agricultural Act of 2014 (commonly referred to as the 2014 Farm Bill), Rural Development is hosting a listening session for public input about the Strategic Economic and Community Development priority funding to be made available for certain Rural Development programs. The 2014 Farm Bill contains a provision outlining the details of this priority funding in
The listening session will provide an opportunity for stakeholders to voice their comments, concerns, or requests regarding the implementation of this priority funding.
Instructions regarding registering for and attending the listening session are in the
The listening session will be held in Room 108–A of the Whitten Building at 14th Street and Independence Ave. SW., Washington, DC 20250. We invite you to participate in the listening session. The listening session is open to the members of the public who register (see below).
For participants who cannot make it to the listening session in person, remote participation will be available:
• Dial 1–800–981–3173 and enter Conference ID: 5173.
We invite all participants to submit comments by any of the following methods:
• Federal eRulemaking Portal: Go to
• Orally at the listening session; please also provide a written copy of your comments online as specified.
Primary program point of contact is Chad Maisel, Phone: 202–720–4581, Email:
On February 7, 2014, the 2014 Farm Bill (Pub. L. 113–79) was signed into law. The Secretary of Agriculture and the respective USDA agencies, including Rural Development, are working to implement the provisions of the 2014 Farm Bill as expeditiously as possible to meet the needs of stakeholders. To plan and implement the newly authorized Strategic Economic and Community Development priority funding, it is important to engage with our stakeholders to learn and understand their comments, concerns, or requests.
Rural Development will hold the Strategic Economic and Community Development priority funding listening session on Thursday, June 5, 2014, to receive oral comments from stakeholders and the public. Oral comments received from this listening session will be documented and/or recorded. All attendees of this listening session who submit oral comments are requested to submit a written copy to help Rural Development accurately capture public input. (See the
At the listening session, the focus is for Rural Development to hear from the public; this is not a discussion with Rural Development officials or a question and answer session. As noted above, the purpose is to receive public input that Rural Development can consider in order to implement the Strategic Economic and Community Development provision of the 2014 Farm Bill. Rural Development is interested in receiving input on all aspects on the implementation of this provision, including, but not limited to, defining “multi-jurisdictional” and “strategic economic and community development plan” and application requirements for applicants seeking funding under this provision.
The listening session will begin with brief opening remarks from USDA leadership in Rural Development. Individual speakers providing oral comments are requested to be succinct (no more than 5 min) as we do not know at this time how many participants there will be. As noted above, we request that speakers providing oral comments also provide a written copy of their comments. (See the
Space for attendance at the listening session is limited. Due to USDA headquarters security and space requirements, all persons wishing to attend the listening session in person or via phone must send an email to
• First Name
• Last Name
• Organization
• Title
• Phone Number
• City
• State
Upon arrival at the USDA Whitten Building, registered persons must provide valid photo identification in order to enter the building; visitors need to enter the Whitten Building on the mall side. Please allow extra time to get through security. Additional information about the listening session, agenda, directions to get to the listening session, and how to provide comments is available at the USDA Farm Bill Web site
All written comments received will be publicly available on
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Department of Agriculture, Forest Service, will prepare an environmental impact statement (EIS) that evaluates an amendment to the 2008 Tongass National Forest Plan. The Record of Decision will consider and identify changes, if any, to the current 2008 Forest Plan.
Comments concerning the scope of the analysis must be received by June 26, 2014. The draft environmental impact statement is expected to be mailed by August 2015, which will begin a 90-day public comment period. Public meetings and subsistence hearings will be scheduled during the 90-day comment period. The Record of Decision is expected to be signed by August 2016.
Send written comments to: Forest Supervisor, Tongass National Forest, Attn: Forest Plan Amendment, 648 Mission Street Ketchikan, AK 99901. Comments may also be sent via email to:
Additional information is available on the Tongass Forest Plan Internet site at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
On July 2, 2013, Secretary of Agriculture Thomas Vilsack issued Memorandum 1044–009,
To conserve the Tongass National Forest under the principles of the Multiple-Use Sustained-Yield Act of 1960, Tongass Timber Reform Act and other relevant statutes, we must speed the transition away from old-growth timber harvesting and towards a forest industry that utilizes second growth—or young growth—forests. Moreover, we must do this in a way that preserves a viable timber industry that provides jobs and opportunities for residents of Southeast Alaska. . . USDA's goal is to effectuate this transition over the next 10 to 15 years, so that at the end of this period the vast majority of timber sold by the Tongass will be young growth.
The Secretary's Memorandum also asks the Forest Service to take several steps needed to achieve this goal, including:
Strongly consider whether to pursue an amendment to the Tongass Forest Plan. Such an amendment would evaluate which lands will be available for timber harvest, especially young growth timber stands, which lands should be excluded, and additional opportunities to promote and speed transition to young growth management.
The Forest Service has also recently completed a 5-year review of the Tongass National Forest Land and Resource Management Plan (Forest Plan). Based on that review and the Secretary's Memorandum, the Forest Service has determined that the Forest Plan needs to be changed to accomplish the transition to a timber sale program on the Tongass based primarily on young growth management within the next 10 to 15 years, while maintaining a viable timber industry and increasing the use of young growth, as specified by the Secretary in Memorandum 1044–009. The Forest Service is initiating the process to amend the Forest Plan under the forest planning regulations found at 36 CFR part 219. As called for in the Secretary's Memorandum, the Forest Service is establishing an advisory committee under the Federal Advisory Committee Act to provide advice on how to expedite the transition to young growth management, which may include advice on how to amend the Forest Plan.
The Forest Service is preparing an Environmental Impact Statement (EIS) to describe the effects of making proposed changes to the Tongass Forest Plan to accomplish the transition to young growth management as provided in the Secretary's Memorandum. The Forest Service will evaluate which lands should be available for timber harvest, especially young growth timber stands, and any proposed changes to standards and guidelines and other management direction to promote and speed the transition to young growth management while maintaining a viable timber industry in Southeast Alaska. It will also evaluate other changes suggested in the 5-year review.
The Forest Service proposes to amend the Tongass Forest Plan, using the 2012 Planning Rule, as needed to accomplish the transition to young growth management over the next 10 to 15 years while retaining the expertise and infrastructure of a viable timber industry in Southeast Alaska, as outlined by the Secretary in Memorandum 1044–009. The amendment process will address: Identifying areas suitable and not suitable for timber harvest to achieve the transition to young growth management; whether the Tongass needs to be able to harvest young growth forest stands before they reach their maximum rate of growth; what changes in management direction should be made to promote young growth management; whether the inventory of roadless areas should be updated, which may require additional rulemaking; whether changes are needed to provide for development of hydropower; updating the upper limit on the quantity of timber that may be sold from the Tongass to reflect other changes made; and how to modify the monitoring provisions of the Plan as required by the 2012 Planning Rule, including identifying focal species to monitor instead of management indicator species as required by the former planning regulations. The amendment process may address other topics relevant to promoting and speeding the transition to young growth management. It is not expected that changes made to the Tongass Forest Plan will affect the overall integrity of the Plan's conservation strategy.
The Forest Supervisor of the Tongass National Forest is the Responsible Official for this amendment.
The Responsible Official will decide what changes to make to the Tongass Forest Plan to accomplish the transition to young-growth management as directed by the Secretary in Memorandum 1044–009.
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. A variety of methods will be used to notify and involve the public. One of the primary methods for communicating with the public will be through a Forest Planning Web site. This site will include a variety of information about the Forest Plan Amendment process, including descriptions of the planning process, work products and evaluation reports, newsletters, draft and final EIS, and other key documents. The posting of work products and evaluation reports throughout the process will be accompanied by a request for public comment and a defined public comment period. In this way, public participation will be an ongoing process and public input through comments will influence the process as it evolves. The Web site will also provide electronic methods for providing comments (email or direct on-line entry) and may be used for public open houses or hearings. It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered, however.
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice and request for comments.
This notice announces the Grain Inspection, Packers and Stockyards Administration's (GIPSA) intention to request that the Office of Management and Budget (OMB) approve a 3-year extension of a currently approved information collection for the “Reporting and Recordkeeping Requirements under the United States Grain Standards Act (USGSA) and under the Agricultural Marketing Act of 1946 (AMA).” This approval is required under the Paperwork Reduction Act of 1995 (PRA).
We will consider comments that we receive by July 28, 2014.
We invite you to submit comments on this notice. You may submit comments by any of the following methods:
• Internet: Go to
• Mail, hand delivery or courier to: Irene Omade, GIPSA, USDA, 1400 Independence Avenue SW., Room 2530–S, Washington, DC 20250–3604.
• Fax: (202) 690–2173.
Congress enacted the United States Grain Standards Act (USGSA) (7 U.S.C. 71—87k) and the Agricultural Marketing Act (AMA) (7 U.S.C. 1621—1627) to facilitate the marketing of grain, oilseeds, pulses, rice, and related commodities. These statutes provide for the establishment of standards and terms which accurately and consistently measure the quality of grain and related products, provide for uniform official inspection and weighing, provide regulatory and service responsibilities, and furnish the framework for commodity quality improvement incentives to both domestic and foreign buyers. GIPSA's Federal Grain Inspection Service (FGIS) establishes policies, guidelines, and regulations to carry out the objectives of the USGSA and the AMA. Regulations appear at 7 CFR parts 800, 801, and 802 for the USGSA and 7 CFR part 868 for the AMA.
The USGSA, with few exceptions, requires official inspection of export grain sold by grade. Official services are provided, upon request, for grain in domestic commerce. The AMA authorizes similar inspection and weighing services, upon request, for rice, pulses, flour, corn meal, and certain other agricultural products. Conversely, the regulations promulgated under the USGSA and the AMA require specific information collection and recordkeeping necessary to carry out requests for official services. Applicants for official services must specify the kind and level of service, the identification of the product, the location, the amount, and other pertinent information in order that official personnel can efficiently respond to their needs.
Official services under the USGSA are provided through FGIS field offices and delegated and/or designated State and private agencies. Delegated agencies are State agencies delegated authority under the USGSA to provide official inspection service, Class X or Class Y weighing services, or both, at one or more export port locations in the State. Designated agencies are State or local governmental agencies or persons designated under the USGSA to provide official inspection services, Class X or Class Y weighing services, or both, at locations other than export port locations. State and private agencies, as a requirement for delegation and/or designation, must comply with all regulations, procedures, and instructions in accordance with provisions established under the USGSA. FGIS field offices oversee the performance of these agencies and provide technical guidance as needed.
Official services under the AMA are performed, upon request, on a fee basis for domestic and export shipments either by FGIS employees, individual contractors, or cooperators. Contractors are persons who enter into a contract with FGIS to perform specified sampling and inspection services. Cooperators are agencies or departments of the Federal Government which have an interagency agreement, State agencies, or other entities which have a reimbursable agreement with FGIS.
As required by the PRA (44 U.S.C. 3506(c)(2)(A)) and its implementing regulations (5 CFR 1320.8(d)(1)(i)), GIPSA specifically requests 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, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Rural Utilities Service, USDA.
Notice and request for comments; correction.
The Rural Utilities Service (RUS) published a document in the
Comments on this notice must be received by July 28, 2014.
Michele L. Brooks, Director, Program Development and Regulatory Analysis, Rural Utilities Service, 1400 Independence Ave. SW., STOP 1522, Room 5162, South Building, Washington, DC 20250–1522. Telephone: (202) 690–1078, FAX: (202) 720–8435 or email
The Office of Management and Budget's (OMB) regulation (5 CFR part 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104–13) requires that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d)). This notice identifies an information collection that RUS is submitting to OMB for approval.
Comments are invited on: (a) Wwhether 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; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to: Michele L. Brooks, Director, Program Development and Regulatory Analysis, Rural Utilities Service, U.S. Department of Agriculture, STOP 1522, 1400 Independence Ave. SW., Washington, DC 20250–1522. Telephone (202) 690–1078, FAX: (202)720–8435 or email
Copies of this information collection can be obtained from Rebecca Hunt, Program Development and Regulatory Analysis, at (202) 205–3660, FAX: (202)720–8435 or email:
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a–81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to expand FTZ 84 is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, to the Board's standard 2,000-acre activation limit for the overall zone, and to a sunset provision that would terminate authority on May 31, 2019, for Sites 28 and 29 where no activity has occurred under FTZ procedures before that date.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the South Carolina State Ports Authority, grantee of FTZ 38, requesting production authority on behalf of Kravet Inc. (Kravet), within Subzone 38G located in Anderson, South Carolina. The application conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.23) was docketed on May 20, 2014.
The Kravet facility (275 employees, 66.5 acres) is located within Subzone 38G. The facility is used for the cutting and tagging of textiles, paper wall coverings and decorative trimmings to be used as samples. Production under FTZ procedures could exempt Kravet from customs duty payments on the foreign components used in export production. The company anticipates that some 12 percent of the plant's shipments will be exported. On its domestic sales, Kravet would be able to choose the duty rates during customs entry procedures that apply to commercial samples of fabric, paper wall coverings and decorative trimmings (duty-free) for the foreign inputs noted below. Customs duties also could possibly be deferred or reduced on foreign status production equipment. The request indicates that the savings from FTZ procedures would help improve the plant's international competitiveness.
Components and materials sourced from abroad (representing 20% of the value of the finished product) include: vinyl-based decorative wall coverings; imitation patent leather, PVC-based and polyurethane-based decorative upholstery products; analine dyed leather hides; leather hides for upholstery use; decorative wallpapers; silk-based fabrics for upholstery or drapery use; wool-based, horsehair-based and striped cotton decorative upholstery fabrics; boucle-style cotton/poly decorative upholstery fabrics; printed cotton and embroidered satin twill decorative multipurpose fabrics; sheer cotton decorative drapery fabrics; cotton-based, cotton-texture, cotton twill, printed cotton-blend, cotton-blend and cotton decorative multipurpose fabrics; printed and embroidered cotton decorative multipurpose fabrics; plain textured cotton decorative multipurpose fabrics; cotton denim decorative upholstery fabrics; cotton texture and velvet decorative upholstery fabrics; printed and embroidered cotton decorative multipurpose fabrics; cotton blend decorative drapery fabrics; cotton blend textured or embroidered decorative multipurpose fabrics; cotton blend satin decorative multipurpose fabrics; embroidered linen decorative upholstery fabrics; cotton blend ottoman decorative multipurpose fabrics; cotton blend decorative upholstery fabrics; cotton, cotton-blend, cotton-texture, and cotton blend textured decorative upholstery fabrics; cotton and silk blend decorative upholstery fabrics; cotton and linen blend decorative upholstery fabrics; cotton and linen blend printed decorative upholstery fabrics; embroidered linen decorative drapery fabrics; linen blend embroidered decorative drapery fabrics; cotton blend embroidered decorative drapery fabrics; linen and linen blend decorative multipurpose fabrics; raffia decorative wallcoverings; grasscloth decorative wallcoverings; hemp, jute and/or cellulose blend decorative wallcoverings and fabrics; cellulose raffia decorative wallcoverings; polyester decorative drapery fabrics; outdoor decorative upholstery fabrics; embroidered polyester decorative upholstery fabrics; nylon-based faux suede decorative upholstery fabrics; polyester decorative upholstery, multipurpose and drapery fabrics; viscose or polyester blend decorative upholstery fabrics; polyester sheers/casements decorative drapery fabrics; polyester blend decorative drapery, multipurpose and upholstery fabrics; polyester blend sheer/casement decorative drapery fabrics; embroidered polyester blend decorative multipurpose fabrics; polyester blend chenille decorative multipurpose fabrics; viscose or rayon blend decorative multipurpose fabrics; rayon blend decorative drapery fabrics; rayon/viscose blend textured decorative upholstery fabrics; rayon/viscose blend decorative upholstery fabrics; viscose/silk blend sheer/casements decorative drapery fabrics; rayon/linen blend embroidered decorative multipurpose fabrics; linen/viscose blend embroidered decorative drapery fabrics; cotton/poly blend sheer/casement decorative drapery fabrics; poly/linen blend sheer/casement decorative drapery fabrics; polyester or poly blend decorative multipurpose fabrics; acrylic or acrylic blend decorative upholstery fabrics; poly/acrylic blend decorative upholstery fabrics; poly/cotton blend sheer/casement decorative drapery fabrics; viscose/linen blend decorative upholstery fabrics; polyester and poly/linen blend sheer/casement decorative multipurpose fabrics; polyester blend decorative multipurpose fabrics; polyester/wool blend decorative upholstery fabrics; polyester/linen blend decorative multipurpose fabrics; acrylic/wool blend decorative upholstery fabrics; poly blend decorative multipurpose fabrics; viscose blend velvet decorative upholstery fabrics; viscose decorative upholstery fabrics; viscose or rayon blend decorative upholstery, multipurpose or drapery fabrics; viscose or polyester blend decorative multipurpose fabrics; rayon/poly blend decorative multipurpose fabrics; viscose/linen blend decorative upholstery fabrics; viscose blend decorative upholstery fabrics; polyester or poly blend faux suede decorative upholstery fabrics; flocked decorative wallpaper; nylon or poly blend faux suede decorative upholstery fabrics; decorative trimmings; mohair, chenille, silk velvet or velvet decorative upholstery fabrics; sheer poly decorative drapery fabrics; velvet and/or chenille decorative upholstery fabrics; sheer/casement decorative drapery fabrics; decorative tapes; metallic silk sheer decorative drapery fabrics; embroidered or crewel decorative multipurpose fabrics; linen or cotton blend embroidered decorative multipurpose fabrics; quilted decorative upholstery fabrics; vinyl decorative upholstery goods; decorative textile wallcoverings; high-durability decorative upholstery fabrics; blackout/lining drapery fabrics; faux fur decorative multipurpose fabrics; sheer/casement decorative drapery fabrics; velvet/faux suede decorative upholstery fabrics; and, decorative glass bead trimmings (duty rate ranges from duty-free to 25%).
In accordance with the FTZ Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is July 28, 2014. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to August 11, 2014.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
Elizabeth Whiteman at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a–81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to reorganize FTZ 39 to expand the service area under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, and to the Board's standard 2,000-acre activation limit for the zone.
ATTEST:
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a–81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to reorganize FTZ 15 under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, to the Board's standard 2,000-acre activation limit for the zone, to a five-year ASF sunset provision for magnet sites that would terminate authority for Sites 1, 2, 4, 7, 8, 14, 16 and 17 if not activated by May 31, 2019, and to a three-year ASF sunset provision for usage-driven sites that would terminate authority for Sites 9, 10, 11, 13 and 15 if no foreign-status merchandise is admitted for a
Bureau of Industry and Security, Commerce.
Notice.
The Department of Commerce, 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.
Written comments must be submitted on or before July 28, 2014.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616,
Requests for additional information or copies of the information collection instrument and instructions should be directed to Lawrence Hall, BIS Office of Administration, 14th and Pennsylvania Ave, NW., HCHB 6622, Washington, DC 20230, 703–675–9944,
This collection of information provides the certification of the overseas importer to the U.S. Government that specific commodities will be imported from the U.S. and will not be re-exported, except in accordance with U.S. export regulations.
Collected electronically or on paper.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Bureau of Industry and Security, Commerce.
Notice.
The Department of Commerce, 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.
Written comments must be submitted on or before July 28, 2014.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at JJessup@doc.gov).
Requests for additional information or copies of the information collection instrument and instructions should be directed to Lawrence Hall, BIS Office of Administration, 14th and Pennsylvania Ave NW., HCHB 6622, Washington, DC 20230, 703–675–9944,
The Additional Protocol requires the United States to submit declaration forms to the International Atomic Energy Agency (IAEA) on a number of commercial nuclear and nuclear-related items, materials, and activities that may be used for peaceful nuclear purposes, but also would be necessary elements for a nuclear weapons program. These forms provides the IAEA with information about additional aspects of the U.S. commercial nuclear fuel cycle, including: mining and milling of nuclear materials; buildings on sites of facilities selected by the IAEA from the U.S. Eligible Facilities List; nuclear-related equipment manufacturing, assembly, or construction; import and export of nuclear and nuclear-related items and materials; and research and development. The Protocol also expands IAEA access to locations where these activities occur in order to verify the form data.
Collected electronically or on paper.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on frontseating service valves from the People's Republic of China (“PRC”). The period of review (“POR”) is April 1, 2012, through March 31, 2013. The review covers two exporters of subject merchandise, Zhejiang DunAn Hetian Metal Co., Ltd. (“DunAn”) and Zhejiang Sanhua Co., Ltd. (“Sanhua”). The Department preliminarily finds that DunAn did not have reviewable transactions during the POR. In addition, we preliminarily determine that Sanhua made sales of subject merchandise at less than normal value during the POR. Interested parties are invited to comment on these preliminary results.
Laurel LaCivita, Enforcement and Compliance, Office III, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–4243.
The merchandise covered by this order is frontseating service valves, assembled or unassembled, complete or incomplete, and certain parts thereof of any size, configuration, material composition or connection type.
DunAn submitted a timely-filed certification indicating that it had no shipments of subject merchandise to the United States during the POR.
Based on DunAn's certification and our analysis of CBP information, we preliminarily determine that DunAn did not have any reviewable transactions during the POR. In addition, the Department finds that, consistent with its assessment practice in non-market economy (“NME”) cases, it is appropriate not to rescind the review in part in this circumstance, but rather to complete the review with respect to DunAn and issue appropriate instructions to CBP based on the final results of the review.
The Department conducted this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (“the Act”). Constructed export prices have been calculated in accordance with section 772(b) of the Act. Because the PRC is an NME within the meaning of section 771(18) of the Act, normal value has been calculated in accordance with section 773(c) of the Act.
For a full description of the methodology underlying our preliminary results,
The Department preliminarily determines that the following weighted-average dumping margin exists for the POR April 1, 2012, through March 31, 2013:
The Department intends to disclose to the parties the calculations performed for these preliminary results within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). As discussed in the Preliminary Decision Memorandum, the Department intends to place labor data from Bulgaria on the record of this review after issuing the preliminary results. Once this occurs, the Department will establish a schedule for the submission of written argument pursuant to 19 CFR 351.309(c) and (d) and a hearing pursuant to 19 CFR 351.310.
Unless otherwise extended, the Department intends to issue the final results of this administrative review, which will include the results of its
Upon issuance of the final results of this review, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
For any individually examined respondent whose weighted-average dumping margin is above
The Department announced a refinement to its assessment practice in NME cases. Pursuant to this refinement in practice, for entries that were not reported in the U.S. sales databases submitted by companies individually examined during this review, the Department will instruct CBP to liquidate such entries at the PRC-wide rate. In addition, if the Department determines that an exporter under review had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number (
The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.
The following cash deposit requirements, when imposed, will apply to all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) For DunAn, which claimed no shipments, the cash deposit rate will remain unchanged from the rate assigned to DunAn in the most recently completed review of the company; (2) for Sanhua, which has a separate rate, the cash deposit rate will be the one established in the final results of this review (except, if the rate is zero or
This notice also 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 Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing notice of these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) preliminarily determines that countervailable subsidies are being provided to producers/exporters of calcium hypochlorite from the People's Republic of China (PRC). The period of investigation is January 1, 2012, through December 31, 2012. Interested parties are invited to comment on this preliminary determination.
Katie Marksberry, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–7906.
The Department published its notice of initiation of this investigation on January 14, 2014.
The product covered by this investigation is calcium hypochlorite, regardless of form (
For a complete description of the scope of the investigation,
The Department is conducting this countervailing duty investigation in accordance with section 701 of the Act. For a full description of the methodology underlying our preliminary conclusions,
For this preliminary determination, we have relied on facts available pursuant to section776(a) of the Act for the Government of the PRC and for Hubei Dinglong Chemical Co., Ltd. (“Hubei Dinglong”) and W&W Marketing Corporation (“W&W Marketing”), the companies originally selected for individual examination,
In accordance with section 703(d)(1)(A)(i) of the Act, we calculated an estimated countervailing duty rate for the individually investigated producer/exporters of the subject merchandise, Hubei Dinglong, W&W Marketing, and Tianjin Jinbin.
With respect to the all-others rate, section 705(c)(5)(A)(ii) of the Act provides that if the countervailable subsidy rates established for all exporters and producers individually investigated are determined entirely in accordance with section 776 of the Act, the Department may use any reasonable method to establish an all-others rate for exporters and producers not individually investigated. In this case, the countervailable subsidy rate calculated for the investigated companies is based entirely on facts available under section 776 of the Act. There is no other information on the record upon which to determine an all-others rate. As a result, we have used the rate assigned for Hubei Dinglong, W&W Marketing, and Tianjin Jinbin as the all-others rate. This method is consistent with the Department's past practice.
We preliminarily determine the countervailable subsidy rates to be:
In accordance with sections 703(d)(1)(B) and (2) of the Act, we are directing U.S. Customs and Border Protection to suspend liquidation of all entries of calcium hypochlorite from the PRC that are entered, or withdrawn from warehouse, for consumption on or after the date of the publication of this notice in the
Because the Department has reached its conclusions on the basis of adverse facts available, the calculations performed in connection with this preliminary determination are not proprietary in nature, and are described in the Preliminary Decision Memorandum. Case briefs or other written comments for all non-scope issues may be submitted to IA ACCESS no later than 30 days after the publication of this preliminary determination in the
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 Enforcement and Compliance, U.S. Department of Commerce, filed electronically using Enforcement and Compliances's IA ACCESS. An electronically filed document must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by 5:00 p.m. Eastern Standard Time, within 30 days after the date of publication of this notice.
In accordance with section 703(f) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information relating to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Enforcement and Compliance.
In accordance with section 705(b)(2) of the Act, if our final determination is affirmative, the ITC will make its final determination within 45 days after the Department makes its final determination.
This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act.
The product covered by this investigation is calcium hypochlorite, regardless of form (
Calcium hypochlorite has the general chemical formulation Ca(OCl)
Calcium hypochlorite is currently classifiable under the subheading 2828.10.0000 of the Harmonized Tariff Schedule of the United States (“HTSUS”). The subheading covers commercial calcium hypochlorite and other calcium hypochlorite. When tableted or blended with other materials, calcium hypochlorite may be entered under other tariff classifications, such as 3808.94.5000 and 3808.99.9500, which cover disinfectants and similar products. While the HTSUS subheadings, the CAS registry number, the U.S. EPA PC number, and the IMDG codes are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Jeffrey Pedersen at (202) 482–2769 (the People's Republic of China (“PRC”)); or Magd Zalok at (202) 482–4162 (Taiwan), AD/CVD Operations, Enforcement and Compliance, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On January 29, 2014, the Department of Commerce (the “Department”) published a notice of initiation of antidumping duty investigations of certain crystalline silicon photovoltaic products from the PRC and and Taiwan.
Pursuant to section 733(c)(1)(B) of the Act and 19 CFR 351.205(b)(2), the Department concludes that the parties involved in these investigations are cooperating and determines that these investigations are extraordinarily complicated by reason of the number and complexity of the transactions to be investigated and adjustments to be considered and the number of firms whose activities must be investigated. Therefore, in accordance with section 733(c)(1)(B) of the Act, the Department determines that it is appropriate to postpone the preliminary determinations in these investigations. Specifically, the Department determines that a 43-day postponement of the preliminary determinations is needed in order to provide the Department with sufficient time to review and analyze questionnaire responses and issue appropriate requests for clarification and additional information.
For the reasons stated above, the Department, in accordance with section 733(c)(1)(B) of the Act, is postponing the deadline for the preliminary determinations to no later than 183 days after the date on which the Department initiated these investigations. Therefore, the new deadline for issuing these preliminary determinations is July 24, 2014. In accordance with section
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
International Trade Administration, U.S. Department of Commerce.
Notice of an open meeting.
The Renewable Energy and Energy Efficiency Advisory Committee (RE&EEAC) will meet on June 12, 2014 to consider proposed recommendations from the U.S. Competitiveness, Trade Policy, Finance and Trade Promotion Subcommittees that address issues affecting U.S. competitiveness in exporting renewable energy and energy efficiency (RE&EE) products and services. This will be the final meeting of the RE&EE Advisory Committee under its current charter.
June 12, 2014; 9:00 a.m.–5:00 p.m. Eastern Daylight Time (EDT).
The meeting will be held in room 4830 at the U.S. Department of Commerce; 1401 Constitution Avenue NW; Washington, DC 20230.
Ryan Mulholland, Office of Energy and Environmental Technologies Industries (OEEI), International Trade Administration, U.S. Department of Commerce at (202) 482–4693; email: ryan.mulholland@trade.gov. This conference call is accessible to people with disabilities. Requests for auxiliary aids should be directed to OEEI at (202) 482–4693 at least 3 working days prior to the event.
The meeting is open to the public. Members of the public wishing to attend the conference call must notify Mr. Ryan Mulholland at the contact information above by 5:00 p.m. EDT on Friday, June 6, in order to pre-register and receive call-in instructions. Please specify any request for reasonable accommodation by Friday, June 6. Last minute requests will be accepted, but may be impossible to fill.
Any member of the public may submit pertinent written comments concerning the RE&EEAC's affairs at any time before or after the meeting. Comments may be submitted to ryan.mulholland@trade.gov or to the Renewable Energy and Energy Efficiency Advisory Committee, Office of Energy and Environmental Technologies Industries (OEEI), International Trade Administration, Room 4053; 1401 Constitution Avenue, NW., Washington, DC 20230. To be considered during the meeting, comments must be received no later than 5:00 p.m. EDT on Friday, June 6, 2014, to ensure transmission to the Committee prior to the meeting. Comments received after that date will be distributed to the members, but may not be considered at the meeting.
Copies of RE&EEAC meeting minutes will be available within 30 days of the meeting.
National Oceanic and Atmospheric Administration, Commerce.
Notice.
The Department of Commerce, 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.
Written comments must be submitted on or before July 28, 2014.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Walter Ikehara, (808) 725–5175, or Walter.Ikehara@noaa.gov.
Regulations at 50 CFR 665.16 require that all U.S. vessels with Federal permits fishing for Western Pacific fishery management unit species display identification markings on the vessel and gear, as specified in 50 CFR part 665 and 50 CFR part 300. Vessels registered for use with a permit issued under Subparts B through E and Subparts G through I of 50 CFR part 665, must display the vessel's official number on both sides of the deckhouse or hull, and on an appropriate weather deck. Vessels fishing in the Western and Central Pacific Convention (WCPFC) Area with a WCPFC Area Endorsement, or required to have a WCPFC Area Endorsement, must comply with the regulations at 50 CFR 300.14 and 50 CFR 300.217. These regulations require that vessels must display their international radio call sign on both sides of the deckhouse or hull, and on an appropriate weather deck, unless specifically exempted. Regulations at 50 CFR 300.35 require that vessels fishing under the South Pacific Tuna Treaty must display their international radio call sign on the hull, the deck, and on the sides of auxiliary equipment such as skiffs and helicopters. The numbers must be a specific size at specified locations. The display of the identifying numbers aids in fishery law enforcement.
Western Pacific fisheries regulations at 50 CFR 665.128, 665.228, 665.428, 665,628 and 665.804 require that certain fishing gear must be marked. In the pelagic longline fisheries, the vessel operator must ensure that the official
Third party disclosure.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Department of Defense (DoD).
Notice of Federal Advisory Committee meeting.
The Department of Defense is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense Health Board, Public Health Subcommittee will take place.
Defense Health Headquarters (DHHQ), Conference Room 3M305, 7700 Arlington Blvd., Falls Church, Virginia 22042 (escort required; see guidance in
The Director of the Defense Health Board is Ms. Christine Bader, 7700 Arlington Boulevard, Suite 5101, Falls Church, Virginia 22042, (703) 681–6653, Fax: (703) 681–9539,
This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.150, and in accordance with section 10(a)(2) of the Federal Advisory Committee Act.
The purpose of the meeting is for the Public Health Subcommittee members to receive public comments concerning deployment pulmonary health during an open forum. The Subcommittee is reviewing evidence relevant to deployment-related pulmonary disease in Service members and veterans. Comments from the public range from insight on deployment-related pulmonary health issues to personal accounts and objective input.
Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102–3.140 through 102–3.165 and subject to availability of space, the Public Health Subcommittee meeting is open to the public from 8:00 a.m. to 10:00 a.m. on June 11, 2014. On June 11, 2014, the Public Health Subcommittee will receive public comments on deployment-related pulmonary health issues. The DFO, in conjunction with the Subcommittee Chair, may restrict speaking time per person.
A copy of the agenda or any updates to the agenda for the June 11, 2014 meeting, as well as any other materials presented in the meeting, may be obtained at the meeting.
Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102–3.140 through 102–3.165 and subject to availability of space, this meeting is open to the public. Seating is limited and is on a first-come basis. All members of the public who wish to attend the public meeting must contact Ms. Kendal Brown at the number listed in the section
Individuals requiring special accommodations to access the public meeting should contact Ms. Kendal Brown at least five (5) business days prior to the meeting so that appropriate arrangements can be made.
Any member of the public wishing to provide comments to the DHB Public Health Subcommittee may do so in accordance with 41 CFR 102–3.105(j) and 102–3.140 and section 10(a)(3) of the Federal Advisory Committee Act, and the procedures described in this notice.
Individuals desiring to provide comments to the DHB's Public Health Subcommittee may do so by submitting a written statement to the DHB Designated Federal Officer (DFO) (see
If the written statement is not received at least five (5) business days prior to the meeting, the DFO may choose to postpone consideration of the statement until the next open meeting.
The DFO will review all timely submissions with the Subcommittee Chair and ensure they are provided to members of the Public Health Subcommittee before the meeting that is subject to this notice. After reviewing the written comments, the President and the DFO may choose to invite the submitter to orally present their issue during an open portion of this meeting or at a future DHB meeting. The DFO, in consultation with the Subcommittee Chair, may allot time for members of the public to present their issues for review and discussion by the Public Health Subcommittee.
Department of Defense.
Notice.
The Department of Defense is publishing this notice to announce a Federal advisory committee meeting of the Department of Defense Military Family Readiness Council (MFRC). This meeting will be open to the public.
Wednesday, June 25, 2014, from 1:30 p.m. to 3:30 p.m.
Pentagon Conference Center B6 (escorts will be provided from the Pentagon Metro entrance).
Ms. Melody McDonald or Ms. Betsy Graham, Office of the Deputy Assistant Secretary of Defense (Military Community & Family Policy), 4800 Mark Center Drive Alexandria, VA 22350–2300, Room 3G15. Telephones (571) 372–0880; (571) 372–0881 and/or email: OSD Pentagon OUSD P–R Mailbox Family Readiness Council,
This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C. Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.150. The purpose of the Council meeting is to review and make recommendations to the Secretary of Defense regarding policy and plans; monitor requirements for the support of military family readiness by the Department of Defense; evaluate and assess the effectiveness of the military family readiness programs and activities of the Department of Defense.
Pursuant to 5 U.S.C. 552b and 41 CFR 102–3.140 through 102–3.165, this meeting is open to the public, subject to the availability of space. Persons desiring to attend may contact Ms. Melody McDonald at 571–372–0880 or email OSD Pentagon OUSD P–R Mailbox Family Readiness Council,
Pursuant to 41 CFR 102–3.105(j) and 102–3.140, and section 10(a)(3) of the Federal Advisory Committee Act of 1972, interested persons may submit a written statement for consideration by the Council. Persons desiring to submit a written statement to the Council must notify the point of contact listed in
The purpose of this meeting is to introduce and discuss Military Family Readiness Council focus items for 2014.
Introduction and discussion of 2014 Military Family Readiness Council focus items.
Exact order may vary.
National Intelligence University, Defense Intelligence Agency, Department of Defense.
Notice of closed meeting.
The Department of Defense is publishing this notice to announce that the following Federal Advisory Committee meeting of the National Intelligence University Board of Visitors has been scheduled. The meeting is closed to the public.
Tuesday, June 17, 2014 (7 a.m. to 5 p.m.) and Wednesday, June 18, 2014 (8 a.m. to 12 p.m.).
National Intelligence University, Joint Base Anacostia-Bolling, Washington, DC 20340–5100.
Dr. David R. Ellison, President, DIA National Intelligence University, Washington, DC 20340–5100, Phone: (202) 231–3344.
This meeting is being held pursuant to the provisions of Subsection (d) of Section 10 of Public Law 92–463, as amended by section 5 of Public Law 94–409.
The entire meeting is devoted to the discussion of classified information as defined in 5 U.S.C. 552b(c)(1) and therefore will be closed. Pursuant to 41 CFR 102–3.105(j) and 102–3.140, and section 10(a)(3) of the Federal Advisory Committee Act of 1972, the public or interested organizations may submit written statements to the National Intelligence University Board of Visitors about its mission and functions. Written statements may be submitted at any time or in response to the stated agenda of a planned meeting of the National Intelligence University Board of Visitors. All written statements shall be submitted to the Designated Federal
Defense Travel Management Office, DoD.
Notice of Revised Non-Foreign Overseas Per Diem Rates.
The Defense Travel Management Office is publishing Civilian Personnel Per Diem Bulletin Number 292. This bulletin lists revisions in the per diem rates prescribed for U.S. Government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States when applicable. AEA changes announced in Bulletin Number 194 remain in effect. Bulletin Number 292 is being published in the
Mrs. Sonia Malik, 571–372–1276.
This document gives notice of revisions in per diem rates prescribed by the Defense Travel Management Office for non-foreign areas outside the contiguous United States. It supersedes Civilian Personnel Per Diem Bulletin Number 291. Per Diem Bulletins published periodically in the
Notice is hereby given that the Delaware River Basin Commission will hold a public hearing on Tuesday, June 10, 2014. A business meeting will be held the following day on Wednesday, June 11, 2014. The hearing and business meeting are open to the public and will be held at the Washington Crossing Historic Park Visitor Center, 1112 River Road, Washington Crossing, Pennsylvania.
There will be no opportunity for additional public comments at the June 10 business meeting on hearing items for which the hearing was completed on June 10 or a previous date. Commission consideration on June 11 of items for which the public hearing is closed may result in either approval of the item (docket or resolution) as proposed, approval with changes, denial, or deferral. When the Commissioners defer an action, they may announce an additional period for written comment on the item, with or without an additional hearing date, or they may take additional time to consider the input they have already received without requesting further public input. Any deferred items will be considered for action at a public meeting of the Commission on a future date.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before June 26, 2014.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Jon Utz, 202–377–4040.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Innovation and Improvement, Department of Education.
Notice.
CSP Grants to Non-SEA Eligible Applicants for Planning, Program Design, and Initial Implementation and for Dissemination.
Notice inviting applications for new awards for fiscal year (FY) 2014.
Dates of Pre-Application Webinars (all times are Washington, DC time):
Deadline for Transmittal of Applications: July 11, 2014.
Deadline for Intergovernmental Review: September 24, 2014.
This notice invites applications from non-SEA eligible applicants for two types of grants: (1) Planning, Program Design, and Initial Implementation (CFDA 84.282B); and (2) Dissemination (CFDA 84.282C). Each type of grant has its own eligibility requirements and selection criteria. Information pertaining to each type of grant is provided in subsequent sections of this notice.
Non-SEA eligible applicants are those that are qualified to participate based on requirements set forth in this notice. Non-SEA eligible applicants must be from States in which the SEA does not have an approved application under the CSP. States with approved CSP applications are Arizona, Arkansas, California, Colorado, District of Columbia, Florida, Georgia, Indiana, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Rhode Island, South Carolina, Tennessee, Texas, and Wisconsin.
Non-SEA eligible applicants that propose to use grant funds for planning, program design, and initial implementation of charter schools must apply under CFDA number 84.282B. Non-SEA eligible applicants that request funds for dissemination activities must apply under CFDA number 84.282C.
The absolute and competitive preference priorities focus this competition on assisting educationally disadvantaged students and other students—specifically students attending high-poverty schools, students with disabilities, English learners, military-connected students, and students in rural areas—in meeting State academic content standards and State student academic achievement standards.
The competitive preference priorities for students with disabilities and English learners are included for the following two reasons. First, recent reports have indicated that charter schools may be serving students with disabilities at a lower rate than traditional public schools;
The Secretary also recognizes that military-connected students often face distinct obstacles in receiving a high-quality education due to such factors as significant parental absence and frequent relocations.
Lastly, the Department understands that rural schools confront their own unique challenges and seeks to encourage rural education leaders to use charter schools, as appropriate, as part of their overall school improvement efforts.
The absolute priority and competitive preference priorities are intended to encourage applicants to develop innovative projects designed to eliminate achievement gaps between the subgroups described in this notice and the highest-achieving subgroups in their States. The priorities are also intended to encourage applicants to develop innovative projects for students facing unique educational challenges.
The invitational priority builds on these goals by focusing on applicants who are designing charter schools that will attract and serve students from diverse backgrounds. The Department encourages the meaningful inclusion of diversity in charter school models, and looks to learn more about successful practices through this invitational priority.
All charter schools receiving CSP funds, as outlined in section 5210(1)(G) of the Elementary and Secondary Education Act of 1965, as amended (ESEA), must comply with various non-discrimination laws, including the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, part B of the Individuals with Disabilities Education Act (i.e., rights afforded to students with disabilities and their parents), and applicable State laws.
This priority is:
Accelerating learning and helping to improve high school graduation rates (as defined in this notice) and college enrollment rates in high-poverty schools (as defined in this notice).
To meet this priority, an applicant for either a dissemination grant (CFDA 84.282C) or a planning, program design, and
Applications approved for funding must meet the absolute priority throughout the performance period.
In order to be eligible to receive points under these competitive preference priorities, the applicant must identify the priority or priorities that it believes it addresses, provide a detailed explanation of how the project addresses the priority or priorities, and provide documentation supporting its claims.
These priorities are:
Projects that are designed to address one or more of the following priority areas:
(a) Accelerating learning and helping to improve high school graduation rates (as defined in this notice) and college enrollment rates for students in rural local educational agencies (as defined in this notice).
(b) Accelerating learning and helping to improve high school graduation rates (as defined in this notice) and college enrollment rates for students with disabilities.
(c) Accelerating learning and helping to improve high school graduation rates (as defined in this notice) and college enrollment rates for English Learners.
The Department encourages the applicant to provide a thoughtful, in-depth response to the priority area(s) to which it is well-suited to respond. Applicants may choose to respond to one or more of the priority areas and are not required to respond to each priority area in order to receive the maximum available points under this competitive preference priority.
Projects that are designed to address the needs of military-connected students (as defined in this notice).
To receive points under this priority, an applicant's project must target military-connected students who are current or prospective public charter school students. The applicant's recruitment and admissions policies and practices must comply with the State's charter school law and CSP program requirements (for information on admissions and the lottery under the CSP, see “Charter Schools Program Nonregulatory Guidance” at
This priority is:
The Secretary is particularly interested in applications from charter school developers planning schools, or from charter schools, that are designed to attract and serve students from diverse backgrounds, including students from different racial and ethnic groups and educationally disadvantaged students (e.g., economically disadvantaged students, students with disabilities, migrant students, English learners, neglected or delinquent students, and homeless students), as reflected in the charter school's (a) mission statement, (b) vision of the charter school, or (c) charter or performance agreement between the charter school and its authorizers.
For information on permissible ways to address this priority, please refer to the joint guidance issued by the Department of Education and the Department of Justice entitled, “Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools” at
The following definitions applicable to this competition are from the notice of final supplemental priorities and definitions for discretionary grant programs, published in the
The regulations regarding graduation rate at 34 CFR 200.19(b)(1) require that adjusted cohort graduation rates be calculated based on the number of students who graduate with a regular high school diploma. Under 34 CFR 200.19(b)(1)(iv), the term “regular high school diploma” means the standard high school diploma that is awarded to students in the State and that is fully aligned with the State's academic content standards or a higher diploma and does not include a General Educational Development (GED) credential, certificate of attendance, or any alternative award.
The applicant is encouraged to include the cost of attending this meeting in its proposed budgets.
20 U.S.C. 7221–7221i.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply only to institutions of higher education.
Contingent upon the availability of funds and quality of applications, we may make additional awards in FY 2015 from the list of unfunded applications from this competition.
The Consolidated Appropriations Act, 2014 states that “funds available for part B of title V of the ESEA may be used for grants that support preschool education in charter schools.” An application submitted under this competition may propose to use CSP funds to support preschool education in a charter school, provided that the charter school meets the definition of “charter school” in section 5210(1) of the ESEA, including the requirement that the charter school provide a program of elementary or secondary education, or both. Under section 9101(18) of the ESEA, “elementary school” means a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education, as determined under State law. In a number of States, preschool education is part of elementary education under State law. In such States, CSP funds may be used to support preschool education in charter schools (as defined in section 5210(1)) that provide elementary or secondary education beyond preschool, as well as in charter schools that provide only preschool education. In States in which preschool education is not part of elementary education under State law, CSP funds may be used to support preschool education so long as the preschool program is offered as part of a school that meets the definition of “charter school” in section 5210(1)—i.e., the school provides elementary or secondary education, or both. Thus, in States in which preschool education is not part of elementary education under State law, CSP funds may not be used to support charter schools that provide only preschool education. In the coming weeks, the Department plans to release nonregulatory guidance that will provide additional information about how CSP funds may be used to support preschool education in charter schools. Please continue to check the Charter Schools Program Web site for updates.
The Department is not bound by any estimates in this notice.
For planning, program design, and initial implementation grants awarded by the Secretary to non-SEA eligible applicants under CFDA number 84.282B, no more than 18 months may be used for planning and program design and no more than 24 months may be used for the initial implementation of a charter school.
1.
(a)
Section 5210(2) of the ESEA (20 U.S.C. 7221i(2)) defines “developer” as an individual or group of individuals (including a public or private nonprofit organization), which may include teachers, administrators and other school staff, parents, or other members of the local community in which a charter school project will be carried out. Additionally, the charter school must be located in a State with a State statute specifically authorizing the establishment of charter schools and in which the SEA does not have an application approved under the CSP.
(b)
(1) Substantial progress in improving student academic achievement;
(2) High levels of parent satisfaction; and
(3) The management and leadership necessary to overcome initial start-up problems and establish a thriving, financially viable charter school.
Consistent with section 5204(f)(6) of the ESEA (20 U.S.C. 7221c(f)(6)), a charter school may apply for funds to carry out dissemination activities, whether or not the charter school previously applied for or received funds under the CSP for planning, program design, or implementation.
These competitions (CFDA numbers 84.282B and 84.282C) are limited to eligible applicants in States in which the SEA does not have an approved application under the CSP (or will not have an approved application as of October 1, 2014). The following States currently have approved applications under the CSP: Arizona, Arkansas, California, Colorado, District of Columbia, Florida, Georgia, Indiana, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Rhode Island, South Carolina, Tennessee, Texas, and Wisconsin.
Eligible applicants, including charter schools, located in States with currently approved CSP applications that are interested in participating in the CSP should contact the SEA for information related to the State's CSP subgrant competition. Further information is available at
2.
1.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the program contact person listed in this section.
2.a.
Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. The Secretary strongly encourages applicants to limit Part III to the equivalent of no more than 50 pages, using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1” margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, you must include all of the application narrative in Part III.
b.
Given the types of projects that may be proposed in applications for the CSP Non-SEA Grants for Planning, Program Design, and Initial Implementation and for Dissemination, an application may include business information that the applicant considers proprietary. The Department's regulations define “business information” in 34 CFR 5.11.
Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.
Consistent with Executive Order 12600, please designate in your application any information that you feel is exempt from disclosure under Exemption 4 of the Freedom of Information Act. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
3.
Applications Available: May 27, 2014.
Dates of Pre-Application Webinar: The Department will hold a pre-application Webinar for prospective applicants on the following dates (all times are Washington, DC time):
1. May 28, 2014, 10:00 a.m. to 11:30 a.m.; and
2. June 4, 2014, 2:30 p.m. to 4:00 p.m.
Individuals interested in attending one of the Webinars are encouraged to pre-register by emailing their name, organization, contact information, and preferred Webinar date and time with the subject heading NON-SEA PRE-APPLICATION MEETING to
For further information about the pre-application Webinar, contact Brian Martin, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W224, Washington, DC 20202–5970. Telephone: (202) 205–9085 or by email:
Deadline for Transmittal of Applications: July 11, 2014
Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
Deadline for Intergovernmental Review: September 24, 2014.
4.
5.
(a) Post-award planning and design of the educational program, which may include (1) refinement of the desired educational results and of the methods for measuring progress toward achieving those results; and (2) professional development of teachers and other staff who will work in the charter school; and
(b) Initial implementation of the charter school, which may include (1) informing the community about the school; (2) acquiring necessary
CSP funds awarded under CFDA number 84.282B may be used only for the planning and initial implementation of a charter school. As a general matter, the Secretary considers charter schools that have been in operation for more than three years to be past the initial implementation phase and, therefore, ineligible to receive CSP funds to support the initial implementation of a charter school.
(a) Assisting other individuals with the planning and start-up of one or more new public schools, including charter schools, that are independent of the assisting charter school and the assisting charter school's developers, and that agree to be held to at least as high a level of accountability as the assisting charter school;
(b) Developing partnerships with other public schools, including charter schools, designed to improve student academic achievement in each of the schools participating in the partnership;
(c) Developing curriculum materials, assessments, and other materials that promote increased student achievement and are based on successful practices within the assisting charter school; and
(d) Conducting evaluations and developing materials that document the successful practices of the assisting charter school and that are designed to improve student performance in other schools. (20 U.S.C. 7221c(f)(6))
We reference additional regulations outlining funding restrictions in the
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one-to-two business days.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2–5 weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data entered into the SAM database by an entity. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, you will need to allow 24 to 48 hours for the information to be available through Grants.gov and before you can submit an application in Grants.gov.
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
a.
Applications for grants under the CSP, CFDA Numbers 84.282B and 84.282C, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the CSP at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Brian Martin, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W224, Washington, DC 20202–5970.
FAX: (202) 205–5630.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.282B or 84.282C), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202–4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.282B or 84.282C), 550 12th Street, SW., Room 7039, Potomac Center Plaza, Washington, DC 20202–4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
1.
(a) Describe the educational program to be implemented by the proposed charter school, including how the program will enable all students to meet challenging State student academic achievement standards, the grade levels or ages of children to be served, and the curriculum and instructional practices to be used;
An applicant proposing to create or substantially expand a single-sex charter school should include in its application a detailed description of how it is complying with applicable nondiscrimination laws, including the Equal Protection Clause of the U.S. Constitution (as interpreted in United States v. Virginia, 518 U.S. 515 (1996) and other cases) and Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) and its regulations, including 34 CFR 106.34(c). Specifically, the applicant should provide a written justification for a proposed single-sex charter school that explains (1) how the single-sex charter school is based on an important governmental objective(s); and (2) how the single-sex nature of the charter school is substantially related to the stated objective(s). An applicant proposing to operate a single-sex charter school that is part of an LEA and not a single-school LEA under State law, should also provide (1) information about whether there is a substantially equal single-sex school(s) for students of the excluded sex, and, if so, a detailed description of both the proposed single-sex charter school and the substantially equal single-sex school(s) based on the factors in 34 CFR 106.34(c)(3); and (2) information about whether there is a substantially equal coeducational school(s) for students of the excluded sex, and, if so, a detailed description of both the proposed single-sex charter school and the substantially equal coeducational school(s) based on the factors in 34 CFR 106.34(c)(3).
(b) Describe how the charter school will be managed;
(c) Describe the objectives of the charter school and the methods by which the charter school will determine its progress toward achieving those objectives;
The applicant should review the Performance Measures section of this notice for information on the requirements for developing project-specific performance measures and targets consistent with the objectives of the proposed project. The applicant may choose to include a discussion of the project-specific performance measures and targets it develops in response to the Performance Measures requirement as part of its response to this application requirement.
(d) Describe the administrative relationship between the charter school and the authorized public chartering agency;
(e) Describe how parents and other members of the community will be involved in the planning, program design, and implementation of the charter school;
(f) Describe how the authorized public chartering agency will provide for continued operation of the charter school once the Federal grant has expired, if that agency determines that the charter school has met its objectives as described in paragraph (c) of this section;
(g) If the charter school desires the Secretary to consider waivers under the authority of the CSP, include a request and justification for waivers of any Federal statutory or regulatory provisions that the applicant believes are necessary for the successful operation of the charter school, and a description of any State or local rules, generally applicable to public schools, that will be waived for, or otherwise not apply to, the school. Each applicant for a planning, program design, and initial implementation grant under CFDA number 84.282B that is requesting a waiver of the requirement under section 5203(d)(3) of the ESEA (20 U.S.C. 7221b(d)(3)) to provide its authorized public chartering agency with notice, and a copy, of its CSP application should indicate whether it has applied for a charter previously and, if so, the name of the authorized public chartering authority and the disposition of the charter application;
(h) Describe how the grant funds will be used, including a description of how these funds will be used in conjunction with other Federal programs administered by the Secretary;
(i) Describe how students in the community will be informed about the charter school and be given an equal opportunity to attend the charter school;
The applicant should provide a detailed description of its recruitment and admissions policies and practices, including a description of the lottery it plans to employ if more students apply for admission than can be accommodated. The applicant should also describe any current or planned use of a weighted lottery or exemptions of certain categories of students from the lottery and how the use of such weights or exemptions is consistent with State law and the CSP authorizing statute. For information on the CSP lottery requirement, including permissible exemptions from the lottery and the circumstances under which charter schools receiving CSP funds may use weighted lotteries, see Section E of the CSP Nonregulatory Guidance at
An applicant that proposes to use a weighted lottery should provide the following:
(1) Information concerning the circumstances in which a weighted lottery would be used, including the specific categories of students the weighted lottery would favor;
(2) Evidence that (a) the use of a weighted lottery is necessary to comply with Federal or State law; or (b) the State permits the use of a weighted lottery under the circumstances in which a weighted lottery is proposed to be used (e.g., in favor of educationally disadvantaged students). State permission to use a weighted lottery can be evidenced by the fact that weighted lotteries for such students are expressly permitted under the State charter school law, a State regulation, or a written State policy consistent with the State charter school law or regulation, or, in the
(3) Information concerning the mechanisms that exist (if any) for an oversight entity (e.g., the SEA or an authorized public chartering agency) to review, approve, or monitor specific lottery practices, including the establishment of weight amounts if applicable;
(4) Information concerning how the use of a weighted lottery for a permitted purpose is within the scope and objectives of the proposed project; and
(5) Information concerning the amount or range of lottery weights that will be employed or permitted and the rationale for these weights.
(j) Describe how a charter school that is considered an LEA under State law, or an LEA in which a charter school is located, will comply with sections 613(a)(5) and 613(e)(1)(B) of the Individuals with Disabilities Education Act (IDEA)(for additional information on IDEA, please see
(k) If the eligible applicant desires to use grant funds for dissemination activities under section 5202(c)(2)(c) of the ESEA (20 U.S.C 7221a(c)(2)(C)), describe those activities and how those activities will involve charter schools and other public schools, LEAs, charter school developers, and potential charter school developers.
2.
The selection criteria for applicants submitting applications under CFDA number 84.282B are listed in paragraph (a) of this section, and the selection criteria for applicants submitting applications under CFDA number 84.282C are listed in paragraph (b) of this section.
(a)
The following selection criteria are based on sections 5203, 5204, and 5210 of the ESEA (20 U.S.C. 7221b, 7221c, and 7221i) and 34 CFR 75.210. The maximum possible score for addressing all of the criteria in this section is 100 points. The maximum possible score for addressing each criterion is indicated in parentheses following the criterion. In evaluating an application for a planning, program design, and implementation grant, the Secretary considers the following criteria:
(1)
The Secretary encourages the applicant to describe the quality of the educational program to be implemented by the proposed charter school, including: how the program will enable all students to meet challenging State student academic achievement and content standards; the grade levels or ages of students to be served; and the curriculum and instructional practices to be used. If the curriculum and instructional practices have been successfully used in other schools operated or managed by the applicant, the Secretary encourages the applicant to describe the implementation of such practices and the academic results achieved.
(2)
(3)
The Secretary encourages the applicant to propose a comprehensive plan for assessing the achievement of the charter school's objectives, including developing performance measures and performance targets for its proposed grant project that are consistent with those objectives. The applicant should clearly identify the project-specific performance measures and performance targets in its plan and should review the Performance Measures section of this notice for information on the requirements for developing those performance measures and performance targets consistent with the objectives of the proposed project. The applicant may choose to include a discussion of the project-specific performance measures and targets it develops in response to the Performance Measures requirements when addressing this criterion.
(4)
The Secretary considers the extent of community support for, and parental and community involvement in, the charter school. In determining the extent of community support for, and parental and community involvement in, the charter school, the Secretary considers—
(i) The extent of community support for the application (up to 5 points); and
(ii) The extent to which the proposed project encourages parental and community involvement in the planning, program design, and implementation of the charter school (up to 5 points).
In describing the extent to which the proposed project encourages parental and community involvement in the planning, program design, and implementation of the charter school, the Secretary encourages the applicant to describe how parents and other members of the community will be informed about the charter school and how students will be given an equal opportunity to attend the charter school.
(5)
(i) The Secretary considers the quality of the personnel who will carry out the proposed project.
(ii) In determining the quality of project personnel, the Secretary considers—
(A) The extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability (up to 2 points); and
(B) The qualifications, including relevant training and experience, of key project personnel (up to 20 points).
The Secretary encourages the applicant to provide evidence of the key project personnel's skills, experience, and success in the following areas: launching a high-quality charter school; developing an innovative school design; managing or leading a non-profit organization; establishing or maintaining school governance by a board of trustees; developing and implementing an effective curriculum; recruiting and evaluating effective educators; and strengthening fiscal management.
(6)
(i) The Secretary considers the quality of the management plan for the proposed project.
(ii) In determining the quality of the management plan for the proposed project, the Secretary considers the adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
(7)
The existence of a written charter or performance contract between the charter school and its authorized public chartering agency and the extent to which the charter or performance
The applicant is encouraged to submit a copy of its approved charter or performance contract. If the applicant has had an application for a charter denied, the applicant should describe the circumstances surrounding such denial and how it plans to revise the charter application before resubmitting it to the authorized public chartering agency.
(8)
The Secretary encourages the applicant to describe the flexibility afforded under its State's charter school law in terms of establishing an administrative relationship between the charter school and the authorized public chartering agency, and whether charter schools are exempt from significant State or local rules that inhibit the flexible operation and management of public schools.
The Secretary also encourages the applicant to include a description of the degree of autonomy the charter school will have over such matters as the charter school's budget, expenditures, daily operations, curriculum, and personnel in accordance with its State's charter school law.
(b)
The following selection criteria are based on sections 5204 and 5210(1)(L) of the ESEA (20 U.S.C. 7221c and 7221i(1)(L)) and from 34 CFR 75.210. The maximum possible score for addressing all the criteria in this section is 100 points. The maximum possible score for addressing each criterion is indicated in parentheses following the criterion. In evaluating an application for a dissemination grant, the Secretary considers the following criteria:
(1)
(i) The Secretary considers the quality of the design of the proposed project.
(ii) In determining the quality of the design of the proposed project, the Secretary considers the following factors—
(A) The quality of the proposed dissemination activities and the likelihood that those activities will improve student achievement (up to 10 points).
The Secretary encourages the applicant to describe the objectives for the proposed dissemination activities and the methods by which the charter school will determine its progress toward achieving those objectives. The applicant should review the Performance Measures section of this notice for information on the requirements for developing project-specific performance measures and targets consistent with those objectives. The applicant may choose to include a discussion of the project-specific performance measures and targets it develops in response to the Performance Measures requirements when addressing this criterion.
(B) The extent to which the proposed project is supported by strong theory (as defined in 34 CFR 77.1(c)) (up to 10 points).
(2)
The existence of a written charter or performance contract between the charter school and its authorized public chartering agency and how the charter or performance contract requires student performance to be measured in the charter school pursuant to State assessments that are required of other schools and pursuant to any other assessments mutually agreeable to the authorized public chartering agency and the charter school.
(3)
The extent to which the school has demonstrated overall success, including—
(i) Substantial progress in improving student academic achievement (up to 25 points);
(ii) High levels of parent satisfaction (up to 5 points); and
(iii) The management and leadership necessary to overcome initial start-up problems and establish a thriving, financially viable charter school (up to 5 points).
The Secretary encourages the applicant to provide performance data (both school-wide and by subgroup) for the past three years on State assessments as compared to all students in other schools in the State at the same grade level, and as compared to other schools serving similar populations of students (while maintaining the appropriate standards that protect personally identifiable information).
The Secretary also encourages the applicant to provide its most recent State or LEA Report Card.
(4)
(i) The Secretary considers the significance of the proposed project.
(ii) In determining the significance of the proposed project, the Secretary considers the extent to which the results of the proposed project are to be disseminated in ways that will enable others to use the information or strategies.
(5)
(i) The Secretary considers the quality of the personnel who will carry out the proposed project.
(ii) In determining the quality of project personnel, the Secretary considers—
(A) The extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability (up to 3 points); and
(B) The qualifications, including relevant training and experience, of the project director or principal investigator (up to 11 points).
(6)
(i) The Secretary considers the quality of the management plan for the proposed project.
(ii) In determining the quality of the management plan for the proposed project, the Secretary considers the adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
3.
In addition, in making a competitive grant award, the Secretary also requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
4.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
(a) Program Performance Measures. The goal of the CSP is to support the creation and development of a large number of high-quality charter schools that are free from State or local rules that inhibit flexible operation, are held accountable for enabling students to reach challenging State performance standards, and are open to all students. The Secretary has two performance indicators to measure progress toward this goal: (1) The number of charter schools in operation around the Nation, and (2) the percentage of fourth- and eighth-grade charter school students who are achieving at or above the proficient level on State assessments in mathematics and reading/language arts. Additionally, the Secretary has established the following measure to examine the efficiency of the CSP: Federal cost per student in implementing a successful school (defined as a school in operation for three or more consecutive years).
All grantees must submit an annual performance report with information that is responsive to these performance measures.
(b) Project-Specific Performance Measures. Applicants must propose project-specific performance measures and performance targets consistent with the objectives of the proposed project. Applications must provide the following information as required under 34 CFR 75.110(b) and (c):
(1) Performance measures. How each proposed performance measure would accurately measure the performance of the project and how the proposed performance measure would be consistent with the performance measures established for the program funding the competition.
(2) Baseline data. (i) Why each proposed baseline is valid; or (ii) If the applicant has determined that there are no established baseline data for a particular performance measure, an explanation of why there is no established baseline and of how and when, during the project period, the applicant would establish a valid baseline for the performance measure.
(3) Performance targets. Why each proposed performance target is ambitious yet achievable compared to the baseline for the performance measure and when, during the project period, the applicant would meet the performance target(s).
The Secretary encourages the applicant to consider measures and targets tied to its grant activities (for instance, if grant funds will support professional development for teachers and other staff, the applicant should include measures related to the outcomes for the professional development), as well as to student academic achievement during the grant period. The measures should be sufficient to gauge the progress throughout the grant period, show results by the end of the grant period, and be included in the logic model supporting a strong theory under Selection Criterion 7,
For technical assistance in developing effective performance measures, applicants are encouraged to review information provided by the Department's Regional Educational Laboratories (RELs). The RELs seek to build the capacity of States and school districts to incorporate data and research into education decision-making. Each REL provides research support and technical assistance to its region but makes learning opportunities available to educators everywhere. For example, the REL Northeast and Islands has created the following resource on logic models:
(3) Data Collection and Reporting. The applicant must also describe in the application: (i) the data collection and reporting methods the applicant would use and why those methods are likely to yield reliable, valid, and meaningful performance data, and (ii) the applicant's capacity to collect and report reliable, valid, and meaningful performance data, as evidenced by high-quality data collection, analysis, and reporting in other projects or research.
If the applicant does not have experience with the collection and reporting of performance data through other projects or research, the applicant should provide other evidence of its capacity to successfully carry out data collection and reporting for the proposed project.
5.
If you use a TDD or a TTY, call the FRS, toll free, at 1–800–877–8339.
Office of Fossil Energy, DOE.
Notice of application.
The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice of receipt of an application (Application), filed on May 13, 2013, by Venture Global LNG, LLC (Venture Global), requesting long-term, multi-contract authorization to export domestically produced liquefied natural gas (LNG)
In the portion of Venture Global's Application subject to this Notice, Venture Global requests authorization to export LNG to any country with which the United States does not have a free trade agreement (FTA) requiring national treatment for trade in natural gas (non-FTA countries), and with which trade is not prohibited by U.S. law or policy. Venture Global requests this authorization both on its own behalf and as agent for other parties who hold title to the LNG at the time of export. The Application was filed under section 3 of the Natural Gas Act (NGA). Protests, motions to intervene, notices of intervention, and written comments are invited.
Protests, motions to intervene or notices of intervention, as applicable, requests for additional procedures, and written comments are to be filed using procedures detailed in the Public Comment Procedures section no later than 4:30 p.m., Eastern time, June 26, 2014.
In the Application, Venture Global states that it has executed an agreement for the exclusive right to lease approximately 69 acres for the Project site.
Venture Global seeks to export domestically produced LNG in a total volume equivalent to approximately 243.6 Bcf/yr of natural gas, or 0.67 Bcf/d. Venture Global states that it plans to export the LNG from the Project to any non-FTA country which has developed or in the future develops the capacity to import LNG, and with which trade is not prohibited by U.S. law or policy. Venture Global requests this authorization for a 25-year term commencing on the earlier of the date of first export or eight years from the date the requested authorization is granted.
Venture Global seeks to export the requested LNG on its own behalf and as agent for third parties who hold title to the LNG at the time of export. Venture Global states that these third parties may include its “Contract Parties,” which Venture Global states are both (i) reputable, experienced, and credit-worthy international companies focusing on global infrastructure that will provide equity and project finance debt, and (ii) international energy and logistics companies that are experts in various aspects of natural gas and LNG businesses (including liquefaction, marine transportation, LNG terminal, LNG storage and regasification, and power generation businesses).
Venture Global states that it will comply with all DOE/FE requirements for exporters and agents as set forth in recent DOE/FE orders, including registering each LNG title holder for whom Venture Global seeks to export as agent. Venture Global proposes that this registration include a written statement by the title holder acknowledging and agreeing to comply with all applicable requirements set forth in Venture Global's export authorization, and to include those requirements in any subsequent purchase or sale agreement entered into by that title holder.
Venture Global states that either directly, together with, or through one or more of its Contract Parties, Venture Global plans to procure natural gas supplies in the United States for liquefaction and export from the Project to supply its international projects. Venture Global also will arrange for the transportation of the LNG to LNG import facilities via ocean-going carriers.
Venture Global states that it has projects under development in multiple countries. It emphasizes its discussions with the Republic of Haiti (a non-FTA country) for the potential delivery of approximately 200,000 to 350,000 metric tons per annum over the project term to serve power generation and related energy needs in the Republic of Haiti. According to Venture Global, if it receives the requested non-FTA export authorization, it intends to dedicate this portion of the total authorized volume of LNG to deliveries from the Project to the Republic of Haiti (one of the poorest countries in the world)—a proposal that Venture Globe states is a unique and significant benefit in the public interest.
Venture Global states that it seeks authorization to export LNG produced from the United States natural gas supply and transmission network. Venture Global states that natural gas will be procured from the interstate and intrastate natural gas grid at points of liquidity upstream from the Project. Venture Global states that the Project site is located in close proximity to various interstate and intrastate pipeline systems, including those of Tennessee Gas Pipeline Company, ANR Pipeline Company, Bridgeline Holdings, L.P., Columbia Gulf Transmission Company, and Natural Gas Pipeline Company of America. Venture Global anticipates that the Project will be connected to one or more of these (or other) interstate or Louisiana intrastate pipeline systems through newly constructed, relatively short lateral pipeline(s). Venture Global further states that access to the pipeline grid will enable it to purchase natural gas from multiple sources of conventional and non-conventional U.S. production. Venture Global states that such supplies could be produced across the Gulf Coast region, both onshore and offshore, including traditional production regions and supplies produced from onshore shale formations, including the Barnett, Haynesville, and Bossier shale gas formations. Venture Global states that this supply may be sourced in requisite volumes in the spot market or pursued under long-term arrangements. Venture Global commits to filing all executed long-term purchase agreements with DOE/FE under seal, as set forth in recent DOE/FE orders.
Venture Global states that the proposed export of LNG to non-FTA countries is consistent with the public interest under section 3(a) of the NGA, 15 U.S.C. 717b(a). In support of this position, Venture Global discusses: (i) The domestic need for the LNG proposed to be exported; (ii) domestic
Focusing on domestic need for the LNG, Venture Global states that domestic natural gas resources are abundant, environmentally friendly, and affordable. It asserts that domestic resources are sufficient to meet both the domestic consumption demand and any expected level of LNG exports—including those proposed by Venture Global—in the long-term. According to Venture Global, recent technological developments in the natural gas industry have led to significant increases in domestically-produced natural gas, particularly with regard to non-conventional production from onshore shale formations. Citing data from the U.S. Energy Information Administration (EIA), Venture Global states that total dry natural gas production in the United States was approximately 24.04 trillion cubic feet (Tcf) in 2011—the highest level in U.S. history to that point and an increase of approximately 27% compared to production of approximately 18.05 Tcf in 2005.
Focusing on projections from EIA's Annual Energy Outlook 2013 Early Release (AEO 2013 Early Release),
Venture Global asserts that the increase in U.S. gas reserves in recent years has been as dramatic as the growth in production. According to Venture Global, EIA estimated proved dry natural gas reserves of approximately 304.6 Tcf as of year-end 2010—the largest level in U.S. history and an increase of roughly one-third compared to EIA's estimate of proved reserves of 204.4 Tcf as of 2005.
Venture Global next states that the Potential Gas Committee, in its biennial report on potential U.S. supplies, concluded that the United States possesses a technically recoverable natural gas resource potential of 2,384 Tcf, the highest resource evaluation in the Potential Gas Committee's 48-year history.
Venture Global contends that, for purposes of comparison with current reserves, total U.S. gas consumption in 2011 was approximately 25.5 Tcf, meaning that the total available supply exceeds 105 years of the 2011 consumption levels. Venture Global asserts that, even if EIA's forecast for total consumption in 2040 (29.83 Tcf) is used for comparison, the current supply is equivalent to more than 90 years of consumption.
Venture Global further states that numerous reports have projected sufficient volumes of domestic natural gas to meet both domestic demand and LNG exports.
Venture Global maintains that it seeks to export relatively small volumes of LNG, as compared to other long-term LNG export applications granted by or pending before DOE/FE. Further, Venture Global states that its proposed volume of LNG—equivalent to approximately 243.6 Bcf/yr of natural gas—is
Venture Global also contends that its proposed export volumes to non-FTA countries are sufficiently small that they will have a minimal effect, if any, on domestic energy supply. Further, according to Venture Global, the NERA study and other studies have demonstrated that the proposed export of LNG will not have a substantial impact on the domestic price of natural gas. Additional details can be found in Venture Global's Application, which is posted on the DOE/FE Web site at:
According to Venture Global, a grant of the Application would not constitute a federal action significantly affecting the human environment within the meaning of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321
The Application will be reviewed pursuant to section 3(a) of the NGA, 15 U.S.C. 717b(a), and DOE will consider any issues required by law or policy. To the extent determined to be relevant, these issues will include the domestic need for the natural gas proposed to be exported, the adequacy of domestic natural gas supply, U.S. energy security, and the cumulative impact of the requested authorization and any other
NEPA requires DOE to give appropriate consideration to the environmental effects of its decisions. No final decision will be issued in this proceeding until DOE has met its environmental responsibilities.
Due to the complexity of the issues raised by the Applicant, interested persons will be provided 60 days from the date of publication of this Notice in which to submit comments, protests, motions to intervene, notices of intervention, or motions for additional procedures.
In response to this Notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention, as applicable. The filing of comments or a protest with respect to the Application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the Application. All protests, comments, motions to intervene, or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.
Filings may be submitted using one of the following methods: (1) Emailing the filing to
If submitting a filing via email, please include all related documents and attachments (e.g., exhibits) in the original email correspondence. Please do not include any active hyperlinks or password protection in any of the documents or attachments related to the filing. All electronic filings submitted to DOE must follow these guidelines to ensure that all documents are filed in a timely manner. Any hardcopy filing submitted greater in length than 50 pages must also include, at the time of the filing, a digital copy on disk of the entire submission.
A decisional record on the Application will be developed through responses to this notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. A party seeking intervention may request that additional procedures be provided, such as additional written comments, an oral presentation, a conference, or trial-type hearing. Any request to file additional written comments should explain why they are necessary. Any request for an oral presentation should identify the substantial question of fact, law, or policy at issue, show that it is material and relevant to a decision in the proceeding, and demonstrate why an oral presentation is needed. Any request for a conference should demonstrate why the conference would materially advance the proceeding. Any request for a trial-type hearing must show that there are factual issues genuinely in dispute that are relevant and material to a decision and that a trial-type hearing is necessary for a full and true disclosure of the facts.
If an additional procedure is scheduled, notice will be provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the Application and responses filed by parties pursuant to this notice, in accordance with 10 CFR 590.316.
The Application is available for inspection and copying in the Division of Natural Gas Regulatory Activities docket room, Room 3E–042, 1000 Independence Avenue SW., Washington, DC 20585. The docket room is open between the hours of 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The Application and any filed protests, motions to intervene or notice of interventions, and comments will also be available electronically by going to the following DOE/FE Web address:
Bonneville Power Administration (BPA), Department of Energy (DOE).
Notice of intent to prepare an Environmental Impact Statement (EIS) and notice of floodplain and wetlands assessment.
In accordance with the National Environmental Policy Act (NEPA), BPA intends to prepare an EIS on its decision whether to fund the Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho (Tribes) proposal to construct and operate a hatchery for spring/summer Chinook salmon in the Salmon River subbasin and Yellowstone cutthroat trout in the Upper Snake River subbasin on Fort Hall Reservation.
The Tribes' proposed project that BPA is considering funding would involve construction of a hatchery and construction of two fish trapping (weir) facilities on US Forest Service (USFS) land. The hatchery would be constructed at the site of an obsolete trout hatchery owned by BPA on Crystal Springs in Bingham County, Idaho. The weirs would involve construction of a weir in the Yankee Fork of the Salmon River at the USFS Pole Flat Campground in Custer County, relocation of a section of Yankee Fork Road and associated facilities (RV pads), and construction of a weir on USFS land in Panther Creek in Lemhi County, Idaho. The USFS will be a cooperating agency on this EIS to inform their decision on whether to grant a special use permit for construction and operation of the two weirs and associated facilities and relocation of the road on forest service lands.
Operations of the hatchery would include collection of adult spring/summer Chinook for broodstock from existing hatcheries, incubation and rearing of juvenile Chinook, and release of smolts into the Yankee Fork and
The hatchery would also produce up to 5,000 resident Yellowstone cutthroat trout for release in an isolated oxbow lake within the Fort Hall Reservation permit fishing area in the upper Snake River subbasin. Biologists would monitor Chinook salmon in Yankee Fork and Panther Creek and Yellowstone cutthroat trout in the oxbow lake to inform decisions on hatchery operations.
With this Notice of Intent, BPA is initiating the public scoping process for the EIS. BPA and the USFS are requesting comments about potential environmental impacts that should be considered as an EIS is prepared.
In accordance with DOE regulations for compliance with floodplain and wetlands environmental review requirements, BPA will prepare a floodplain and wetlands assessment to avoid or minimize potential harm to or within any affected floodplains and wetlands. The assessment will be included in the EIS.
Written comments are due to the ad dress below no later than July 7, 2014. Comments may also be made at one of the three EIS scoping meetings to be held on June 10, 2014, June 11, 2014, and June 12, 2014 at the addresses below.
Comments on the proposed scope of the Draft EIS for funding this Tribal project and requests to be placed on the project mailing list may be mailed by letter to Bonneville Power Administration, Public Affairs Office—DKE–7, P.O. Box 14428, Portland, OR 97292–4428, or by fax to 503–230–4019. You also may call BPA's toll-free comment line at 1–800–622–4519 and leave a message (please include the name of this project), or submit comments online at
On June 10, 2014, a scoping meeting will be held from 6:00 p.m. to 8:00 p.m. at the Shoshone-Bannock Hotel & Events Center, I–15 Exit 80, Simplot Rd, Fort Hall, Idaho 83203. Additional scoping meetings will be held on June 11, 2014 from 6:00 p.m. to 8:00 p.m. at the USFS Office, 1206 S. Challis Street Salmon, ID; and on June 12, 2014 from 6:00 p.m. to 8:00 p.m. at the USFS Office, 311 N. US HWY 93, Challis, ID. At these informal open-house meetings, we will have project information, maps, and members of the project team available to answer questions and accept verbal and written comments.
The project implements land management plans and is not authorized under the Healthy Forest Restoration Act and is subject to 36 Code of
For more information on how the objection process works for projects and activities implementing land and resource management plans and the requirements, contact Mary Hammer at 208–756–5109, email marylhammer@fs.fed.us, or you may read the regulations under 36 CFR part 218, subparts A and B on the National Forest Service Web site at
The environmental analysis will be mailed out to those who respond to this notice of intent, the scoping letter, to those who have requested the document, or are eligible to file an objection in accordance with 36 CFR 218.5(a).
Don Rose, Environmental Coordinator, Bonneville Power Administration—KEC–4, P.O. Box 3621, Portland, Oregon 97208–3621; toll-free telephone 1–800–282–3713; direct telephone 503–230–3796; or email
BPA's funding of the Tribes' project would support efforts to protect, mitigate, and enhance fish and wildlife affected by the development and operation of the Federal Columbia River Power System in the mainstem Columbia River and its tributaries pursuant to the Pacific Northwest Electric Power Planning and Conservation Act of 1980 (Act) (16 U.S.C. 839b(h)(10)). The Act requires BPA to fund fish and wildlife protection, mitigation, and enhancement actions consistent with the Northwest Power and Conservation Council's (Council) Fish and Wildlife Program and the purposes of the Act. Under this program, the Council makes recommendations to BPA concerning which fish and wildlife projects to fund. The Tribes' proposed project is one of those projects recommended to BPA by the Council. BPA obligated to fund the Tribes' proposed project in the 2008 Shoshone-Bannock Tribes Fish Accord Memorandum of Agreement, and made funding contingent on satisfactory completion of applicable environmental compliance, such as NEPA. The Tribes's proposal is also consistent with BPA's Fish and Wildlife Implementation Plan policy which calls for protecting weak stocks, like the Salmon River spring/summer Chinook, while sustaining overall populations of fish for their economic and cultural value, including long-term harvest opportunities.
The Tribes proposed prject includes the Crystal Springs Hatchery, the Yankee Fork weir, and the Panther Creek weir. Construction of the hatchery would include a hatchery building (for administrative offices, incubation and rearing, and water treatment), outdoor rearing facilities, a shop building (for vehicle, equipment, and feed storage), an effluent control area, two new wells (to improve water temperatures and water quality from existing water sources), and staff housing.
Construction of the Yankee Fork weir would include construction of a bridge-supported bar-rack weir system, a fish ladder, broodstock and juvenile acclimation facilities, a spawning and egg take area, a staff working area, and realignment of a section of Yankee Fork Road.
Construction of the Panther Creek weir, would include construction of a bridge supported bar-rack weir system, a fish ladder, and broodstock and juvenile acclimation facilities.
The proposed hatchery would produce up to 1,000,000 yearling spring/summer Chinook smolts. Project operations would include collection of adult spring/summer Chinook for broodstock from the Sawtooth and Pahsimeroi hatcheries located in Custer and Lemhi counties, Idaho; incubation and rearing of juvenile spring/summer Chinook; and release of 400,000 smolts into Panther Creek and 600,000 smolts into Yankee Fork of the Salmon River in Idaho.
Once returning populations reach approximately 500–1,000 fish annually at each weir location, hatchery broodstock collection would cease and instead, harvest of approximately 800 adult Chinook would be allowed annually at the Panther Creek weir for broodstock and 1,000 adult spring/summer Chinook collected annually at the Yankee Fork weir for broodstock with excess adults allowed to pass the trap and return to key upriver habitat to spawn naturally. The Tribes' project would also contribute to the conservation and recovery of the Snake River spring/summer Chinook ESU by restoring a population of 500 locally adapted Chinook spawners in the Yankee Fork and 500 spawners in Panther Creek (a total of 1,000 fish). The tribe would implement a monitoring and evaluation program to determine if harvest and conservation and recovery objectives are being achieved, ensure that hatchery culture practices meet identified standards, quantify hatchery fish migration performance, document hatchery‐origin adult stray rates to other out‐of‐basin streams, and track natural fish population abundance, productivity, life history diversity and spatial structure.
BPA will be the lead agency for preparation of the EIS. The USFS will be a cooperating agency and will assist BPA in evaluating alternatives and identifying issues that should be addressed in the EIS. The USFS could use the EIS to support a decision of whether to grant Special Use Permits to the Tribes and to identify what terms and conditions would be necessary if the Special Use Permits were granted. Additional cooperating agencies for the EIS may be identified as the proposed project proceeds through the NEPA process.
In accordance with DOE regulations, a 45-day scoping period has been established by BPA, and supported by the USFS, during which the public is invited to comment on the scope of the proposed EIS. Scoping will help BPA and the USFS ensure they identify significant issues and develop alternatives in the EIS, and identify significant or potentially significant impacts that may result from the proposed project and alternatives.
When completed, the Draft EIS will be circulated for review and comment, and BPA and the USFS will hold at least one public comment meeting for the Draft EIS. BPA, in coordination with the USFS and the Tribes, will consider and respond in the Final EIS to comments received on the Draft EIS. BPA and the USFS will each issue their own decision documents.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following PURPA 210(m)(3) filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), (See item specific ICR title, EPA ICR Number, and OMB Control Number provided in the text) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before July 28, 2014.
Submit your comments, referencing the Docket ID numbers provided for each item in the text, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Patrick Yellin, Compliance Assessment and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564–2970; fax number: (202) 564–0050; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, EPA will issue another
(1) Docket ID Number: EPA–HQ–OECA–2014–0043; Title: NSPS for Polymeric Coating of Supporting Substrates Facilities (40 CFR Part 60, Subpart VVV); ICR Numbers: EPA ICR Number 1284.10, OMB Control Number 2060–0181; ICR Status: This ICR is scheduled to expire on October 31, 2014.
(2) Docket ID Number: EPA–HQ–OECA–2014–0054; Title: NESHAP for Pulp and Paper Production (40 CFR Part 63, Subpart S); ICR Numbers: EPA ICR Number 1657.08, OMB Control Number 2060–0387; ICR Status: This ICR is scheduled to expire on December 31, 2014.
(3) Docket ID Number: EPA–HQ–OECA–2014–0027; Title: NSPS for Bulk Gasoline Terminals (40 CFR Part 60, Subpart XX); ICR Numbers: EPA ICR Number 0664.11, OMB Control Number 2060–0006; ICR Status: This ICR is scheduled to expire on January 31, 2015.
(4) Docket ID Number: EPA–HQ–OECA–2014–0030; Title: NSPS for Metallic Mineral Processing Plants (40 CFR Part 60, Subpart LL); ICR Numbers: EPA ICR Number 0982.11, OMB Control Number 2060–0016; ICR Status: This ICR is scheduled to expire on January 31, 2015.
(5) Docket ID Number: EPA–HQ–OECA–2014–0035; Title: NSPS for Sulfuric Acid Plants (40 CFR Part 60, Subpart H); ICR Numbers: EPA ICR Number 1057.13, OMB Control Number 2060–0041; ICR Status: This ICR is scheduled to expire on January 31, 2015.
(6) Docket ID Number: EPA–HQ–OECA–2014–0045; Title: NSPS for Municipal Waste Combustors (40 CFR Part 60, Subpart Ea and Eb); ICR Numbers: EPA ICR Number 1506.13, OMB Control Number 2060–0210; ICR Status: This ICR is scheduled to expire on January 31, 2015.
(7) Docket ID Number: EPA–HQ–OECA–2014–0057; Title: NESHAP for Wood Furniture Manufacturing Operations (40 CFR Part 63, Subpart JJ); ICR Numbers: EPA ICR Number 1716.09, OMB Control Number 2060–0324; ICR Status: This ICR is scheduled to expire on January 31, 2015.
(8) Docket ID Number: EPA–HQ–OECA–2014–0061; Title: NESHAP for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills (40 CFR Part 63, Subpart MM); ICR Numbers: EPA ICR Number 1805.07, OMB Control Number 2060–0377; ICR Status: This ICR is scheduled to expire on January 31, 2015.
(9) Docket ID Number: EPA–HQ–OECA–2014–0062; Title: NESHAP for Pesticide Active Ingredient Production (40 CFR Part 63, Subpart MMM); ICR Numbers: EPA ICR Number 1807.07, OMB Control Number 2060–0370; ICR Status: This ICR is scheduled to expire on January 31, 2015.
(10) Docket ID Number: EPA–HQ–OECA–2014–0067; Title: NESHAP for Primary Copper Smelters (40 CFR Part 63, Subpart QQQ); ICR Numbers: EPA ICR Number 1850.07, OMB Control Number 2060–0476; ICR Status: This ICR is scheduled to expire on January 31, 2015.
(11) Docket ID Number: EPA–HQ–OECA–2014–0080; Title: NESHAP for Cellulose Products Manufacturing (40 CFR Part 63, Subpart UUUU); ICR Numbers: EPA ICR Number 1974.07, OMB Control Number 2060–0488; ICR Status: This ICR is scheduled to expire on January 31, 2015.
(12) Docket ID Number: EPA–HQ–OECA–2014–0083; Title: NESHAP for Leather Finishing Operations (40 CFR Part 63, Subpart TTTT); ICR Numbers: EPA ICR Number 1985.06, OMB Control Number 2060–0478; ICR Status: This ICR is scheduled to expire on January 31, 2015.
(13) Docket ID Number: EPA–HQ–OECA–2014–0085; Title: NESHAP—Reporting and Recordkeeping Requirements for the Friction Materials Manufacturing (40 CFR Part 63, Subpart QQQQQ); ICR Numbers: EPA ICR Number 2025.06, OMB Control Number 2060–0481; ICR Status: This ICR is scheduled to expire on January 31, 2015.
(14) Docket ID Number: EPA–HQ–OECA–2014–0091; Title: NESHAP for Engine Test Cells/Stands (40 CFR Part 63, Subpart PPPPP); ICR Numbers: EPA ICR Number 2066.06, OMB Control Number 2060–0483; ICR Status: This ICR is scheduled to expire on January 31, 2015.
(15) Docket ID Number: EPA–HQ–OECA–2014–0026; Title: NSPS for Metal Coil Surface Coating (40 CFR Part 60, Subpart TT); ICR Numbers: EPA ICR Number 0660.12, OMB Control Number 2060–0107; ICR Status: This ICR is scheduled to expire on February 28, 2015.
(16) Docket ID Number: EPA–HQ–OECA–2014–0028; Title: NSPS for Calciners and Dryers in the Mineral Industries (40 CFR Part 60, Subpart UUU); ICR Numbers: EPA ICR Number 0746.09, OMB Control Number 2060–0251; ICR Status: This ICR is scheduled to expire on February 28, 2015.
(17) Docket ID Number: EPA–HQ–OECA–2014–0033; Title: NSPS for Petroleum Refineries (40 CFR Part 60, Subpart J); ICR Numbers: EPA ICR Number 1054.12, OMB Control Number 2060–0022; ICR Status: This ICR is scheduled to expire on February 28, 2015.
(18) Docket ID Number: EPA–HQ–OECA–2014–0037; Title: NSPS for Primary and Secondary Emissions from Basic Oxygen Furnaces (40 CFR Part 60, Subpart N and Na); ICR Numbers: EPA ICR Number 1069.11, OMB Control Number 2060–0029; ICR Status: This ICR is scheduled to expire on February 28, 2015.
(19) Docket ID Number: EPA–HQ–OECA–2014–0041; Title: NSPS for Glass Manufacturing Plants (40 CFR Part 60, Subpart CC); ICR Numbers: EPA ICR Number 1131.11, OMB Control Number 2060–0054; ICR Status: This ICR is scheduled to expire on February 28, 2015.
(20) Docket ID Number: EPA–HQ–OECA–2014–0047; Title: NSPS for Municipal Solid Waste Landfills (40 CFR Part 60, Subpart WWW); ICR Numbers: EPA ICR Number 1557.09, OMB Control Number 2060–0220; ICR Status: This ICR is scheduled to expire on February 28, 2015.
(21) Docket ID Number: EPA–HQ–OECA–2014–0056; Title: NESHAP for Shipbuilding and Ship Repair Facilities—Surface Coating (40 CFR Part 63, Subpart II); ICR Numbers: EPA ICR Number 1712.09, OMB Control Number 2060–0330; ICR Status: This ICR is scheduled to expire on February 28, 2015.
(22) Docket ID Number: EPA–HQ–OECA–2014–0068; Title: NESHAP for Primary Lead Smelters (40 CFR Part 63, Subpart TTT); ICR Numbers: EPA ICR Number 1856.10, OMB Control Number 2060–0414; ICR Status: This ICR is scheduled to expire on February 28, 2015.
(23) Docket ID Number: EPA–HQ–OECA–2014–0095; Title: NESHAP for Source Categories: Gasoline Distribution Bulk Terminals, Bulk Plants, Pipeline Facilities and Gasoline Dispensing Facilities (40 CFR Part 63, Subpart BBBBBB and CCCCCC); ICR Numbers: EPA ICR Number 2237.04, OMB Control Number 2060–0620; ICR Status: This ICR is scheduled to expire on February 28, 2015.
(24) Docket ID Number: EPA–HQ–OECA–2014–0096; Title: NESHAP for Iron and Steel Foundry Area Sources (40 CFR Part 63, Subpart ZZZZZ); ICR Numbers: EPA ICR Number 2267.04, OMB Control Number 2060–0605; ICR Status: This ICR is scheduled to expire on February 28, 2015.
(25) Docket ID Number: EPA–HQ–OECA–2014–0055; Title: NESHAP for the Secondary Lead Smelter Industry (40 CFR Part 63, Subpart X); ICR Numbers: EPA ICR Number 1686.11, OMB Control Number 2060–0296; ICR Status: This ICR is scheduled to expire on March 31, 2015.
(26) Docket ID Number: EPA–HQ–OECA–2014–0034; Title: NSPS for Kraft Pulp Mills (40 CFR Part 60, Subpart BB); ICR Numbers: EPA ICR Number 1055.11, OMB Control Number 2060–0021; ICR Status: This ICR is scheduled to expire on April 30, 2015.
(27) Docket ID Number: EPA–HQ–OECA–2014–0059; Title: NESHAP for Natural Gas Transmission and Storage (40 CFR Part 63, Subpart HHH); ICR Numbers: EPA ICR Number 1789.09, OMB Control Number 2060–0418; ICR Status: This ICR is scheduled to expire on April 30, 2015.
(28) Docket ID Number: EPA–HQ–OECA–2014–0066; Title: NESHAP for Ferroalloys Production: Ferromanganese and Siliconmaganese (40 CFR Part 63, Subpart XXX); ICR Numbers: EPA ICR Number 1831.06, OMB Control Number 2060–0391; ICR Status: This ICR is scheduled to expire on April 30, 2015.
(29) Docket ID Number: EPA–HQ–OECA–2014–0078; Title: NESHAP for Metal Coil Surface Coating Plants (40 CFR Part 63, Subpart SSSS); ICR Numbers: EPA ICR Number 1957.07, OMB Control Number 2060–0487; ICR Status: This ICR is scheduled to expire on April 30, 2015.
(30) Docket ID Number: EPA–HQ–OECA–2014–0082; Title: NESHAP for Source Categories: Generic Maximum Achievable Control Technology Standards for Carbon Black, Ethylene, Cyanide and Spandex (40 CFR Part 63, Subpart YY); ICR Numbers: EPA ICR Number 1983.07, OMB Control Number 2060–0489; ICR Status: This ICR is scheduled to expire on April 30, 2015.
(31) Docket ID Number: EPA–HQ–OECA–2014–0093; Title: NESHAP for Coal- and Oil-Fired Electric Utility Steam Generating Units (40 CFR Part 63, Subpart UUUUU); ICR Numbers: EPA ICR Number 2137.07, OMB Control Number 2060–0567; ICR Status: This ICR is scheduled to expire on April 30, 2015.
(32) Docket ID Number: EPA–HQ–OECA–2014–0097; Title: NESHAP for Plating and Polishing Area Sources (40 CFR Part 63, Subpart WWWWWW); ICR Numbers: EPA ICR Number 2294.04, OMB Control Number 2060–0623; ICR
(33) Docket ID Number: EPA–HQ–OECA–2014–0099; Title: NESHAP for Ferroalloys Production Area Sources (40 CFR Part 63, Subpart YYYYYY); ICR Numbers: EPA ICR Number 2303.04, OMB Control Number 2060–0625; ICR Status: This ICR is scheduled to expire on April 30, 2015.
(34) Docket ID Number: EPA–HQ–OECA–2014–0038; Title: NESHAP for Inorganic Arsenic Emissions from Glass Manufacturing Plants (40 CFR Part 61, Subpart N); ICR Numbers: EPA ICR Number 1081.11, OMB Control Number 2060–0043; ICR Status: This ICR is scheduled to expire on May 31, 2015.
(35) Docket ID Number: EPA–HQ–OECA–2014–0040; Title: NSPS for Hot Mix Asphalt Facilities (40 CFR Part 60, Subpart I); ICR Numbers: EPA ICR Number 1127.11, OMB Control Number 2060–0083; ICR Status: This ICR is scheduled to expire on May 31, 2015.
(36) Docket ID Number: EPA–HQ–OECA–2014–0042; Title: NSPS for Lime Manufacturing (40 CFR Part 60, Subpart HH); ICR Numbers: EPA ICR Number 1167.11, OMB Control Number 2060–0063; ICR Status: This ICR is scheduled to expire on May 31, 2015.
(37) Docket ID Number: EPA–HQ–OECA–2014–0063; Title: NESHAP for Polyether Polyols Production (40 CFR Part 63, Subpart PPP); ICR Numbers: EPA ICR Number 1811.10, OMB Control Number 2060–0415; ICR Status: This ICR is scheduled to expire on May 31, 2015.
(38) Docket ID Number: EPA–HQ–OECA–2014–0079; Title: NESHAP for Wet-Formed Fiberglass Mat Production (40 CFR Part 63, Subpart HHHH); ICR Numbers: EPA ICR Number 1964.06, OMB Control Number 2060–0496; ICR Status: This ICR is scheduled to expire on May 31, 2015.
(39) Docket ID Number: EPA–HQ–OECA–2014–0044; Title: NESHAP for Coke Oven Batteries (40 CFR Part 63, Subpart L); ICR Numbers: EPA ICR Number 1362.10, OMB Control Number 2060–0253; ICR Status: This ICR is scheduled to expire on June 30, 2015.
(40) Docket ID Number: EPA–HQ–OECA–2014–0064; Title: NESHAP for Steel Pickling, HCL Process Facilities and Hydrochloric Acid Regeneration Plants (40 CFR Part 63, Subpart CCC); ICR Numbers: EPA ICR Number 1821.08, OMB Control Number 2060–0419; ICR Status: This ICR is scheduled to expire on June 30, 2015.
(41) Docket ID Number: EPA–HQ–OECA–2014–0094; Title: NSPS for Other Solid Waste Incineration Units (40 CFR Part 60, Subpart EEEE); ICR
(42) Docket ID Number: EPA–HQ–OECA–2014–0098; Title: NESHAP for Nine Metal Fabrication and Finishing Sources (40 CFR Part 63, Subpart XXXXXX); ICR Numbers: EPA ICR Number 2298.05, OMB Control Number 2060–0622; ICR Status: This ICR is scheduled to expire on June 30, 2015.
(43) Docket ID Number: EPA–HQ–OECA–2014–0104; Title: NESHAP for Polyvinyl Chloride and Copolymer Productions Area Sources (40 CFR Part 63, Subpart DDDDDD); ICR Numbers: EPA ICR Number 2454.02, OMB Control Number 2060–0684; ICR Status: This ICR is scheduled to expire on June 30, 2015.
(44) Docket ID Number: EPA–HQ–OECA–2014–0025; Title: NESHAP for Asbestos (40 CFR Part 61, Subpart M); ICR Numbers: EPA ICR Number 0111.14, OMB Control Number 2060–0101; ICR Status: This ICR is scheduled to expire on July 31, 2015.
(45) Docket ID Number: EPA–HQ–OECA–2014–0039; Title: NSPS for
(46) Docket ID Number: EPA–HQ–OECA–2014–0069; Title: NESHAP for Source Categories: Generic Maximum Achievable Control Technology Standards for Acetal Resins; Acrylic and Modacrylic Fiber; Hydrogen Fluoride and Polycarbonate Production (40 CFR Part 63, Subpart YY); ICR Numbers: EPA ICR Number 1871.08, OMB Control Number 2060–0420; ICR Status: This ICR is scheduled to expire on July 31, 2015.
(47) Docket ID Number: EPA–HQ–OECA–2014–0090; Title: NESHAP for Miscellaneous Metal Parts and Products (40 CFR Part 63, Subpart MMMM); ICR Numbers: EPA ICR Number 2056.05, OMB Control Number 2060–0486; ICR Status: This ICR is scheduled to expire on July 31, 2015.
(48) Docket ID Number: EPA–HQ–OECA–2014–0101; Title: NESHAP for Polyvinyl Chloride and Copolymer Production (40 CFR Part 63, Subpart HHHHHHH); ICR Numbers: EPA ICR Number 2432.03, OMB Control Number 2060–0666; ICR Status: This ICR is scheduled to expire on July 31, 2015.
(49) Docket ID Number: EPA–HQ–OECA–2014–0103; Title: NSPS for
(50) Docket ID Number: EPA–HQ–OECA–2014–0031; Title: NSPS for Petroleum Dry Cleaners (40 CFR Part 60, Subpart JJJ); ICR Numbers: EPA ICR Number 0997.11, OMB Control Number 2060–0079; ICR Status: This ICR is scheduled to expire on September 30, 2015.
(51) Docket ID Number: EPA–HQ–OECA–2014–0046; Title: NESHAP for Benzene Waste Operations (40 CFR Part 61, Subpart FF); ICR Numbers: EPA ICR Number 1541.11, OMB Control Number 2060–0183; ICR Status: This ICR is scheduled to expire on September 30, 2015.
(52) Docket ID Number: EPA–HQ–OECA–2014–0071; Title: NESHAP for Publicly Owned Treatment Works (40 CFR Part 63, Subpart VVV); ICR Numbers: EPA ICR Number 1891.07, OMB Control Number 2060–0428; ICR Status: This ICR is scheduled to expire on September 30, 2015.
(53) Docket ID Number: EPA–HQ–OECA–2014–0075; Title: NESHAP for Municipal Solid Waste Landfills (40 CFR Part 63, Subpart AAAA); ICR Numbers: EPA ICR Number 1938.06, OMB Control Number 2060–0505; ICR Status: This ICR is scheduled to expire on September 30, 2015.
(54) Docket ID Number: EPA–HQ–OECA–2014–0077; Title: NESHAP for Paper and Other Web Coating (40 CFR Part 63, Subpart JJJJ); ICR Numbers: EPA ICR Number 1951.06, OMB Control Number 2060–0511; ICR Status: This ICR is scheduled to expire on September 30, 2015.
(55) Docket ID Number: EPA–HQ–OECA–2014–0076; Title: NESHAP for the Surface Coating of Large Household and Commercial Appliances (40 CFR Part 63, Subpart NNNN); ICR Numbers: EPA ICR Number 1954.06, OMB Control Number 2060–0457; ICR Status: This ICR is scheduled to expire on September 30, 2015.
(56) Docket ID Number: EPA–HQ–OECA–2014–0081; Title: NESHAP for Reinforced Plastics Composites Production (40 CFR Part 63, Subpart WWWW); ICR Numbers: EPA ICR Number 1976.06, OMB Control Number 2060–0509; ICR Status: This ICR is scheduled to expire on September 30, 2015.
(57) Docket ID Number: EPA–HQ–OECA–2014–0084; Title: NESHAP for Coke Oven Pushing Quenching and Battery Stacks (40 CFR Part 63, Subpart CCCCC); ICR Numbers: EPA ICR Number 1995.06, OMB Control Number 2060–0521; ICR Status: This ICR is scheduled to expire on September 30, 2015.
(58) Docket ID Number: EPA–HQ–OECA–2014–0086; Title: NESHAP for Flexible Polyurethane Foam Fabrication (40 CFR Part 63, Subpart MMMMM); ICR Numbers: EPA ICR Number 2027.06, OMB Control Number 2060–0516; ICR Status: This ICR is scheduled to expire on September 30, 2015.
(59) Docket ID Number: EPA–HQ–OECA–2014–0087; Title: NESHAP for Asphalt Processing and Asphalt Roofing Manufacturing (40 CFR Part 63, Subpart LLLLL); ICR Numbers: EPA ICR Number 2029.06, OMB Control Number 2060–0520; ICR Status: This ICR is scheduled to expire on September 30, 2015.
(60) Docket ID Number: EPA–HQ–OECA–2014–0088; Title: NESHAP for Refractory Products Manufacturing (40 CFR Part 63, Subpart SSSSS); ICR Numbers: EPA ICR Number 2040.06, OMB Control Number 2060–0515; ICR Status: This ICR is scheduled to expire on September 30, 2015.
(61) Docket ID Number: EPA–HQ–OECA–2014–0089; Title: NESHAP for Semiconductor Manufacturing (40 CFR Part 63, Subpart BBBBB); ICR Numbers: EPA ICR Number 2042.06, OMB Control Number 2060–0519; ICR Status: This ICR is scheduled to expire on September 30, 2015.
(62) Docket ID Number: EPA–HQ–OECA–2014–0092; Title: NESHAP for Printing, Coating and Dyeing of Fabrics and Other Textiles (40 CFR Part 63, Subpart OOOO); ICR Numbers: EPA ICR Number 2071.06, OMB Control Number 2060–0522; ICR Status: This ICR is scheduled to expire on September 30, 2015.
(63) Docket ID Number: EPA–HQ–OECA–2014–0102; Title: NSPS for Oil and Natural Gas Production and Natural Gas Transmission and Distribution (40 CFR Part 60, Subpart OOOO); ICR Numbers: EPA ICR Number 2437.03, OMB Control Number 2060–0673; ICR Status: This ICR is scheduled to expire on September 30, 2015.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), SmartWay Transport Partnership (Renewal) (EPA ICR No. 2265.02, OMB Control No. 2060–0663), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before June 26, 2014.
Submit your comments, referencing Docket ID No. EPA–HQ–OAR–2007–0482 to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.
Patty Klavon, U.S. Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number: 734–214–4476; Fax: 734–214–
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
SmartWay is open to organizations that own, operate, or contract with fleet operations, including truck and multi-modal carriers, logistics companies, and shippers. Organizations that do not operate fleets, but that are working to strengthen the freight industry, such as industry trade associations, state and local transportation agencies and environmental groups, also may join as SmartWay Affiliates. All organizations that join SmartWay are asked to provide EPA with information as part of their SmartWay registration to annually benchmark their transportation-related operations and improve the environmental performance of their freight activities.
A company joins SmartWay when it completes and submits a SmartWay Excel-based Partnership Tool (“reporting tool”) to EPA. The data outputs from the submitted tool are used by Partners and SmartWay in several ways. The data provides confirmation that SmartWay Partners are meeting established objectives as in their Partnership Agreement. The reporting tool outputs enable EPA to assist SmartWay Partners in adjusting their commitments, as appropriate, and to update them with environmental performance and technology information that empower them to improve their efficiency. This information also improves EPA's knowledge and understanding of the environmental and energy impacts associated with goods movement, and the effectiveness of both proven and emerging strategies to lessen those impacts.
In addition to requesting annual transportation-related data, EPA may ask its SmartWay Partners for other kinds of information, which could include opinions and test data on the effectiveness of new and emerging technology applications, sales volumes associated with SmartWay-recommended vehicle equipment and technologies, the reach and value of partnering with EPA through the SmartWay Partnership, and awareness of the SmartWay brand. In some instances, EPA might query other freight industry representatives (not just SmartWay Partners), including trade and professional associations, nonprofit environmental groups, energy, and community organizations, and universities, and a small sampling of the general public.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “Production Outlook Reports for Un-Registered Renewable Fuels Producers” (EPA ICR No.2409.02, OMB Control No. 2060–0660) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before June 26, 2014.
Submit your comments, referencing Docket ID Number EPA–HQ–OAR–2010–0258, to (1) EPA online using
EPA's policy is that all comments received will be included in the public
Geanetta Heard, Fuel Compliance Center, 6406J, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202–343–9017 fax number: 202–565–2085 email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
The information that respondents provide will allow EPA to more accurately project cellulosic biofuel volumes for the following calendar year, and these volume projections will form the basis of the percentage standards EPA sets under the RFS2 program. Without information from these respondents, EPA's volume projections are more likely to fall below actual projection volumes. Under such circumstances, actual supply for cellulosic biofuel will exceed the demand created by the standards EPA sets, and the value of cellulosic biofuel Renewable Identification Numbers (RINs) will fall. RINs are marketable credits that correspond to a given volume of renewable fuel. Since RIN market price directly affects the economic viability of cellulosic biofuel production, low RIN prices could present economic difficulties to producers. Thus, it is in the interests of these respondents to provide this information to EPA, as doing so could ensure that the market price of RINs appropriately reflects the value of their cellulosic biofuel. This information also serves a more general program purpose because it will assist EPA in setting the annual RFS2 standards more accurately for biomass-based diesel, advanced biofuel, and total renewable fuel. Compiling this information may also assist respondents with their planning and compliance activities. We believe that many parties would wish to submit this information in order to receive better assistance in understanding and complying with the RFS2 regulations.
Frequency of response: Yearly.
Environmental Protection Agency (EPA).
Notice of determination.
The Regional Administrator of the Environmental Protection Agency (EPA)—New England Region, has determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the remaining state coastal waters of the Commonwealth of Massachusetts.
Ann Rodney, U. S. Environmental Protection Agency—New England Region, Office of Ecosystem Protection, Oceans and Coastal Protection Unit, Five Post Office Square, Suite 100, OEP06–1, Boston, MA 02109–3912. Telephone: (617) 918–1538. Fax number: (617) 918–0538. Email address:
On March 28, 2014, EPA published a notice that the Commonwealth of Massachusetts had petitioned the Regional Administrator, Environmental Protection Agency, to determine that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the remaining coastal waters of Massachusetts. The petition was filed pursuant to Section 312 (f) (3) of Public Law 92–500, as amended by Public Laws 95–217 and 100–4, for the purpose of declaring these waters a No Discharge Area (NDA).
Section 312 (f) (3) states: After the effective date of the initial standards and regulations promulgated under this section, if any State determines that the protection and enhancement of the quality of some or all of the waters within such State require greater environmental protection, such State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters, except that no such prohibition shall apply until the Administrator determines that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for such water to which such prohibition would apply.
This determination covers three areas: A strip near the state-federal boundary
Massachusetts has certified that there are a total of 132 pumpout facilities in coastal Massachusetts:
Based on the examination of the petition and its supporting documentation, and information from site visits conducted by EPA New England staff, EPA has determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the area covered under this determination. This determination is made pursuant to Section 312 (f) (3) of Public Law 92–500, as amended by Public Laws 95–217 and 100–4.
U. S. Environmental Protection Agency.
Notice.
The Environmental Protection Agency (EPA) Office of the Science Advisor announces a public meeting of the Human Studies Review Board to advise the Agency on the ethical and scientific reviews of EPA research with human subjects.
This public meeting will be held on June 11, 2014, from approximately 10:30 a.m. to approximately 4:00 p.m. Eastern Time. Comments may be submitted on or before noon (Eastern Time) on Friday, June 4, 2014.
The meeting will be held at the Environmental Protection Agency, Conference Center, Lobby Level, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA 22202.
Any member of the public who wishes to receive further information should contact Jim Downing at telephone number (202) 564–2468; fax: (202) 564–2070; email address: downing.jim@epa.gov; mailing address Environmental Protection Agency, Office of the Science Advisor, Mail code 8105R, 1200 Pennsylvania Avenue NW., Washington, DC 20460. General information concerning the EPA HSRB can be found on the EPA Web site at
Web cast: This meeting may be webcast. Please refer to the HSRB Web site,
for information on how to access the webcast. Please note that the webcast is a supplementary public process provided only for convenience. If difficulties arise resulting in webcasting outages, the meeting will continue as planned.
This action is directed to the public in general. This Notice may, however, be of particular interest to persons who conduct or assess human studies, especially studies on substances regulated by the EPA, or to persons who are, or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act or the Federal Insecticide, Fungicide, and Rodenticide Act. This notice might also be of special interest to participants of studies involving human subjects, or representatives of study participants or experts on community engagement. The Agency has not attempted to describe all
In addition to using regulations.gov, you may access this
The EPA/DC Public Reading Room is located in the EPA Headquarters Library, Room Number 3334 in the EPA WJC West, at 1301 Constitution Avenue NW., Washington, DC 20460. The hours of operation are 8:30 a.m. to 4:30 p.m. Eastern Time, Monday through Friday, excluding federal holidays. Please call (202) 566–1744 or email the ORD Docket at
The Agency's position paper(s), charge/questions to the HSRB, and the meeting agenda will be available by the last week of May 2014. In addition, the Agency may provide additional background documents as the materials become available. You may obtain electronic copies of these documents, and other related documents that are available electronically, from the regulations.gov Web site and the EPA HSRB Web site at
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data that you used to support your views.
4. Provide specific examples to illustrate your concerns and suggest alternatives.
5. To ensure proper receipt by the EPA, be sure to identify the Docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
You may participate in this meeting by following the instructions in this section. To ensure proper receipt by the EPA, it is imperative that you identify Docket ID number EPA–HQ–ORD–2014–0411 in the subject line on the first page of your request.
1.
2.
The HSRB is a Federal advisory committee operating in accordance with the Federal Advisory Committee Act 5 U.S.C. App.2 § 9. The HSRB provides advice, information, and recommendations to the EPA on issues related to scientific and ethical aspects of human subjects research. The major objectives of the HSRB are to provide advice and recommendations on: (1) Research proposals and protocols; (2) reports of completed research with human subjects; and (3) how to strengthen EPA's programs for protection of human subjects of research. The HSRB reports to the EPA Administrator through the Agency's Science Advisor.
1.
a. Published report by Gardner et al (1988) of an intentional exposure human study measuring the effects of low dose oral iodide supplementation on thyroid function
b. Published report by Paul et al (1988) of an intentional exposure human study measuring the effects of small increases of dietary iodine on thyroid function
c. Published report by Lemar et al (1995) of an intentional exposure human study measuring the effects of chronic tetraglycine hydroperiodide water purification tablet use on thyroid function
d. Discussion of a report from the HSRB Work Group of the Return of Individual Research Results.
2.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office announces a public teleconference of the Clean Air Scientific Advisory Committee (CASAC) Augmented Sulfur Oxides Primary National Ambient Air Quality Standards (NAAQS) Review Panel to discuss its draft review of EPA's
The CASAC will hold a teleconference on Wednesday, June 11, 2014, from 1:00 p.m. to 4:00 p.m. (Eastern Time).
The CASAC public teleconference will take place via telephone only.
Any member of the public who wants further information concerning the CASAC's public teleconference may contact Dr. Diana Wong, Designated Federal Officer (DFO) via telephone at (202) 564–2049 or email at
The CASAC was established pursuant to the Clean Air Act (CAA) Amendments of 1977, codified at 42 U.S.C. 7409D(d)(2), to review air quality criteria and NAAQS and recommend any new NAAQS and revisions of existing criteria and NAAQS as may be appropriate. The CASAC shall also provide advice, information, and recommendations to the Administrator on the scientific and technical aspects of issues related to the criteria for air quality standards, research related to air quality, sources of air pollution, and of adverse effects which may result from various strategies to attain and maintain air quality standards. The CASAC is a Federal Advisory Committee chartered under the Federal Advisory Committee Act (FACA), 5 U.S.C., App. 2. Section 109(d)(1) of the CAA requires that the Agency periodically review and revise, as appropriate, the air quality criteria and the NAAQS for the six “criteria” air pollutants, including oxides of sulfur. EPA is currently reviewing the primary (health-based) NAAQS for sulfur dioxide (SO
For purposes of the review of the sulfur oxides air quality criteria for health and the primary NAAQS for sulfur dioxide, the CASAC Augmented Sulfur Oxides Review Panel was formed following a request for public nominations of experts (78 FR 43880—43881, July 22, 2013), and held a public teleconference on April 22, 2014 (as noticed in 79 FR 16325–16326) to peer review EPA's
Pursuant to FACA and EPA policy, notice is hereby given that the CASAC Augmented Sulfur Oxides Primary NAAQS Review Panel will hold a public teleconference to discuss CASAC's draft review of this EPA document. The CASAC Augmented Sulfur Oxides Review Panel will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies.
Federal advisory committees and panels, including scientific advisory committees, provide independent advice to EPA. Members of the public can submit relevant comments for a federal advisory committee to consider as it develops advice for EPA. Interested members of the public may submit relevant written or oral information on the topic of this advisory activity, and/or the group conducting the activity, for the CASAC to consider during the advisory process. Input from the public to the CASAC will have the most impact if it provides specific scientific or technical information or analysis for CASAC panels to consider or if it relates to the clarity or accuracy of the technical information. Members of the public wishing to provide comment should contact the DFO directly.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3520), the Federal Communication Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before July 28, 2014. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418–2918.
47 CFR 73.1942 requires broadcast licensees and 47 CFR 76.206 requires cable television systems to disclose any station practices offered to commercial advertisers that enhance the value of advertising spots and different classes of time (immediately preemptible, preemptible with notice, fixed, fire sale, and make good). These rule sections also require licensees and cable TV systems to calculate the lowest unit charge. Broadcast stations and cable systems are also required to review their advertising records throughout the election period to determine whether compliance with these rule sections require that candidates receive rebates or credits.
47 CFR 76.1611 requires cable systems to disclose to candidates information about rates, terms, conditions and all value-enhancing discount privileges offered to commercial advertisers.
Federal Communications Commission.
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501—3520), the Federal Communications Commission (FCC) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and further ways to reduce the information burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid Control Number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before July 28, 2014. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA comments to Leslie F. Smith, Office of Managing Director (OMD), Federal Communications Commission (FCC), via the Internet at
For additional information, contact Leslie F. Smith at (202) 418–0217, or via the Internet at
Federal Communications Commission.
Notice.
In this document, the Commission released a public notice announcing the meeting and agenda of the North American Numbering Council (NANC). The intended effect of this action is to make the public aware of the NANC's next meeting and agenda.
Tuesday, June 17, 2014, 10:00 a.m.
Federal Communications Commission, Portals II, 445 12th Street SW., Room 5–C162, Washington, DC 20554.
Carmell Weathers at (202) 418–2325 or
This is a summary of the Commission's document in CC Docket No. 92–237, DA 14–640 released May 13, 2014. The complete text in this document is available for public inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY–A257, Washington, DC 20554. The document my also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY–B402, Washington, DC 20554, telephone (800) 378–3160 or (202) 863–2893, facsimile (202) 863–2898, or via the Internet at
The North American Numbering Council (NANC) has scheduled a meeting to be held Tuesday, June 17, 2014, from 10:00 a.m. until 2:00 p.m. The meeting will be held at the Federal Communications Commission, Portals II, 445 12th Street SW., Room TW–C305, Washington, DC. This meeting is open to members of the general public. The FCC will attempt to accommodate as many participants as possible. The public may submit written statements to the NANC, which must be received two business days before the meeting. In addition, oral statements at the meeting by parties or entities not represented on the NANC will be permitted to the extent time permits. Such statements
People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to
Adjourn no later than 2:00 p.m.
Federal Communications Commission.
Notice.
The following applicants filed AM or FM proposals to change the community of license: Call Communications Group, Inc., Station WAZQ, Facility ID 175980, BPED–20140403ABW, from Islamorada, FL, to Duck Key, FL; Daij Media, LLC, Station KJOZ, Facility ID 20625, BP–20120731AAA, from Conroe, TX, to Baytown, TX; KRJG, INC., Station KNDN–FM, Facility ID 189502, BMPH–20140425ABU, from Teec Nos Pos, AZ, to Shiprock, NM; NRC Broadcasting Mountain Group, LLC, Station KIDN–FM, Facility ID 57339, BPH–20140311ACI, from Burns, CO, to Milner, CO; Ouachita Broadcasting, Inc., Station KENA–FM, Facility ID 50772, BPH–20140402AQH, from Mena, AR, to De Queen, AR; Powell Meredith Communications Company, Station NEW, Facility ID 161417, BMP–20140320AED, from Paradise, NV, to Enterprise, NV; Tracy McCutchen, Station NEW, Facility ID 189553, BMPH–20140403ABI, from Menard, TX, to Mertzon, TX; Vickers, Victor M, Station WVHY, Facility ID 191568, BMPH–20140306ACF, from Homerville, GA, to Axson, GA; Western Broadcasting LS, LLC, Station KURR, Facility ID 164147, BPH–20140317ABV, from Indian Springs, NV, to Hildale, UT.
Comments may be filed on or before July 28, 2014.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Tung Bui, 202–418–2700.
This is a summary of the Commission's document, Radio Broadcasting Services; AM or FM Proposals to Change the Community of License. The full text of these applications is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., Washington, DC 20554 or electronically via the Media Bureau's Consolidated Data Base System,
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
In accordance with the requirements of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. chapter 35), the FDIC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. As part of its continuing effort to reduce paperwork and respondent burden, the FDIC invites the general public and other Federal agencies to take this opportunity to comment on renewal of an existing information collection as required by PRA. On March 18, 2014 (79 FR 15122), the FDIC requested comment for 60 days on renewal of its information collection entitled
Comments must be submitted on or before June 26, 2014.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Leneta Gregorie, at the FDIC address above.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
Federal Deposit Insurance Corporation.
Update listing of financial institutions in liquidation.
Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing. This list (as updated from time to time in the
The Commission gives notice that the following Ocean Transportation Intermediary license has been reissued pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. 40101).
The Commission gives notice that the following Ocean Transportation Intermediary licenses have been revoked or terminated for the reason indicated pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. 40101) effective on the date shown.
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 June 10, 2014.
A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690–1414:
1.
This notice corrects a notice (FR Doc. 2014–11653) published on page 29190 of the issue for Wednesday, May 21, 2014.
Under the Federal Reserve Bank of St. Louis heading, the entry for Riney Family Control Group, is revised to read as follows:
A. Federal Reserve Bank of St. Louis (Yvonne Sparks, Community Development Officer) P.O. Box 442, St. Louis, Missouri 63166–2034:
1.
Comments on this application must be received by June 4, 2014.
Federal Trade Commission.
Proposed Consent Agreements.
The consent agreements in these matters settle alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis of Proposed Consent Orders to Aid Public Comment describes both the allegations in the draft complaints and the terms of the consent orders—embodied in the consent agreements—that would settle these allegations.
Comments must be received on or before June 18, 2014.
Interested parties may file comments at
Mark Taylor, Bureau of Competition, (202–326–2287), 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreements containing consent orders to cease and desist, have been filed with and accepted, subject to final approval, by the Commission, having been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreements, and the allegations in the complaints. An electronic copy of the full text of the consent agreement packages can be obtained from the FTC Home Page (for May 19, 2014), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before June 18, 2014. Write “Ski Manufacturers—Consent Agreement; File No. 121–0004” 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 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).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comment online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Ski Manufacturers—Consent Agreement; File No. 121–0004” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC–5610, (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street, SW., 5th Floor, Suite 5610, (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The Federal Trade Commission has accepted, subject to final approval, an agreement containing consent order (“Agreement”) from Marker Völkl (International) GmbH (“Marker Völkl”) and a separate Agreement from Tecnica Group SpA. (“Tecnica”). Marker Völkl and Tecnica are hereinafter sometimes referred to collectively as “Respondents.”
Respondents are manufacturers of various types of ski equipment. The Agreements settle charges that Marker Völkl and Tecnica both violated Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45, by agreeing with each other not to compete for the services of athlete endorsers and not to compete for the services of employees.
The Agreements have been placed on the public record for 30 days for receipt of comments from interested members
The purpose of this Analysis to Aid Public Comment is to invite and facilitate public comment concerning the proposed orders. It is not intended to constitute an official interpretation of the Agreements and proposed orders, or in any way to modify their terms.
The proposed orders are for settlement purposes only and do not constitute an admission by the Respondents that they violated the law or that the facts alleged in the Complaint, other than jurisdictional facts, are true.
This action addresses anticompetitive conduct in the ski equipment industry. The allegations of the Complaints are summarized below.
Marker Völkl and Tecnica manufacture, market, and sell ski equipment. The most effective and most costly tool for marketing ski equipment consists of securing endorsements from prominent ski athletes.
Endorsement agreements between a ski equipment company and a ski athlete are typically of short duration, and are subject to renewal. Commonly, the ski athlete: (i) Authorizes the company to use the athlete's name and likeness in promotions and in advertisements, (ii) agrees to use and promote the company's equipment on an exclusive basis, (iii) agrees to display the company's equipment when the athlete can attract media exposure, such as by holding up the skis at the end of a race, or taking the skis to the podium when receiving a medal, and/or (iv) agrees to appear at promotional events on behalf of the company. The association of a ski equipment brand with a prominent ski athlete generates sales, goodwill, and other benefits for the company.
As consideration for the ski athlete's endorsement services, the ski equipment company commonly provides the ski athlete with monetary compensation (keyed to the athlete's success in competitions), support services at competitions, free or discounted equipment, and/or travel expenses.
Ordinarily, ski equipment companies compete with one another to secure the endorsement services of prominent ski athletes. At the expiration of an endorsement agreement, a ski athlete can be induced to switch from one company to another in return for greater compensation, in much the same way that an employee can be induced to change employers in return for a higher salary or better benefits.
Endorsement agreements are the primary source of income for professional ski athletes.
In 1992, Marker Völkl began collaborating with Tecnica in the marketing and distribution of certain complementary ski equipment: Völkl brand skis, and Tecnica brand ski boots. Initially, these companies were not competitors: Tecnica did not have a ski; Marker Völkl did not have a ski boot.
In 2003, Tecnica acquired the Nordica ski equipment unit from Benetton Group SpA. Nordica manufactured and sold both skis and ski boots. Tecnica acquired a second ski manufacturer, Blizzard GmbH (“Blizzard”), in 2006.
The ski brands acquired by Tecnica (Nordica and Blizzard brands) were not included in the Marker Völkl/Tecnica collaboration. That is, Tecnica independently manufactures, markets, and distributes Nordica skis and Blizzard skis, in competition with Völkl skis.
Marker Völkl and Tecnica agreed not to compete with one another to secure the services of ski athletes and employees.
Beginning in or about 2004, Marker Völkl and Tecnica agreed not to compete with one another to secure the endorsement services of ski athletes. Specifically, Marker Völkl agreed not to solicit, recruit, or contract with a ski athlete who previously endorsed Tecnica's skis, or who was otherwise claimed by Tecnica. Tecnica agreed not to solicit, recruit, or contract with a ski athlete who previously endorsed Marker Völkl's skis, or who was otherwise claimed by Marker Völkl.
In 2007, Marker Völkl and Tecnica agreed to expand the scope of their non-compete agreements. Marker Völkl and Tecnica agreed not to compete for the services of any employee. Specifically, Marker Völkl agreed not to solicit, recruit, or contract with any employee of Tecnica. Tecnica agreed not to solicit, recruit, or contract with any employee of Marker Völkl.
Marker Völkl and Tecnica intended that these non-compete agreements would enable them to avoid bidding up (i) the cost of securing athlete endorsements, and (ii) the salaries paid to employees.
Respondents' conduct had the purpose, capacity, tendency, and likely effect of (i) restraining competition unreasonably, (ii) harming the economic interests of ski athletes, and (iii) harming the economic interests of the affected employees of Marker Völkl and Tecnica.
The Complaint alleges that both the athlete non-compete agreement and the employee non-compete agreement violate Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45.
These agreements are appropriately analyzed under the framework articulated by the Commission in the
These cases must be distinguished from (1) non-compete agreements between employers and their employees and (2) a no-hire agreement between the seller of a business and its buyer. Non-compete or no-hire agreements in those contexts do not generally receive
When an agreement is deemed inherently suspect, a party may avoid summary condemnation under the antitrust laws by advancing a legitimate
Here, the Commission finds reason to believe that the athlete non-compete agreement and the employee non-compete agreement serve no pro-competitive purpose. More specifically, these restraints are not reasonably necessary for the formation or efficient operation of the marketing collaboration between Marker Völkl and Tecnica. That the restraints are, at a minimum, overbroad is demonstrated by the fact that the agreements adversely affect competition for—and the compensation available to—athletes and employees who have no relationship with the collaboration.
The athlete non-compete agreement and the employee non-compete agreement serve to protect Marker Völkl and Tecnica from the rigors of competition, with no advantage to consumer welfare. The justifications for the non-compete agreements proffered by the Respondents were neither supported by the evidence nor cognizable under the antitrust laws. Because there is no plausible and cognizable efficiency rationale for the non-compete agreements, these inherently suspect agreements constitute unreasonable restraints on trade, and are properly judged to be illegal.
The proposed Orders are designed to remedy the unlawful conduct charged against Respondents in the Complaints and to prevent the recurrence of such conduct.
The proposed Orders enjoin Marker Völkl and Tecnica from, directly or indirectly, entering into, or attempting to enter into, an agreement with a ski equipment competitor to forbear from competing for U.S. athletes to sign endorsement contracts for the company's ski equipment. The proposed Orders also enjoin Marker Völkl and Tecnica from entering into an agreement with a ski equipment competitor to forbear from competing for the services of any U.S. employee. A proviso to the cease and desist requirements allows reasonable restraints ancillary to a legitimate joint venture.
The proposed Orders will expire in 20 years.
By direction of the Commission.
Notice and request for comments.
The Financial Stability Oversight Council (the “Council”) invites members of the public and affected agencies 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)). The Council is soliciting comments concerning its collection of information related to its authority to designate financial market utilities as systemically important. Section 804 of the Dodd-Frank Wall Street Reform and Consumer Protection (the “Dodd-Frank Act”) provides the Council the authority to designate a financial market utility (“FMU”) that the Council determines is or is likely to become systemically important because the failure of or a disruption to the functioning of the FMU could create, or increase, the risk of significant liquidity or credit problems spreading among financial institutions or markets and thereby threaten the stability of the United States financial system. On July 27, 2011, the Council published in the
Written comments must be received on or before July 28, 2014 to be assured of consideration.
You may submit comments by any of the following methods:
Requests for additional information about the filings or procedures should be directed to Executive Director, Financial Stability Oversight Council, Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220.
Commission to Eliminate Child Abuse and Neglect Fatalities, GSA.
Meeting Notice; Corrections.
The Commission to Eliminate Child Abuse and Neglect Fatalities (CECANF), a Federal Advisory Committee established by the Protect Our Kids Act of 2012, Public Law 112–275, is issuing corrections to amend the meeting time and registration information that was published in the
Contact Ms. Patricia Brincefield, Communications Director, at 202–818–9596, 1800 F St. NW., Room 7003D, Washington, DC 20006.
In the notice FR Doc. 2014–11142 published in the
1. On page 27613, in the second column, under
2. On page 27613, in the second column, under
The Agency for Toxic Substances and Disease Registry (ATSDR), as part of its continuing effort to reduce public 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. To request more information on the below proposed project or to obtain a copy of the information collection plan and instruments, call 404–639–7570 or send comments to LeRoy Richardson, 1600 Clifton Road, MS–D74, Atlanta, GA 30333 or send an email to
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget (OMB) approval. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected;(d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information. Written comments should be received within 60 days of this notice.
Assessment of Chemical Exposures (ACE) Investigations—New—Agency for Toxic Substances and Disease Registry (ATSDR)
The Agency for Toxic Substances and Disease Registry (ATSDR) is requesting a three-year generic clearance for the Assessment of Chemical Exposures (ACE) Investigations to assist state and local health departments after toxic
The ACE Investigations focus on performing rapid epidemiological assessments to assist state, regional, local, or tribal health departments (the requesting agencies) to respond to or prepare for acute chemical releases. The main objectives for performing these rapid assessments are to:
1. Characterize exposure and acute health effects of respondents exposed to toxic substances from discrete, chemical releases and determine their health statuses;
2. identify needs (i.e. medical and basic) of those exposed during the releases to aid in planning interventions in the community;
3. assess the impact of the incidents on health services use and share lessons learned for use in hospital, local, and state planning for chemical incidents; and
4. identify cohorts that may be followed and assessed for persistent health effects resulting from acute releases.
Because each chemical incident is different, it is not possible to predict in advance exactly what type of and how many respondents will need to be consented and interviewed to effectively evaluate the incident. Respondents typically include, but are not limited to emergency responders such as police, fire, hazardous material technicians, emergency medical services, and personnel at hospitals where patients from the incident were treated. Incidents may occur at businesses or in the community setting; therefore, respondents may also include business owners, managers, workers, customers, community residents, pet owners, and those passing through the affected area.
Data will be collected by the multi-disciplinary ACE team consisting of staff from ATSDR, the Centers for Disease Control and Prevention (CDC), and the requesting agencies. ATSDR has developed a series of draft survey forms that can be quickly tailored in the field to collect data that will meet the goals of the investigation. They will be administered based on time permitted and urgency. For example, it is preferable to administer the general survey to as many respondents as possible. However, if there are time constraints, the shorter household survey or the Rapid Response Registry form may be administered instead. The individual surveys collect information about exposure, acute health effects, health services use, medical history, needs resulting from the incident, communication during the release, health impact on children and pets, and demographic data. Hospital personnel are asked about the surge, response and communication, decontamination, and lessons learned.
Depending on the situation, data may be collected by face-to-face interviews, telephone interviews, written surveys, mailed surveys, or on-line surveys. Medical and veterinary charts may also be reviewed. In rare situations, an investigation might involve collection of clinical specimens.
In the past, ACE investigations have been performed in response to requests for assistance from state, regional, local, or tribal health departments under OMB No. 0920–0008, which expires July 31, 2014. ATSDR anticipates up to four ACE investigations per year. The number of participants has ranged from 30–715, averaging about 300 per year. Therefore, the total annualized estimated burden will be 591 hours per year.
Participation in ACE investigations is voluntary and there are no anticipated costs to respondents other than their time.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public 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. To request more information on the below proposed project or to obtain a copy of the information collection plan and instruments, call 404–639–7570 or send comments to LeRoy Richardson, 1600 Clifton Road, MS–D74, Atlanta, GA 30333 or send an email to
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget (OMB) approval. Comments are invited on: (a)
National Occupational Research Agenda (NORA) 2016 Decade Review—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
The National Institute for Occupational Safety and Health (NIOSH) is responsible for conducting research and making recommendations to prevent worker injury and illness, as authorized in Section 20(a)(1) of the Occupational Safety and Health Act (29 U.S.C. 669). In 1995–6, NIOSH saw an opportunity to enhance its ability to accomplish its mission through partnerships that involved a broad national stakeholder base in occupational safety and health. With stakeholder input, NIOSH developed and launched a decade-long partnership program titled the National Occupational Research Agenda (NORA) in 1996. Participation in NORA includes stakeholders from universities, large and small businesses, professional societies, government agencies, and worker organizations. After an internal management review of the first decade of NORA, conducted in 2005, NIOSH launched the second decade of NORA (2006–2016) structured for even greater national impact. This information collection is a necessary part of a larger internal NIOSH management review of the second decade of NORA. The results of this review will inform NIOSH decisions about how to structure a third decade of NORA (2016–2026) for maximum effectiveness and impact.
The second decade of NORA was based on a new sector structure to better move research to practice within workplaces. The work of the sectors is managed through a partnership structure of sector councils. Each council develops and maintains an agenda for the decade for its sector. The sector agendas become part of the national agenda for improvements in occupational safety and health through research and partnerships. Representing all stakeholders, the councils use an open process to set goals, develop strategies, encourage partnerships, and promote improved workplace practices.
NIOSH is requesting a 12-month OMB approval to administer a survey to NORA council members and leaders. The collection of information is necessary for NIOSH management to assess the efficiency and effectiveness of the NORA sector councils. The target population is all current and former members and leaders of each of the ten NORA Sector Councils. The web-based questionnaire requests information on satisfaction with the efficiency of the council and its processes, on impacts made in the sector during the second decade, and suggestions for improving the effectiveness and impact of NORA in the future. Without this data collection, NIOSH's internal management review of NORA would lack critical stakeholder input from its many non-Federal partners.
A 16-item questionnaire has been developed and will be sent to all 352 non-Federal NORA Sector council members or leaders. A pilot test of the questionnaire was conducted by asking eight NIOSH employees who are a leader of a NORA sector council to complete the questionnaire and provide feedback. Respondents to the pilot test estimated the questionnaire requires approximately 15 minutes to complete. The total estimated burden is 88 hours. There is no cost to respondents other than their time.
Administration on Intellectual & Developmental Disabilities, Administration for Community Living, HHS.
Notice.
The Administration for Community Living (ACL) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by July 28, 2014.
Submit electronic comments on the collection of information to:
Submit written comments on the collection of information to Administration for Community Living, One Massachusetts Avenue NW., Washington, DC 20201, attention Clare Barnett.
Clare Barnett, Program Specialist, Administration for Community Living, One Massachusetts Avenue NW., Washington, DC 20201.
This notice solicits comments on the information collection requirements relating to the Help America Vote Act (HAVA)), Public Law 107–252, Title II, Subtitle D, Part 2, Sections 261 to 265 (HAVA Narrative Annual Report). Under the PRA (44 U.S.C. 3501–3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency request or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
The Help America Vote Act (HAVA) Narrative Report from States and Units of Local Government is required by federal statute and regulation, the Help America Vote Act HAVA), Public Law 107–252, Title II, Subtitle D, Part 2, Sections 261 to 265, Payments to States and Units of Local Government to Assure Access for Individuals with Disabilities (42 U.S.C. 15421–25). The report is provided in writing to the Administration for Community Living, Administration on Intellectual and Developmental Disabilities. Each State or Unit of Local Government must prepare and submit an annual report at the end of every fiscal year. The report addresses the activities conducted with the funds provided during the year. The information collected from the annual report will be aggregated into an annual profile of how States have utilized the funds and establish best practices for election officials. It will also provide an overview of the State election goals and accomplishments and permit the Administration on Intellectual & Developmental Disabilities to track voting progress to monitor grant activities. ACL estimates the burden of this collection of information as follows: 55 Chief Election officials respond annually which should be an average burden of 20 hours per State per year or a total of 1,100 hours for all states annually.
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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 USC, as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Notice is hereby given of a change in the meeting of the Advisory Committee to the Director, National Institutes of Health, June 05, 2014, 09:00 a.m. to June 06, 2014 at 12:00 p.m., National Institutes of Health, which was published in the
The location of the meeting has been changed from Building 1, Room 126 to Building 31, 6th Floor, Conference Room 6. Any interested person may file written comments with the committee by forwarding the statement to Gretchen Wood, Staff Assistant, Office of the Director, One Center Drive, Building 1, Room 126, Bethesda, Maryland 20892–0148,
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following 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 meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 USC, as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following 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.
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.
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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Institute of Diabetes and Digestive and Kidney Diseases Special Emphasis Panel, July 14, 2014, 08:00 a.m. to July 15, 2014, 05:00 p.m., Residence Inn Bethesda, 7335 Wisconsin Avenue, Bethesda, MD, 20814 which was published in the
This meeting is being amended to reflect a new meeting location. The new meeting location is the Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Road, North Bethesda, MD 20852. The meeting is closed to the public.
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.
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 materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial
Notice.
The National Institutes of Health (NIH), National Center for Complementary and Alternative Medicine (NCCAM) is seeking feedback from stakeholders and other interested parties on a proposal to change the Center's name to National Center for Research on Complementary and Integrative Health. The public is invited to attend a public hearing and provide comments on the NCCAM Web site.
NCCAM will hold a public hearing to discuss the proposed name change as part of the meeting of the National Advisory Council on Complementary and Alternative Medicine. This meeting will be held on June 6, 2014 from 10:15–3:50 p.m. in Bethesda, Maryland.
The public is invited to provide comments through the NCCAM Web site at
The meeting will be held on the NIH Campus, Building 31/6C, Conference Room 10, 31 Center Drive, Bethesda, Maryland 20892. For information about access to the NIH campus, please visit
To request more information, visit the NCCAM Web site at
The National Center for Complementary and Alternative Medicine (NCCAM) was established in 1998. The mission is to define, through rigorous scientific investigation, the usefulness and safety of complementary and alternative medicine interventions and their roles in improving health and health care. To date, NCCAM's efforts to achieve this mission have been guided by NCCAM's strategic plans, located on the NCCAM Web site at
To better reflect the current research, clinical practice, and public use of complementary approaches, NCCAM is proposing its name be changed to National Center for Research on Complementary and Integrative Health. The primary goal in proposing this change is to enhance the Center's effectiveness in addressing its existing legislative mandate as reflected in subsections (a) and (c) of Public Law 105–277, Title VI.
NCCAM is seeking feedback from stakeholders and other interested parties on a proposal to change the Center's name and invites the public to attend the June 6, 2014 public hearing and to submit comments at
National Protection and Programs Directorate, DHS.
Committee Management; Notice of an Open Federal Advisory Committee Meeting.
The National Infrastructure Advisory Council (NIAC) will meet Thursday, June 12, 2014, at the United States Access Board, 1331 F Street NW., Suite 800, Washington, DC 20004. The meeting will be open to the public.
The NIAC will meet on Thursday, June 12, 2014, from 3:30 p.m. to 5:30 p.m. The meeting may close early if the committee has completed its business. For additional information, please consult the NIAC Web site,
United States Access Board, 1331 F Street NW., Suite 800, Washington, DC 20004.
For information on facilities or services for individuals with disabilities, or to request special assistance at the meeting, contact the person listed under
To facilitate public participation, we are inviting public comment on the issues to be considered by the Council as listed in the “Summary” section below. Comments must be submitted in writing no later than 12:00 p.m. on June 9, 2014, must be identified by “DHS–2014–0018,” and may be submitted by any one of the following methods:
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Members of the public will have an opportunity to provide oral comments on the Transportation Resilience Working Group study and on the developing Working Group recommendation for a CEO-level summary of the National Infrastructure Protection Plan 2013:
Nancy Wong, National Infrastructure Advisory Council Designated Federal Officer, Department of Homeland Security, (703) 235–2888.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92–463). The NIAC shall provide the President, through the Secretary of Homeland Security, with advice on the security and resilience of the Nation's critical infrastructure sectors.
The NIAC will meet to discuss issues relevant to critical infrastructure security and resilience as directed by the President. At this meeting, the committee will receive and discuss a presentation from the Transportation Resilience Working Group documenting their work to date on a study reviewing the Transportation Sector's resilience against potential, disruptive, events. The committee will also receive a working group update on a recommendation for an Executive Summary of NIPP 2013, targeted for use by CEO and C-Suite critical infrastructure owners and operators. Both presentations will be posted no later than one week prior to the meeting on the Council's public Web page—
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(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;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35
U.S. Geological Survey, Interior.
Meeting Notice
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App. 2, we announce that the Advisory Committee on Climate Change and Natural Resource Science will hold a meeting.
Sheraton Premiere at Tysons Corner, 8661 Leesburg Pike, Tysons Corner, Virginia, 22182, McLean Room.
Mr. Robin O'Malley, Designated Federal Officer, Policy and Partnership Coordinator, National Climate Change and Wildlife Science Center, U.S. Geological Survey, 12201 Sunrise Valley Drive, Mail Stop 400, Reston, VA 20192,
Chartered in May 2013, the Advisory Committee on Climate Change and Natural Resource Science (ACCCNRS) advises the Secretary of the Interior on the establishment and operations of the U.S. Geological Survey (USGS) National Climate Change and Wildlife Science Center (NCCWSC) and the Department of the Interior (DOI) Climate Science Centers (CSCs). ACCCNRS members represent federal agencies; state and local governments; American Indian tribes and other Native American entities; nongovernmental organizations; academic institutions; and the private sector. Duties of the committee include: (A) Advising on the contents of a national strategy identifying key science priorities to advance the management of natural resources in the face of climate change; (B) advising on the nature, extent, and quality of relations with and engagement of key partners at the regional/CSC level; (C) advising on the nature and effectiveness of mechanisms to ensure the identification of key priorities from management partners and to effectively deliver scientific results in useful forms; (D) advising on mechanisms that may be employed by the NCCWSC to ensure high standards of scientific quality and integrity in its products, and to review and evaluate the performance of individual CSCs, in advance of opportunities to re-establish expiring agreements; and (E) coordinating as appropriate with any Federal Advisory Committee established for the DOI Landscape Conservation Cooperatives. More information about the ACCCNRS is available at
Individuals or groups requesting to make comment at the public Committee meeting will be limited to 2 minutes per speaker. The Committee will endeavor to provide adequate opportunity for all speakers, within available time limits. Speakers who wish to expand upon their oral statements, or those who had wished to speak, but could not be accommodated during the public comment period, are encouraged to submit their comments in written form to the Committee after the meeting.
Written comments should be submitted, prior to, during, or after the meeting, to Mr. Robin O'Malley, Designated Federal Officer, by U.S. Mail to: Mr. Robin O'Malley, Designated Federal Officer, U.S. Geological Survey, 12201 Sunrise Valley Drive, Mail Stop 400, Reston, VA 20192, or via email, at
The meeting location is open to the public. Space is limited, so all interested in attending should pre-register. Please submit your name, time of arrival, email address and phone number to Mr. Robin O'Malley via email at
Bureau of Land Management, Interior.
Notice of Decision Approving Lands for Conveyance.
As required by 43 CFR 2650.7(d), notice is hereby given that an appealable decision will be issued by the Bureau of Land Management (BLM) to The Kuskokwim Corporation, Successor in Interest to Lower Kalskag, Incorporated. The decision approves the surface estate in the lands described below for conveyance pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601,
Containing 560 acres.
Notice of the decision will also be published once a week for four consecutive weeks in the
Any party claiming a property interest in the lands affected by the decision may appeal the decision in accordance with the requirements of 43 CFR part 4 within the following time limits:
1. Unknown parties, parties unable to be located after reasonable efforts have been expended to locate, parties who fail or refuse to sign their return receipt, and parties who receive a copy of the decision by regular mail which is not certified, return receipt requested, shall have until June 26, 2014 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4 shall be deemed to have waived their rights. Notices of appeal transmitted by electronic means, such as facsimile or email, will not be accepted as timely filed.
A copy of the decision may be obtained from: Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, AK 99513–7504.
The BLM by phone at 907–271–5960 or by email at
Bureau of Land Management, Interior.
Notice of creation of a new system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Department of the Interior is issuing a public notice of its intent to create the Bureau of Land Management (BLM) “General Land Office Records Automation System—Interior, BLM–42” system of records. The system of records contains information collected from publicly available historical Federal land conveyance documents (land patents, survey plats, field notes and land status records) maintained by the BLM General Land Office, and billing information of individuals requesting certified copies of land conveyance documents. The purpose of this system is to maintain, protect and preserve more than five million documents of historical relevance and to make these valuable resources for natural resource agencies, historians, surveyors, title companies, and genealogists available via the General Land Office Records Web site.
Comments must be received by July 7, 2014. This new system will be effective July 7, 2014.
Any person interested in commenting on this notice may do so by: submitting comments in writing to Suzanne Wachter, BLM Privacy Act Officer, 20 M Street SE., Mail Stop 590, Washington, DC 20003; hand-delivering comments to Suzanne Wachter, BLM Privacy Act Officer, 20 M Street SE., Mail Stop 590, Washington, DC 20003; or by emailing comments to
Branch Chief, General Land Office Records Automation, BLM, Eastern States, Branch of General Land Office Records, 20 M Street SE., Washington, DC 20003; or by telephone at 703–440–1786.
The Department of the Interior (DOI), BLM is creating the “General Land Office Records Automation System (GLORAS)—Interior, BLM–42” system of records. The purpose of this system is to maintain more than five million documents of historical relevance, to include: Survey plats, field notes, homesteads certificates, cash patents, military warrants, and railroad grants. These records are valuable resources for natural resource agencies, historians, surveyors, title companies, and genealogists. Increased demand for the information in these records and the preservation of the historic documents provided the impetus for the BLM to create an automated records archive and make the records available to the public.
The system will be effective as proposed at the end of the comment period on July 7, 2014, unless comments are received which would require a contrary determination. The DOI will publish a revised notice if changes are made based upon a review of the comments received.
The Privacy Act of 1974, as amended, embodies fair information practice principles in a statutory framework governing the means by which Federal agencies collect, maintain, use, and disseminate individuals' personal information. The Privacy Act applies to records about individuals that are maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some
The Privacy Act requires each agency to publish in the
In accordance with 5 U.S.C. 552a(r), DOI has provided a report of this system of records to the Office of Management and Budget and to Congress.
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.
General Land Office Records Automation System (GLORAS)—Interior, BLM–42
The system servers are located at the Department of the Interior, National Operation Center, Denver Federal Center, Building 50, Denver, CO 80225–0047. The records in the system are maintained at the Bureau of Land Management, General Land Office, 7450 Boston Blvd., Springfield, VA 22153.
Individuals covered by the system include patentees, warrantees, assignees, surveyors, and any other individual who has been associated with or named in any of these historical Federal land conveyance records. The system also contains information on individuals who request a certified copy of a Federal land conveyance record.
(1) Records in the system include but are not limited to information related to historical land documents, homesteads certificates, cash patents, military warrants, and railroad grants, including survey plats and field notes, land status records and controlled document indexes. Information within these records may include but are not limited to: Names of individuals, county, township, range, meridian, section number, Land Office, document number, Indian Allotment number, survey number, authority for the grant, issue date, militia grant, tribe, geographical name of the property, mining claim, survey type, surveyor name, contract/group number, survey approved date, and document type.
(2) The system also maintains records on individuals who submit requests to purchase certified copies of Federal land conveyance records that are not available to the public. Categories of records maintained on individuals requesting certified copies of Federal land conveyance records include: The individual's name, address, phone number, email address, and credit card number.
1 Stat. 464, The Public Land Act of 1796; 2 Stat. 716, The General Land Office Act, April 25, 1812; and 9 Stat. 395, Establishing Act of March 3, 1849.
The primary purpose of the system is to provide researchers and interested members of the public with online access to millions of historical land documents that may be used for research purposes, or in lieu of the original document to confirm title, or for historical or genealogical evidence. The system also manages online orders and billing records for individual members of the public who purchase certified copies of the historical documents. This information is used solely to process the requests.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, disclosures outside DOI may be made as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
(1) (a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The U.S. Department of Justice (DOJ);
(ii) A court or an adjudicative or other administrative body;
(iii) A party in litigation before a court or an adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before the Office of Hearings and Appeals;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(ii) DOI deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purpose for which the records were compiled.
(2) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if the covered individual is deceased, has made to the office.
(3) To any criminal, civil, or regulatory law enforcement authority (whether Federal, state, territorial, local, tribal or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(4) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(5) To Federal, state, territorial, local, tribal, or foreign agencies that have requested information relevant or
(6) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(7) To State, territorial and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(8) To an expert, consultant, or contractor (including employees of the contractor) of the DOI that performs services requiring access to these records on the DOI's behalf to carry out the purposes of the system. (9) To appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made to such agencies, entities and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(10) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A–19.
(11) To the Department of the Treasury to recover debts owed to the United States.
(12) To the news media and the public, with the approval of the Public Affairs Officer in consultation with Counsel and the Senior Agency Official for Privacy, where there exists a legitimate public interest in the disclosure of the information, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
(13) To other Federal, State, tribal organization and local government officials to retrieve or analyze specific legal land descriptions for projects under their authority which provides information needed to resolve discrepancies in land titles.
Pursuant to 5 U.S.C. 552a(b)(12), disclosures may be made to a consumer reporting agency as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1996 (31 U.S.C. 3701(a)(3)).
Electronic records are contained in computers, magnetic disks, computer tapes, removable drives, email and electronic databases. Both production and backup tapes are stored in a secure location in a government controlled environment. The original historical land records maintained in paper format are stored in acid-free boxes in climate access controlled vaults. Order forms maintained in paper format are contained in locked filing cabinets in government controlled facilities.
Records in the system are retrieved by an individual's name, county, township, range, meridian, section number, Land Office, document number, Indian Allotment number, survey number, authority for the grant, issue date, Militia grant, tribe, geographical name of the property, mining claim, survey type, surveyor name, contract/group number, survey approved date, document type, date of request, and order number.
Public access to the system is limited to the web interface that allows users to only retrieve public Federal land conveyance records and submit online orders. Safeguards for electronic records conform to Office of Management and Budget and Departmental guidelines reflecting the implementation of the Federal Information Security Management Act of 2002, National Institute of Standards and Technology Special Publication standards for Computer Security and the Department of the Interior regulations on safeguarding of Privacy Act information (43 CFR part 2). The computer servers in which electronic records are stored are located in secured DOI facilities.
Paper copies of order forms are housed within secure, locked metal cabinets in the secured BLM Eastern States Accounting Department, access to which is limited to authorized personnel. The original historical land records maintained in paper format are stored in acid-free boxes in climate access controlled vaults within secure BLM facilities.
Access to all components of the system is limited to authorized BLM employees and is protected by user identification and unique passwords. Administrative privileges for monitoring are only granted to administrator-level users. The system incorporates a firewall and independent security monitor subsystems to further strengthen the Web site against unauthorized access or monitoring.
All online orders and billing records are available only to authorized personnel having a need-to-know and who have successfully completed DOI's Federal Information System Security Awareness, Privacy and Records Management training, and have signed the Rules of Behavior. A Privacy Impact Assessment was conducted to ensure that Privacy Act requirements and safeguard requirements are met. The assessment verified that appropriate controls and safeguards are in place.
Historical land records are maintained permanently in accordance with BLM Manual 1220—Records and Information Management, Schedule 4, Item 7 of the GRS/BLM Combined Records Schedules. The paper records are retired to the Archive II, National Archives and Records Administration (NARA) of the United States, College Park, Maryland, after they have been electronically incorporated into GLORAS. The land records indexed by GLORAS are retained indefinitely. The billing information is retained for 14 calendar days in the GLORAS system and then purged. The information collected in the Collection and Billings System is disposed of 6 years and 3 months after the order date. The disposal of these records is covered by the Accountable Officers Files, Schedule 6, Section 1A GRS/BLM Combined Records Schedule.
Paper records are disposed of by shredding or pulping, and records contained on electronic media are degaussed or erased in accordance with NARA guidelines and 384 Departmental Manual 1.
Branch Chief, General Land Office Records Automation, Bureau of Land Management, Eastern States, Branch of
An individual requesting notification of the existence of records on himself or herself should send a signed, written inquiry to the System Manager identified above. The request envelope and letter should both be clearly marked “PRIVACY ACT INQUIRY.” A request for notification must meet the requirements of 43 CFR 2.235.
An individual requesting records on him or herself should send a signed, written inquiry to the System Manager identified above. The request should describe the records sought as specifically as possible. The request envelope and letter should both be clearly marked “PRIVACY ACT REQUEST FOR ACCESS.” A request for access must meet the requirements of 43 CFR 2.238.
An individual requesting corrections or the removal of material from his or her records should send a signed, written request to the System Manager identified above. A request for corrections or removal must meet the requirements of 43 CFR 2.246.
The historical land records contain information provided by individuals to whom the land was granted, the surveyors, and other individuals (both governmental and private) who were integral to this historical process. Information needed to complete online orders of certified land records is obtained directly from members of the public and other individuals who are requesting to purchase certified copies of Federal land conveyance records.
None.
Bureau of Land Management, Interior. ACTION: Notice.
The purpose of this notice is to reopen the request for public nominations for the Northern California Resource Advisory Council (RAC), which has 15 open positions this year. This RAC provides advice and recommendations to the Bureau of Land Management (BLM) on land use planning and management of the National System of Public Lands within northern California and far northwest Nevada. The BLM will accept public nominations for 30 days after the publication of this notice.
All nominations must be received no later than June 26, 2014.
Nominations should be sent to: Bureau of Land Management, 2950 Riverside Drive, Susanville, CA 96130, Attention, Jeff Fontana. Application forms are available online at:
Nancy K. Haug, Bureau of Land Management, Northern California District Manager, 355 Hemsted Drive, Redding, CA 96130; 530–224–2160.
The Federal Land Policy and Management Act (FLPMA) directs the Secretary of the Interior to involve the public in planning and issues related to management of lands administered by the BLM. Section 309 of FLPMA (43 U.S.C. 1739) directs the Secretary to establish 10- to 15-member citizen-based advisory councils that are consistent with the Federal Advisory Committee Act (FACA). As required by FACA, RAC membership must be balanced and representative of the various interests concerned with the management of the public lands. The rules governing RACs are found at 43 CFR subpart 1784 and include the following three membership categories:
Individuals may nominate themselves or others. Nominees must be residents of the State in which the RAC has jurisdiction. The BLM will evaluate nominees based on their education, training, experience, and knowledge of the geographical area of the RAC. Nominees should demonstrate a commitment to collaborative resource decision-making. The Obama Administration prohibits individuals who are currently federally registered lobbyists from being appointed or re-appointed to FACA and non-FACA boards, committees, or councils.
The following must accompany all nominations:
—Letters of reference from represented interests or organizations;
—A completed RAC application; and
—Any other information that addresses the nominee's qualifications.
Simultaneous with this notice, the BLM California State Office will issue a press release providing additional information for submitting nominations, with specifics about the number and categories of member positions available. If you have already submitted your nomination materials for the Northern California RAC in response to the first call for nominations published in the
43 CFR 1784.4–1.
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) is soliciting nominations for the vacant elected-official position on the BLM's Las Cruces District Resource Advisory Council (RAC). The council provides advice and recommendations to the BLM on the management of public lands in the Las Cruces District.
All nominations must be received no later than June 26, 2014.
Lauren Luckey, U.S. Department of the Interior, Bureau of Land Management, Correspondence, International, and Advisory Committee Office, 1849 C Street, NW., MS–MIB 5070, Washington, DC 20240; 202–208–3806.
The Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1739) directs the Secretary of the Interior to involve the public in planning and issues related to the management of lands administered by the BLM. Section 309 of FLPMA directs the Secretary to establish 10- to 15-member citizen-based advisory councils that conform to the requirements of the Federal Advisory Committee Act (FACA) (5 U.S.C Appendix 1). As required by FACA, RAC membership must be balanced and representative of the various interests concerned with the management of the public lands. The rules governing RACs are found at 43 CFR subpart 1784. Section 309(a) of FLPMA states that at least one member of the advisory council must be an elected official of general purpose government serving the people within the jurisdiction of the council. The vacant seat on the Las Cruces District RAC falls in category three as described in the regulations at 43 CFR 1784.6–1(c)(3). Individuals may nominate themselves or others to serve on the RAC. Nominees must be residents of New Mexico. The BLM will evaluate nominees based on their education, training, experience, and their knowledge of the geographical area of the RAC. Nominees should demonstrate a commitment to collaborative resource decision-making.
The Obama Administration prohibits individuals who are currently federally registered lobbyists from being appointed or re-appointed to FACA and non-FACA boards, committees, or councils.
The following must accompany all nominations:
☐ Letter of reference from represented interests or organizations;
☐ A completed background information nomination form; and
☐ Any other information that addresses the nominee's qualifications.
Nomination forms are available from Rena Gutierrez, Las Cruces District Office, BLM, 1800 Marquess St., Las Cruces, NM 88005, 575–525–4338 and online at
43 CFR 1784.4–1.
National Park Service, Interior.
Notice; request for comments.
We (National Park Service) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. As required by the Paperwork Reduction Act 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 collection of information (OMB #1024–0224). This IC is scheduled to expire on August 31, 2014. We may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
To ensure that your comments on this IC are considered, we must receive them on or before July 28, 2014.
Direct all written comments on this IC to Phadrea Ponds, Information Collection Coordinator, National Park Service, 1201 Oakridge Drive, Fort Collins, CO 80525 (mail); or Phadrea_Ponds@nps.gov (email). Please reference Information Collection 1024–0224 in the subject line.
Bret Meldrum, Chief, Social Science Program, National Park Service, 1201 Oakridge Drive, Fort Collins, CO 80525–5596 (mail); Bret_Meldrum@nps.gov (email); or 970–267–7295 (phone).
The NPS needs information concerning park visitors and visitor services, potential park visitors, and residents of communities near parks to provide National Park Service (NPS) managers with usable information for improving the quality and utility of agency programs, services, and planning efforts. Since many of the NPS surveys are similar in terms of the populations being surveyed, the types of questions being asked, and research methodologies, the NPS proposes to renew its clearance from OMB for a Generic Information Collection (1024–0224) of NPS-sponsored surveys. Since 1999, the benefits of this generic approval program have been significant to the NPS, Department of the Interior, OMB, NPS cooperators, and the public. Significant time and cost savings have been incurred and more than 550 surveys have been conducted in units throughout the National Park System. Approval is typically granted within 60 days or less from the date the Principal Investigator (PI) first submits the survey package to the NPS Information Review Coordinator for review. This is a significant reduction over the approximately 6–9 months involved in the regular OMB review process. We are requesting an extension of this collection for the purposes of revising the current Pool of Known questions that are the primary function of this process. We are planning to host a series of workshops of social science researches to update the original list of questions and topics that are more than 20 years old because many questions in the current listing are underutilized. This extension will allow for the effective outreach prescribed in item 8 of Supporting Statement Part A.
We invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this IC. 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.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of its determination to conduct, and scheduling of, full reviews pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) (the Act) to determine whether revocation of the antidumping duty orders on electrolytic manganese dioxide (“EMD”) from Australia and/or China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. The Commission has determined to exercise its authority to extend the review period by up to 90 days pursuant to 19 U.S.C. 1675(c)(5)(B). For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Cynthia Trainor (202–205–3354), 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 (
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the reviews must be served on all other parties to the review (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
Federal Bureau of Investigation, Criminal Justice Information Services Division, Department of Justice.
30-day notice.
The Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until June 26, 2014.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Mrs. Amy Blasher, Unit Chief, Federal Bureau of Investigation, Criminal Justice Information Services (CJIS) Division, Module E–3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306; telephone 304–625–4830, facsimile, 304 625–3566. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Officer of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or send to
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
The affected public who are asked to voluntarily respond is city, county, state, tribal, and federal U.S. law enforcement. Under Title 28, U.S. Code, Section 534, this information collection requests homicide data from respondents in order for the FBI UCR Program to serve as the national clearinghouse for the collection and dissemination of homicide data and to publish these statistics in Crime in the United States. The SHR provides for the national UCR Program a record of each homicide incident including details regarding the victim, offender, their relationship, the weapon used, and the circumstances in which each criminal homicide, justifiable homicide, and manslaughter by negligence is committed.
5.
6.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3W–1407B, Washington, DC 20530.
Notice is hereby given that, on April 21, 2014, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and USPVMC intends to file additional written notifications disclosing all changes in membership.
On November 14, 2011, USPVMC filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on August 20, 2013. A notice was published in the
Notice.
The Department of Labor (DOL) is submitting the Employment and Training Administration (ETA) sponsored information collection request (ICR) titled, “Employment and Training Data Validation Requirement,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before June 26, 2014.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–ETA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–6881 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Employment and Training Data Validation Requirement information collection that requires a state or not-for-profit private sector grantee to ascertain the validity of report and participant record data submitted to the ETA and to submit a quarterly data accuracy report to the ETA. The following programs are subject to the validation requirement covered by this ICR: Workforce Investment Act Title IB, Wagner-Peyser Act, Trade Adjustment Assistance, National Farmworker Jobs Program, and the Senior Community Service Employment Program.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on May 31, 2014. The DOL seeks to extend
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
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 thesepetitions, 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 June 6, 2014.
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 June 6, 2014.
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.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued an Amended Certification of Eligibility to Apply for Worker Adjustment Assistance on March 13, 2014, applicable to workers of International Paper Company, Courtland Alabama Paper Mill, Printing & Communications Papers Division, a subsidiary of International Paper Company, including on-site leased workers from Manpower and Western Express, Courtland, Alabama. The workers are engaged in activities related to the production of coated and uncoated freesheet paper.
At the request from a Liberty Healthcare Corporation official, the Department reviewed the certification for workers of the subject firm.
Additional information from International Paper Company confirms that workers leased from Liberty Healthcare Corporation were employed on-site at the Courtland, Alabama location of International Paper Company, Courtland Alabama Paper Mill, Printing & Communications Papers Division, a subsidiary of International Paper Company. The Department has determined that these workers were sufficiently under the control of International Paper Company to be considered leased workers.
The intent of the Department's certification is to include all workers of the subject firm who were adversely affected by increased imports of coated and uncoated freesheet paper.
Based on these findings, the Department is amending this certification to include workers leased from Liberty Healthcare Corporation working on-site at the Courtland, Alabama location of the subject firm.
The amended notice applicable to TA–W–83,129 is hereby issued as follows:
All workers from International Paper Company, Alabama Paper Mill, Printing & Communication Papers Division, a subsidiary of International Paper Company, including on-site leased workers from Manpower, Western Express, and Liberty Healthcare Corporation, Courtland, Alabama, who became totally or partially separated from employment on or after October 10, 2012 through February 6, 2016, and all workers in the group threatened with total or partial separation from employment on date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor (Department) issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on April 29, 2014, applicable to workers and former workers of Soy Basics, LLC, a wholly owned subsidiary of S.C. Johnson & Son, Inc., including on-site leased workers from Manpower, New Hampton, Iowa. The workers are/were engaged in activities related to the production of soy candles.
At the request of a state workforce official, the Department reviewed the certification for workers of the subject firm.
The company reports that workers leased from Labor Ready were employed on-site at the New Hampton, Iowa location of Soy Basics, LLC. The Department has determined that these workers were sufficiently under the control of the subject firm to be considered leased workers.
Based on these findings, the Department is amending this certification to include workers leased from Labor Ready working on-site at Soy Basics, LLC, a wholly owned subsidiary of S.C. Johnson & Son, Inc., New Hampton, Iowa.
The amended notice applicable to TA–W–85,191 is hereby issued as follows:
All workers of Soy Basics, LLC, a wholly owned subsidiary of S.C. Johnson & Son, Inc., including on-site leased workers from Manpower and Labor Ready, New Hampton, Iowa, who became totally or partially separated from employment on or after March 31, 2013 through April 29, 2016, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on May 17, 2012, applicable to workers of Startek USA, Inc., including on-site leased workers from Staffmark East, LLC, Jonesboro, Arkansas. The workers are engaged in activities related to the supply of business support and call center services.
At the request from the State of Arkansas, the Department reviewed the certification for workers of the subject firm.
The request was to amend the immediate certification to include workers of Staffmark working on-site at Startek USA, Inc., Jonesboro, Arkansas.
The Department has determined that these workers were sufficiently under the control of Startek USA, Inc. to be considered leased workers.
The intent of the Department's certification is to include all workers of the subject firm who were adversely
Based on these findings, the Department is amending this certification to include workers leased from Staffmark working on-site at the Jonesboro, Arkansas location of the subject firm.
The amended notice applicable to TA–W–81,500 is hereby issued as follows:
All workers of StarTek USA, Inc., including on-site leased workers from Staffmark East, LLC and Staffmark, Jonesboro, Arkansas, who became totally or partially separated from employment on or after March 27, 2011, through May 17, 2014, and all workers in the group threatened with total or partial separation from employment on May 17, 2012 through May 17, 2104, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
By application dated May 5, 2014, a worker requested administrative reconsideration of the Department of Labor's negative determination regarding eligibility to apply for worker adjustment assistance, applicable to workers and former workers of AXA Equitable Life Insurance Company, a subsidiary of AXA Financial, Inc., Charlotte, North Carolina (subject firm). The Department's Notice of determination was published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The negative determination was based on the Department's findings that the subject firm does not produce an article, within the meaning of the Trade Act of 1974, as amended.
The request for reconsideration stated that services supplied by the subject workers shifted to a foreign country.
The petitioner did not supply facts not previously considered; nor provide additional documentation indicating that there was either (1) a mistake in the determination of facts not previously considered or (2) a misinterpretation of facts or of the law justifying reconsideration of the initial determination. Based on these findings, the Department determines that 29 CFR 90.18(c) has not been met.
After careful review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
On its own action, the Department reviewed the determination for GMAC Mortgage, LLC, an indirect subsidiary of Residential Capital, LLC, now Ocwen Loan Servicing, LLC, a subsidiary of Ocwen Financial Corporation, Waterloo, Iowa to clarify the worker group. Based on additional and updated information, worker group is clarified as Ocwen Loan Servicing, LLC, a subsidiary of Ocwen Financial Corporation, including former workers of GMAC Mortgage, LLC, an indirect subsidiary of Residential Capital, LLC, Waterloo, Iowa (hereafter referred to as “Ocwen Loan Servicing, LLC” or “the subject firm”). The workers are engaged in activities related to the supply of mortgage loan services.
The worker group excludes workers totally or partially separated (or threatened with such separation) from the subject firm prior to February 15, 2013 (date of bankruptcy finalization).
Based on a careful review and clarification of previously-submitted information and additional information obtained during the reconsideration investigation, the Department determines that Section 222(a)(1) has been met because a significant number or proportion of the workers in Ocwen Loan Servicing, LLC have become totally or partially separated, or are threatened to become totally or partially separated and that Section 222(a)(2)(B) has been met because the workers' firm has shifted to a foreign country a portion of the supply of services like or directly competitive with the mortgage loan services supplied by the subject worker group, which contributed importantly to worker group separations at Ocwen Loan Servicing, LLC.
After careful review of previously-submitted facts and the additional facts obtained during the reconsideration investigation, I determine that workers Ocwen Loan Servicing, LLC, a subsidiary of Ocwen Financial Corporation, including former workers of GMAC Mortgage, LLC, an indirect subsidiary of Residential Capital, LLC, Waterloo, Iowa, who were engaged in employment related to the supply of mortgage loan services, meet the worker group certification criteria under Section 222(a) of the Act, 19 U.S.C. 2272(a). In accordance with Section 223 of the Act, 19 U.S.C. 2273, I make the following certification:
All workers of Ocwen Loan Servicing, LLC, a subsidiary of Ocwen Financial Corporation, including former workers of GMAC Mortgage, LLC, an indirect subsidiary of Residential Capital, LLC, Waterloo, Iowa, who became totally or partially separated from employment on or after February 15, 2013, through two years from the date of this certification, and all workers in the group threatened with total or partial separation from employment on date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
Mine Safety and Health Administration, Labor.
Notice.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and 30 CFR part 44 govern the application, processing, and disposition of petitions for modification. This notice is a summary of petitions for modification submitted to the Mine Safety and Health Administration (MSHA) by the parties listed below to modify the application of existing mandatory safety standards codified in Title 30 of the Code of Federal Regulations.
All comments on the petitions must be received by the Office of Standards, Regulations and Variances on or before June 26, 2014.
You may submit your comments, identified by “docket number” on the subject line, by any of the following methods:
1.
2.
3.
MSHA will consider only comments postmarked by the U.S. Postal Service or proof of delivery from another delivery service such as UPS or Federal Express on or before the deadline for comments.
Barbara Barron, Office of Standards, Regulations and Variances at 202–693–9447 (Voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary of Labor determines that:
1. An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or
2. That the application of such standard to such mine will result in a diminution of safety to the miners in such mine.
In addition, the regulations at 30 CFR 44.10 and 44.11 establish the requirements and procedures for filing petitions for modification.
(1) Some stages of assembly/disassembly of draglines require special consideration when the boom/mast is raising/lowering into position.
(2) The boom is raised/lowered utilizing the on-board motor generator sets. This process is critical because during this time, power to the machine, as much as possible, must not be interrupted. Power loss may result in the boom becoming uncontrolled and falling, and could injure workers. To address this condition, the petitioner proposes to use the following guidelines to help prevent loss of power to the machine. This procedure only addresses raising/lowering the boom of draglines utilizing the machine's electrical onboard motor generator sets. It does not replace other mechanical precautions or the requirements of 30 CFR 77.405(b) that are necessary to safely secure booms/masts during construction or maintenance procedures.
(3) The operator/contractor will develop and implement written procedures that will:
(a) Limit the number of persons needed on board the machine during the boom/mast raising/lowering. Only those persons critical to performing necessary functions will be permitted on board the machine.
(b) Explain the methods to be used to prevent off-board persons from contacting the frame cable of the machine. The area around the machine will be roped off or guarded.
(c) Prohibit other work activities in close proximity to the machine during the boom/mast operation.
(d) Establish a responsible person(s) at the work site who is familiar with all the requirements and is able to communicate at all times with the qualified person(s) at the substation. The responsible person(s) must remain at the work site during the boom/mast raising/lowering.
(e) Ensure that all persons involved with the boom/mast raising/lowering are familiar with the safety precautions.
(4) An MSHA-qualified electrician will complete an examination of all electrical components that will be energized during the boom raising/lowering process. The examination will be done within 2 hours prior to the boom raising/lowering process. A record of the examination will be made available for review. The machine will be deenergized to perform this examination.
(5) After the examination has been completed, electrical components necessary to complete the boom raising/lowering process will be energized to assure they are operating properly as determined by the MSHA-qualified electrician.
(6) The ground fault and ground check circuits may be disabled provided:
(a) The internal ground conductor of the trailing cable has been tested and is continuous from the frame of the dragline to the grounding resistor located at the substation. Utilizing the ground check circuit and disconnecting the pilot circuit and the machine frame and verifying the circuit breaker cannot be closed will be an acceptable test. Resistance measurements can also be used to assure the ground conductor is continuous. The grounding resistor will be tested to assure it is properly connected and is not open or shorted;
(b) Normal short circuit protection will be provided at all times. The overcurrent relay setting may be
(7) During the boom raising/lowering procedure an MSHA-qualified electrician(s) will be positioned at the substation and dedicated to monitoring the grounding circuit. The qualified person(s) will be able to detect a grounded phase condition, or an open ground conductor, without being exposed to shock hazards. The person(s) at the substation will at all times maintain communications with a responsible person at the dragline. If a grounded phase condition, or an open ground wire, should occur during the process, the person at the substation will notify the responsible person at the dragline. All persons on board the machine must be aware of the condition and must remain on board the machine. The boom will be controlled and the electrical circuit deenergized until the condition is corrected. The ground fault and ground check circuits will be reinstalled prior to reenergizing and testing. Once the circuits have been tested and no adverse conditions are present, the boom raising/lowering procedure may be resumed.
(8) During the boom raising/lowering procedure, persons are not permitted to get on/off the dragline while the ground check and ground fault circuits are disabled unless the circuit to the dragline is de-energized, locked and tagged out as verified by the qualified person at the substation.
(9) After the boom raising/lowering is completed the responsible person at the dragline will notify the qualified person(s) at the substation. The qualified person(s) will deenergize the circuit and restore the protective relays to their normal setting. Prior to reenergizing the circuit for normal operation, the circuit and its protective relays will be tested and examined as described in 30 CFR 77.800–1. The ground check will be tested by opening the ground check circuit at the machine to verify the circuit breaker cannot be closed. A record of the test and examination will be recorded as described in 30 CFR 77.800–1. Following completion of the test and examination, normal work can begin.
(10) Luminant will ensure that during the boom/mast raising/lowering all requirements listed in 30 CFR are complied with, except as explained above. It is paramount that the requirements for lock/tag out are followed, including grounding when required.
The petitioner asserts that the proposed alternative method will not result in a diminution of safety to the miners.
The petitioner states that:
(1) When attempting to uncover entries Numbers 8, 9 and 10 to seal them, only two entries were found rather than the three proposed in the previous petition and approved in the Proposed Decision and Order (PDO).
(2) Excavation was done on either side of the two exposed entries to the extent that an additional opening should have been revealed if it had existed. The coal seam and overburden were still in place on what should have been the portal bench for the third entry. Instead of continuing in line with the exposed mine entries, the base of the highwall flared, or projected out toward the coal outcrop on both sides of the two entries. On this basis it can reasonably be concluded that there are only two mine entries at this site.
(3) The only discernible date on the 8–C mine map is 1972, presumably at the time of mine closure. While it is currently common practice, as mandated by law, to open at least three entries at a portal site, this was not a requirement at the time portal Mine No. 8–C was established.
(4) It is evident that it was erroneously concluded that there were three entries at this portal when the petition for modification was being prepared for submittal. A close examination of the 8–C mine map reveals that only two of the entries at the portal are shown to be open.
(5) The locations of the two openings, along with the existing highwall, were recently verified by field survey. In view of these findings the petitioner is requesting that entry No. 8 be deleted from the PDO.
(6) Drainage will be provided for entry No. 10 as originally proposed, but the drain will be directed to the outlet near the left groin ditch at elevation 2078± rather than in the center underdrain since that is now covered with 125 to 130 feet of refuse.
The petitioner asserts that the alternative method provides the same degree of safety as the existing standard.
(1) The maximum length of the 480-volt trailing cables will be 1,000 feet.
(2) The trailing cables for the Roof Bolters will not be smaller than No. 2 American Wire Gauge (AWG) cable.
(3) All circuit breakers used to protect the No. 2 AWG trailing cables exceeding 700 feet in length will have instantaneous trip units calibrated to trip at 727 amperes at 10 percent guaranteed tolerance. The trip settings of these circuit breakers will be sealed to insure the trip setting cannot be changed, and these breakers will have permanent, legible labels. Each label will identify the circuit breaker as being suitable for protecting the No. 2 AWG cables.
(4) Replacement breakers and/or instantaneous trip units, used to protect the No. 2 AWG trailing cables will be calibrated to trip at 727 amperes at 10 percent guaranteed tolerance, and this setting will be sealed.
(5) All components that provide short-circuit protection will have sufficient interruption rating in accordance with the maximum calculated fault currents available.
(6) During each production day, the No. 2 AWG trailing cables and the circuit breakers will be examined in accordance with all 30 CFR provisions.
(7) Permanent warning labels will be installed and maintained on the loads center identifying the location of each short-circuit protective device. These labels will warn miners not to change or alter the settings of these devices.
(8) If the affected trailing cables are damaged during the shift, the cable will be deenergized and repairs will be made.
(9) The proposed alternative method will not be implemented until all miners who have been designated to operate the Roof Ranger II, or other persons designated to examine the trailing cables or trip settings on the circuit breakers, have received proper training.
(10) Within 60 days after this proposed decision and order becomes final, the proposed revisions for the petitioner's approved 30 CFR part 48 training plan will be submitted to the District Manager. The training plan will include the following:
(i) The hazards of setting the short-circuit interrupting device(s) too high to adequately protect the trailing cables;
(ii) How to verify that the circuit interrupting device(s) protecting the trailing cable(s) are properly set and maintained;
(iii) The mining methods and operating procedures that will protect the trailing cables against damage; and
(iv) The proper procedures for examining the trailing cables to ensure that the cables are in safe operating condition by visual inspection of the entire cable, observing the insulation, the integrity of the splices, nicks and abrasions.
The petitioner further states that procedures specified in 30 CFR 48.3 for proposed revisions to approved training plans will apply.
The petitioner asserts that the alternative method will guarantee no less than the same measure of protection for all miners afforded by the existing standard.
(1) The Bald Mountain mine has been in operation since 1984 during which time it has been inspected by MSHA at least twice per year. For the past 40 years Southwest Energy has routinely parked bulk equipment in company garage facilities at the Mine to address climate, security, and safety issues that may arise from working outdoors. Prior to July 2013, only one citation asserting that § 56.6801 applied to the parking of bulk equipment in the Southwest Energy shops for maintenance and repair has ever been upheld. Section 56.6801 specifically applies to vehicles containing both explosive material and oxidizers. The standard provides that vehicles containing explosive material and oxidizers should not be taken into a garage or shop, and is worded in such a manner that acknowledges the likelihood of a dangerous condition occurring only in the presence of both of these elements. According to the standard, where both explosive materials and oxidizers are present on a vehicle, that vehicle should not be taken into a repair garage or shop at any time.
(2) While Southwest Energy routinely takes steps to ensure that mixed blasting agents, un-sensitized emulsion, ammonium nitrate/fuel oil (ANFO), or any combination of these are not present in their bulk trucks when they are taken into shops, it is not always possible to ensure that trace amounts of blasting agents are not present in spite of those efforts. Additionally, it is possible, although not common, that a mechanical condition that is best addressed in the shop will arise in such a way as to preclude trying to empty all remnants of blasting agents from the augers before it can be repaired. It is situations like these that Southwest Energy seeks a modification of the standard.
(3) It is clear that the purpose of § 56.6801 is to keep potentially explosive material out of an environment where open flames or sparks are likely to occur. Southwest Energy's established practice is to both empty and thoroughly wash the bulk trucks of all ingredients before any hot work is performed on the equipment. Southwest Energy has issued a “Hot Work Program” which details exactly how to clean and inspect all trucks prior to any repairs or maintenance.
(4) Attempting to perform repairs on bulk trucks outdoors creates a host of hazards. Although it is required that a job hazard assessment be performed prior to each hot work job or task, there are many hazardous conditions that arise outside of Southwest Energy's control, primarily exposure to climate. Working in an open area exposes the miner to dust, wind, rain, excessive cold and heat and any number of conditions that increase the chance of an accident.
(5) Southwest Energy has shops in areas that experience both extremely cold and hot temperatures, and to perform work outdoors is of the utmost concern in terms of safety. The problem of climate conditions is further aggravated by the fact that it is not always possible to create a smooth level surface on which to work when not inside of a structurally safe environment. If the ground is not level it becomes extremely difficult to set jacks or even outriggers to provide a level working surface for the job under consideration. Jack slippage on uneven or rough terrain presents multiple hazards not the least of which is the chance that a load would fall off of its support and on the miners. The work being performed often involves lifting heavy tools or components, the risk of trips, slips, falls, sprains, strains and perhaps even broken bones rises.
(6) Southwest Energy has made every effort to never expose a bulk truck holding blasting agents to open flames or sparks. Still, the need to repair the equipment in question cannot be avoided. The danger of sparks and open flames to those performing maintenance presents different issues in terms of
(7) Working within the company shops will provide miners with the ability to perform necessary work absent the standards' literal mandate that present a far more dangerous scenario.
(8) Southwest Energy proposes to use the specific procedures listed below for compliance with the proposed alternative method for this petition:
(a) All highly explosive materials and oxidizers will be removed to the greatest extent possible from vehicles prior to entering the Southwest Energy shops.
(b) No hot work or open flames will be permitted within 50 feet of a vehicle containing blasting materials/agents.
(c) Any vehicles entering a bay to conduct hot work (grinding), welding, or cutting with an open flame will be emptied of all explosives, including blasting materials/agents, and washed prior to entry.
(d) A flashing light will be installed on top of the shop and on each bulk truck to warn anyone approaching that a truck used in the blasting process is in the bay.
(e) A rope or gate with a warning sign will be extended across shop entrances when trucks used in the blasting process are in bays for repair or maintenance.
(f) The number of persons working in the shops will be limited to the minimum required to conduct repair work or perform maintenance.
(g) All welders, grinders, torches and tools used for welding and cutting will be placed in a cage inside of the bay and will be locked during maintenance or repairs.
Individuals may review a complete description of the procedures the petitioner proposes to use for this petition at the MSHA address listed in this notice.
The petitioner asserts that the proposed alternative method will provide at least the same measure of safety as the existing standard.
Mine Safety and Health Administration, Labor.
Notice.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and 30 CFR part 44 govern the application, processing, and disposition of petitions for modification. This notice is a summary of petitions for modification submitted to the Mine Safety and Health Administration (MSHA) by the parties listed below to modify the application of existing mandatory safety standards codified in Title 30 of the Code of Federal Regulations.
All comments on the petitions must be received by the Office of Standards, Regulations and Variances on or before June 26, 2014.
You may submit your comments, identified by “docket number” on the subject line, by any of the following methods:
1.
2.
3.
MSHA will consider only comments postmarked by the U.S. Postal Service or proof of delivery from another delivery service such as UPS or Federal Express on or before the deadline for comments.
Barbara Barron, Office of Standards, Regulations and Variances at 202–693–9447 (Voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary of Labor determines that:
1. An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or
2. That the application of such standard to such mine will result in a diminution of safety to the miners in such mine.
In addition, the regulations at 30 CFR 44.10 and 44.11 establish the requirements and procedures for filing petitions for modification.
(1) The maximum lengths of the trailing cables supplying power to three-phase 995-volt continuous mining machines will be 1,100 feet and those supplying power to three-phase 995-volt roof bolting machines, feeder breakers, and auxiliary fans will be 1,000 feet.
(2) The trailing cables for the 995-volt continuous mining machines and feeder breakers will not be smaller than #2/0 American Wire Gauge (AWG), SHD–GC. The trailing cables for the 995-volt roof bolting machines and auxiliary fans will not be smaller than #2 AWG, SHD–GC.
(3) All circuit breakers used to protect #2/0 AWG trailing cables exceeding 850 feet in length will have instantaneous trip units calibrated to trip at 1500 amperes. The trip setting of these circuit breakers will be sealed so that the setting cannot be changed and these circuit breakers will have permanent, legible labels. Each label will identify the circuit breaker as being suitable for protecting #2/0 AWG cables. The labels will be maintained legible.
(4) Replacement circuit breakers and/or instantaneous trip units used to protect #2/0 AWG trailing cables will be
(5) The maximum length of the trailing cables supplying power to the three-phase 480-volt shuttle car(s) will not exceed 1,000 feet and will not be smaller than #2 AWG. Extended length trailing cable(s) used on shuttle cars will be three conductor round cable, Type G–GC, G, or G+GC. When a Type G–GC or Type G+GC round cable is used with wireless ground-wire monitoring, the ground check conductor will be connected as a ground conductor.
(6) All circuit breakers used to protect #2 AWG trailing cables exceeding 700 feet in length will have instantaneous trip units calibrated to trip at 800 amperes. The trip setting of these circuit breakers will be sealed or locked, and these circuit breakers will have permanent, legible labels. Each label will identify the circuit breaker as being suitable for protecting #2 AWG cables. The labels will be maintained legible.
(7) Replacement and/or instantaneous trip units used to protect #2 AWG trailing cables will be calibrated to trip at 800 amperes and this setting will be sealed. A certification tag showing the maximum amps and the date certified by Intermountain Electronics or another MSHA-acceptable vendor will be attached to the circuit breaker or trip unit.
(8) All components that provide short-circuit protection will have a sufficient interruption rating in accordance with the maximum calculated fault currents available. Short-circuit current setting must not exceed 75 percent of the minimum available current.
(9) The trailing cable for the continuous mining machines, auxiliary fans, and feeder breakers will be hung on well-insulated hangers from the section power center to the slack pile of the trailing cable for each machine or to the last open crosscut, whichever is further outby.
(10) During each production shift, persons designated by the mine operator will visually examine the trailing cables to ensure that the cables are in safe operating condition and that the instantaneous settings of the specially-calibrated circuit breaker settings, as stipulated previously, do not have seals removed or tampered with. The examination must verify that the cables are hung on insulated hangers and that excessive cable is not stored on the roof bolter and shuttle car cable reel(s). Any discrepancies must be corrected prior to operation.
(11) Permanent warning labels will be installed and maintained on the cover of the power center identifying the location of each sealed short-circuit protective device. These labels will warn miners not to change or alter these sealed short-circuit settings.
(12) In the event the mining methods or operating procedures cause or contribute to the damage of any trailing cable, the cable will be removed from service immediately and repaired or replaced. Also, additional precautions will be taken to ensure that the cable is protected and maintained in safe operating condition.
(13) The alternative method will not be implemented until all miners who have been designated to examine the integrity of seals, verify the short-circuit settings, and examine trailing cables for defects have received the elements of training contained in this petition.
(14) Within 60 days after the proposed decision and order becomes final, the petitioner will submit proposed revisions for their approved 30 CFR part 48 training plans to the District Manager. These revisions will specify task training for miners designated to examine the trailing cables for safe operating condition and verify that the short-circuit settings of the circuit-interrupting devices that protect the affecting trailing cables do not exceed the settings specified previously in this petition. The training will include the following elements:
(a) The hazards of setting the short circuit interrupting device too high to adequately protect the trailing cables.
(b) How to verify that the circuit interrupting device(s) protecting the trailing cable(s) are properly set and maintained.
(c) Mining methods and operating procedures that will protect the trailing cables against damage.
(d) Proper procedures for examining the trailing cables to ensure that the cables are in safe operating condition by visually inspecting the entire cable, observing the insulation, the integrity of splices, and any nicks or abrasions.
The petitioner asserts that the proposed alternative method will at all times guarantee at least the same measure of protection to the miners as would be provided by the existing standard.
(1) To comply with requirements for mine ventilation maps and mine maps in 30 CFR 75.372 and 75.1200, use of practical and accurate surveying equipment is necessary.
(2) Application of the existing standard would result in a diminution of safety to the miners. Coal mining by its nature and size and absolute necessity for accuracy requires accurate surveying measurements be completed in a very timely manner. The petitioner proposes the following as an alternative to the existing standard:
(a) Nonpermissible electronic surveying equipment will be used when the equivalent permissible electronic surveying equipment is not available. Such nonpermissible surveying equipment includes portable battery-operated total station surveying equipment, transits, distance meters, and data loggers.
(b) All nonpermissible electronic surveying equipment to be used in or inby the last open crosscut will be examined by surveying personnel prior to use to ensure the equipment is being maintained in a safe operating condition. These examinations will include the following steps:
(i) Checking the electronic surveying equipment for any obvious physical damage, including the case.
(ii) Removing the battery and inspecting for corrosion.
(iii) Inspecting the contact points to ensure a secure connection to the battery.
(iv) Reinserting the battery and powering up and shutting down to ensure proper connections.
(c) The results of such examinations will be recorded and retained for six months and made available to MSHA on request.
(d) A qualified person as defined in 30 CFR 75.151 will continuously monitor for methane immediately before and during the use of nonpermissible surveying equipment in or inby the last open crosscut.
(e) Nonpermissible surveying equipment will not be used if methane
(f) All hand-held methane detectors will be MSHA-approved and maintained in permissible and proper operating condition as defined in 30 CFR 75.320.
(g) Batteries in the surveying equipment will be changed out or charged in fresh air outby the last open crosscut.
(h) Qualified personnel who use surveying equipment will be properly trained to recognize the hazards associated with the use of nonpermissible surveying equipment in areas where methane could be present.
(i) The nonpermissible surveying equipment will not be put into service until MSHA has initially inspected the equipment and determined that it is in compliance with all the terms and conditions in this petition.
Within 60 days after the proposed decision and order becomes final, the petitioner will submit proposed revisions to the approved part 48 training plan to the District Manager. These proposed revisions will include the initial and refresher training regarding compliance with the terms and conditions stated in the proposed decision and order.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection as that afforded by the existing standard.
I. The petitioner proposes to use the following procedures for preparing and plugging vertical to horizontal oil and gas shale wells:
(a) When preparing and plugging vertical to horizontal oil and gas shale wells that has not been previously plugged, the petitioner proposes to use the following procedure to ensure that no gas from the well reaches the lowest mineable coal seam and to prepare the well to be plugged for mining through the wellbore:
(1) The wellbore will be filled with water, and/or an approved equivalent to load the hole and control the well.
(2) The vertical well will be plugged to its attainable depth using approved mechanical bridge plug(s), cement, fly ash cement, gel, and/or other approved materials as required by Federal and State laws, regulations, and standards to effectively isolate and seal the oil/gas producing zones from the vertical well to protect the mineable coal seams and the environment to a location within the wellbore approximately 200 feet below the lowest mineable coal seam.
(3) An affidavit of the vertical well plugging will be provided to the coal mining regulatory agencies.
(b) The petitioner proposes to use the following procedure to prepare the plugged well for mining through when the well has been previously plugged in accordance with Federal and State laws, regulations, and standards to effectively isolate and seal the oil/gas producing zones from the vertical well to protect the mineable coal seams and the environment.
(1) An affidavit of the original well plugging will be thoroughly reviewed and provided to the coal mining regulatory agencies.
(2) The well will be effectively cleaned to a depth that would permit placement of at least 200 feet of expanding cement below the base of the lowest mineable coal seam.
(c) The petitioner proposes to use the following procedures to complete the well plugging and prepare the well for mine-through when a well has been effectively plugged in accordance with Federal and State laws, regulations, and standards to effectively isolate and seal the oil/gas producing zones to a location within the wellbore approximately 200 feet from the lowest mineable coal seam:
(1) A suite of logs will be made consisting of a caliper survey, directional deviation survey, and log(s) suitable for determining the top and bottom of the lowest mineable coal seam and potential hydrocarbon-producing strata.
(2) The wellbore will be effectively cleaned to a depth at least 200 feet below the lowest mineable coal seam and the wellbore will be filled and circulated with a gel to inhibit the flow of any gases, support the wellbore, and aid the introduction of the expanding cement.
(3) The well casing(s) will be effectively milled, cut, or perforated from the inner casing to the geologic strata at locations approximately 200 feet and approximately 100 feet below the lowest mineable coal seam.
(4) The well casing(s) will be effectively milled or cut sufficiently below, throughout, and above the coal seam to be mined to enable the coal seam to be safely and effectively mined through the plugged wellbore.
(5) A minimum of 200 feet of expanding cement will be effectively placed in the wellbore below the lowest mineable coal seam and to a point not less than 100 feet above the top of the highest mineable coal seam.
(6) Expanding cement, Portland cement, a cement fly ash mixture, or an approved equivalent, will be effectively placed from the top of the expanding cement to the surface.
(7) A monument with an API number will be installed at the plugged well location.
(8) An affidavit will be filed setting forth the persons who participated in the work, a description of the plugging work, and a certification by the petitioner that the well has been plugged as described.
II. The petitioner proposes to use the following procedures for mining through a plugged vertical to horizontal oil or gas well by the continuous mining method:
(1) Prior to mining within 300 feet of the well, the MSHA District Office will be notified verbally and with a letter and a drawing detailing the well location. If according to the down-hole deviation survey a plugged well is found to be located within 20 feet of projected mining, the procedures and safeguards listed below will be utilized. All distances will be measured along a line drawn perpendicular to the entry or crosscut being mined and the plugged well.
(2) All personnel working underground will be informed of the cut-through, the evacuation, and communication procedures to be used at the beginning of the shift in which a well will be cut-through. Management will ensure that all personnel can be promptly informed of any problem that might develop and of evacuation (if required) during the well cut-through.
(3) The mining through will be done at a time when only those miners actually engaged in the mining-through operation, and those necessary to operate ancillary equipment (haulage, conveyors, ventilation, etc.) are within 1,000 feet of the location of the well (on the intake side) being cut-through. No persons will be allowed in the section return downwind of the cut-through, but will be allowed in the return downwind of the location where the section return mixes with another return
(4) When mining approaches within 10 feet of cutting into the plugged well, a designated person in each operating section will be posted near the section phone (within hearing distance), or monitoring a radio on a designated channel until the cut-through is complete and an “ALL CLEAR” command is given. All miners in the outby areas of the mine will be working at known locations within radio or telephone communications. There will be no activities in remote areas without communications, ensuring quick evacuation of the mine in the event of any emergency at the cut-through area. The communication system will be checked at the beginning of the shift and within 10 feet of the cut-through.
(5) Firefighting equipment, including fire extinguishers, rock dust and enough fire hose to reach the working face will be available near the working area.
(6) Sufficient supplies of roof support and ventilation materials will be available near the working area.
(7) A minimum of 5,000 cubic feet of air per minute will be used to ventilate the working face during the mining-through operation. The ventilation plan and methane and dust control plan will be complied with.
(8) The equipment will be checked for permissibility and serviced on the shift prior to mining through the well.
(9) The methane monitor on the continuous mining machine will be calibrated on the shift prior to mining through the well. The calibration may be checked during the first half of the shift if the well is to be intersected during the section half of the shift.
(10) Drivage sights will be installed at the last open crosscut near the place to be mined to ensure intersection of the well. A laser or additional drivage sights will be used to ensure that the sight line is not more than 50 feet from the well.
(11) The working place will be free from accumulations of coal dust and coal spillages, and rock dust will be placed on the roof, rib, and floor to within 20 feet of the face when mining through the well.
(12) Tests for methane will be made with a hand-held methane detector and a probe at least every 10 minutes when mining within 30 feet of the well. These methane tests will continue until the gas well is intersected. A test for methane will also be made immediately prior to the anticipated mining through of the gas well.
(13) Immediately after the well is intersected, all equipment located in or inby the last open crosscut such as the continuous mining machine, the loader, the shuttle car, the face fan and roof bolter machine will be de-energized and the place thoroughly examined and determined safe by a certified foreman before mining is resumed. The face fan may be left energized to ventilate the working place provided someone is stationed at the discharge end of the fan and is continuously monitoring the methane. If the methane level in the discharge of the fan reaches one percent, the fan will be deenergized. Any well casing will be removed and no open flame will be permitted in the area until adequate ventilation has been established around the well. After the well cut-through is complete and the area is determined safe by a certified person, the miners outby the affected area may enter the section return and the affected area.
(14) The mining-through operation will be under the direct supervision of the mine foreman or a certified person designated by the mine foreman. Instructions concerning the mining-through operation will be issued only by the mine foreman or the certified person designated by the mine foreman to be in charge.
(15) The MSHA field office will be notified in sufficient time prior to mining-through, to have a representative present during the actual mining-through if necessary.
(16) The mining procedures and a drawing of the area will be reviewed with all personnel involved in the mining-through operation prior to the intersection of the plugged well.
III. The petitioner proposes to use following procedures and safeguards for mining past a plugged gas or oil well by the continuous mining method (greater than 20 feet away but less than 30 feet):
(a) If through mapping and plotting of a down-hole deviation survey of a plugged oil or gas well, mining will be greater than 20 feet away but less than 30 feet away from the well as measured from projected rib line, the following plan will be used:
(1) Prior to mining within 300 feet of the well, the MSHA District Office will be notified verbally and with a letter and a drawing detailing the well location.
(2) When mining is within 30 feet of a line drawn perpendicular to the entry or crosscut being mined and the plugged well, tests of methane will be made with a hand-held methane detector and a probe at least every 10 minutes. These methane tests will continue until mining has progressed to a point inby the perpendicular line.
(3) All other cut-through procedures do not apply to plugged oil or gas wells greater than 20 feet away but less than 30 feet away from projected mining.
IV. The petitioner proposes to use the following procedures and safeguards for mining past a plugged gas or oil well by the continuous mining method (greater than 30 feet):
(a) If through mapping and plotting of a down-hole deviation survey of a plugged oil or gas well, mining will be greater than 30 feet from the well as measured from projected rib line, the following plan will be used:
(1) Prior to mining within 300 feet of the well, the MSHA District Office will be notified verbally and with a letter and a drawing detailing the well location.
(2) Cut-through procedures do not apply to plugged oil or gas wells greater than 30 feet away from projected mining.
V. The petitioner proposes to use the following procedures and safeguards for mining through a plugged gas or oil well by the longwall mining method:
(1) Prior to mining within 300 feet of the well, the MSHA District Office will be notified verbally and with a letter and a drawing detailing the well location.
(2) All personnel working underground will be informed of the cut-through, the evacuation, and communication procedures to be used at the beginning of the shift in which a well will be cut-through. Management will ensure that all personnel can be promptly informed of any problem that might develop and of evacuation (if required) during the well cut-through.
(3) The mining through will be done at a time when only those miners actually engaged in the mining-through operation, and those necessary to operate ancillary equipment (haulage, conveyors, ventilation, etc.) are within 1,000 feet of the longwall face. When the distance from the well is within 10 feet of touching the wellbore, all workers or responsible persons will be notified and no mining will be done within 20 feet on either side of the well until all persons except those mentioned above have been withdrawn outby the affected area. The well will be surveyed and located to know when to stop mining.
(4) When mining approaches within 10 feet of cutting into the plugged well, a designated person in each operating
(5) Firefighting equipment, including fire extinguishers, rock dust and enough fire hose to reach the working face will be available in the immediate area of the longwall.
(6) Sufficient supplies of roof support and ventilation materials will be available in the immediate area of the longwall.
(7) The latest approved ventilation plan requirement for air reaching the longwall face and required face velocities will be maintained during the mining-through operation. The ventilation plan and methane and dust control plan will be complied with.
(8) Equipment will be checked for permissibility and serviced on the shift prior to mining through the well.
(9) The methane monitors on the longwall will be calibrated on the shift prior to mining through the well. The calibration may be checked during the first half of the shift if the well is to be intersected during the section half of the shift.
(10) Special location spads will be in the tailgate and headgate entries to define the exact location of the plugged well. An additional spad or marked area will be installed 20 feet from the location. In addition, the shields adjacent to a 10 foot radius of the well will be identified.
(11) A normal mining rate will be maintained across the longwall face except in the area defined by a 10 foot radius of the plugged well. Mining through this area will be done at a reduced mining rate until the wellbore is contacted.
(12) When mining is in progress and the longwall face is within 10 feet of the well, tests for methane will be made with a hand-held methane detector on every pass across the longwall face or at a maximum of every 10 minutes. These tests will be made until the well is intersected.
(13) Immediately after the well is intersected, all equipment on the longwall face such as the shearer, the stageloader and the face conveyor will be deenergized and the place thoroughly examined by a certified foreman and determined safe before mining is resumed. Any well casing will be removed and no open flame will be permitted in the area until adequate ventilation has been established around the well. After the well cut-through is complete and the area is determined safe, the miners may enter the affected area.
(14) The mining-through operation will be under the direct supervision of the mine foreman or a certified person designated by the mine foreman. Instructions concerning the mining-through operation will be issued only by the mine foreman or the certified person designated by the mine foreman to be in charge.
(15) The MSHA field office will be notified in sufficient time prior to mining-through, to have a representative present during the actual mining-through if necessary.
(16) The mining procedures and a drawing of the area will be reviewed with all personnel involved in the mining-through operation prior to the intersection of the plugged well.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure or protection afforded by the existing standard.
I. The petitioner proposes to use the following procedures for preparing and plugging vertical to horizontal oil and gas shale wells:
(a) When preparing and plugging vertical to horizontal oil and gas shale wells that has not been previously plugged, the petitioner proposes to use the following procedure to ensure that no gas from the well reaches the lowest mineable coal seam and to prepare the well to be plugged for mining through the wellbore:
(1) The wellbore will be filled with water, and/or an approved equivalent to load the hole and control the well.
(2) The vertical well will be plugged to its attainable depth using approved mechanical bridge plug(s), cement, fly ash cement, gel, and/or other approved materials as required by Federal and State laws, regulations, and standards to effectively isolate and seal the oil/gas producing zones from the vertical well to protect the mineable coal seams and the environment to a location within the wellbore approximately 200 feet below the lowest mineable coal seam.
(3) An affidavit of the vertical well plugging will be provided to the coal mining regulatory agencies.
(b) The petitioner proposes to use the following procedure to prepare the plugged well for mining through when the well has been previously plugged in accordance with Federal and State laws, regulations, and standards to effectively isolate and seal the oil/gas producing zones from the vertical well to protect the mineable coal seams and the environment.
(1) An affidavit of the original well plugging will be thoroughly reviewed and provided to the coal mining regulatory agencies.
(2) The well will be effectively cleaned to a depth that would permit placement of at least 200 feet of expanding cement below the base of the lowest mineable coal seam.
(c) The petitioner proposes to use the following procedures to complete the well plugging and prepare the well for mine-through when a well has been effectively plugged in accordance with Federal and State laws, regulations, and standards to effectively isolate and seal the oil/gas producing zones to a location within the wellbore approximately 200 feet from the lowest mineable coal seam:
(1) A suite of logs will be made consisting of a caliper survey, directional deviation survey, and log(s) suitable for determining the top and bottom of the lowest mineable coal seam and potential hydrocarbon-producing strata.
(2) The wellbore will be effectively cleaned to a depth at least 200 feet below the lowest mineable coal seam and the wellbore will be filled and circulated with a gel to inhibit the flow of any gases, support the wellbore, and aid the introduction of the expanding cement.
(3) The well casing(s) will be effectively milled, cut, or perforated from the inner casing to the geologic strata at locations approximately 200 feet and approximately 100 feet below the lowest mineable coal seam.
(4) The well casing(s) will be effectively milled or cut sufficiently below, throughout, and above the coal seam to be mined to enable the coal seam to be safely and effectively mined through the plugged wellbore.
(5) A minimum of 200 feet of expanding cement will be effectively placed in the wellbore below the lowest mineable coal seam and to a point not less than 100 feet above the top of the highest mineable coal seam.
(6) Expanding cement, Portland cement, a cement fly ash mixture, or an approved equivalent, will be effectively placed from the top of the expanding cement to the surface.
(7) A monument with an API number will be installed at the plugged well location.
(8) An affidavit will be filed setting forth the persons who participated in the work, a description of the plugging work, and a certification by the petitioner that the well has been plugged as described.
II. The petitioner proposes to use the following procedures for mining through a plugged vertical to horizontal oil or gas well by the continuous mining method:
(1) Prior to mining within 300 feet of the well, the MSHA District Office will be notified verbally and with a letter and a drawing detailing the well location. If according to the down-hole deviation survey a plugged well is found to be located within 20 feet of projected mining, the procedures and safeguards listed below will be utilized. All distances will be measured along a line drawn perpendicular to the entry or crosscut being mined and the plugged well.
(2) All personnel working underground will be informed of the cut-through, the evacuation, and communication procedures to be used at the beginning of the shift in which a well will be cut-through. Management will ensure that all personnel can be promptly informed of any problem that might develop and of evacuation (if required) during the well cut-through.
(3) The mining through will be done at a time when only those miners actually engaged in the mining-through operation, and those necessary to operate ancillary equipment (haulage, conveyors, ventilation, etc.) are within 1,000 feet of the location of the well (on the intake side) being cut-through. No persons will be allowed in the section return downwind of the cut-through, but will be allowed in the return downwind of the location where the section return mixes with another return split of air if this point is more than 1,000 feet from the location of the well. When the distance from the well is within 10 feet of touching the wellbore, all workers and responsible persons will be notified and no mining will be done until all persons except those mentioned above have been withdrawn outby the affected area. The well will be surveyed and located as to know when to stop mining.
(4) When mining approaches within 10 feet of cutting into the plugged well, a designated person in each operating section will be posted near the section phone (within hearing distance), or monitoring a radio on a designated channel until the cut-through is complete and an “ALL CLEAR” command is given. All miners in the outby areas of the mine will be working at known locations within radio or telephone communications. There will be no activities in remote areas without communications, ensuring quick evacuation of the mine in the event of any emergency at the cut-through area. The communication system will be checked at the beginning of the shift and within 10 feet of the cut-through.
(5) Firefighting equipment, including fire extinguishers, rock dust and enough fire hose to reach the working face will be available near the working area.
(6) Sufficient supplies of roof support and ventilation materials will be available near the working area.
(7) A minimum of 5,000 cubic feet of air per minute will be used to ventilate the working face during the mining-through operation. The ventilation plan and methane and dust control plan will be complied with.
(8) The equipment will be checked for permissibility and serviced on the shift prior to mining through the well.
(9) The methane monitor on the continuous mining machine will be calibrated on the shift prior to mining through the well. The calibration may be checked during the first half of the shift if the well is to be intersected during the section half of the shift.
(10) Drivage sights will be installed at the last open crosscut near the place to be mined to ensure intersection of the well. A laser or additional drivage sights will be used to ensure that the sight line is not more than 50 feet from the well.
(11) The working place will be free from accumulations of coal dust and coal spillages, and rock dust will be placed on the roof, rib, and floor to within 20 feet of the face when mining through the well.
(12) Tests for methane will be made with a hand-held methane detector and a probe at least every 10 minutes when mining within 30 feet of the well. These methane tests will continue until the gas well is intersected. A test for methane will also be made immediately prior to the anticipated mining through of the gas well.
(13) Immediately after the well is intersected, all equipment located in or inby the last open crosscut such as the continuous mining machine, the loader, the shuttle car, the face fan and roof bolter machine will be de-energized and the place thoroughly examined and determined safe by a certified foreman before mining is resumed. The face fan may be left energized to ventilate the working place provided someone is stationed at the discharge end of the fan and is continuously monitoring the methane. If the methane level in the discharge of the fan reaches one percent, the fan will be deenergized. Any well casing will be removed and no open flame will be permitted in the area until adequate ventilation has been established around the well. After the well cut-through is complete and the area is determined safe by a certified person, the miners outby the affected area may enter the section return and the affected area.
(14) The mining-through operation will be under the direct supervision of the mine foreman or a certified person designated by the mine foreman. Instructions concerning the mining-through operation will be issued only by the mine foreman or the certified person designated by the mine foreman to be in charge.
(15) The MSHA field office will be notified in sufficient time prior to mining-through, to have a representative present during the actual mining-through if necessary.
(16) The mining procedures and a drawing of the area will be reviewed with all personnel involved in the mining-through operation prior to the intersection of the plugged well.
III. The petitioner proposes to use following procedures and safeguards for mining past a plugged gas or oil well by the continuous mining method (greater than 20 feet away but less than 30 feet):
(a) If through mapping and plotting of a down-hole deviation survey of a plugged oil or gas well, mining will be greater than 20 feet away but less than 30 feet away from the well as measured from projected rib line, the following plan will be used:
(1) Prior to mining within 300 feet of the well, the MSHA District Office will be notified verbally and with a letter and a drawing detailing the well location.
(2) When mining is within 30 feet of a line drawn perpendicular to the entry or crosscut being mined and the plugged well, tests of methane will be made with a hand-held methane detector and a
(3) All other cut-through procedures do not apply to plugged oil or gas wells greater than 20 feet away but less than 30 feet away from projected mining.
IV. The petitioner proposes to use the following procedures and safeguards for mining past a plugged gas or oil well by the continuous mining method (greater than 30 feet):
(a) If through mapping and plotting of a down-hole deviation survey of a plugged oil or gas well, mining will be greater than 30 feet from the well as measured from projected rib line, the following plan will be used:
(1) Prior to mining within 300 feet of the well, the MSHA District Office will be notified verbally and with a letter and a drawing detailing the well location.
(2) Cut-through procedures do not apply to plugged oil or gas wells greater than 30 feet away from projected mining.
V. The petitioner proposes to use the following procedures and safeguards for mining through a plugged gas or oil well by the longwall mining method:
(1) Prior to mining within 300 feet of the well, the MSHA District Office will be notified verbally and with a letter and a drawing detailing the well location.
(2) All personnel working underground will be informed of the cut-through, the evacuation, and communication procedures to be used at the beginning of the shift in which a well will be cut-through. Management will ensure that all personnel can be promptly informed of any problem that might develop and of evacuation (if required) during the well cut-through.
(3) The mining through will be done at a time when only those miners actually engaged in the mining-through operation, and those necessary to operate ancillary equipment (haulage, conveyors, ventilation, etc.) are within 1,000 feet of the longwall face. When the distance from the well is within 10 feet of touching the wellbore, all workers or responsible persons will be notified and no mining will be done within 20 feet on either side of the well until all persons except those mentioned above have been withdrawn outby the affected area. The well will be surveyed and located to know when to stop mining.
(4) When mining approaches within 10 feet of cutting into the plugged well, a designated person in each operating section will be posted near the section phone (within hearing distance), or monitoring a radio on a designated channel until the cut-through is complete and an “ALL CLEAR” command is given by a certified person. All miners in the outby areas of the mine will be working at known locations within radio or telephone communications. There will be no activities in remote areas without communications, ensuring quick evacuation of the mine in the event of any emergency at the cut-through area. The communication system will be checked at the beginning of the shift and when within 10 feet of the cut-through.
(5) Firefighting equipment, including fire extinguishers, rock dust and enough fire hose to reach the working face will be available in the immediate area of the longwall.
(6) Sufficient supplies of roof support and ventilation materials will be available in the immediate area of the longwall.
(7) The latest approved ventilation plan requirement for air reaching the longwall face and required face velocities will be maintained during the mining-through operation. The ventilation plan and methane and dust control plan will be complied with.
(8) Equipment will be checked for permissibility and serviced on the shift prior to mining through the well.
(9) The methane monitors on the longwall will be calibrated on the shift prior to mining through the well. The calibration may be checked during the first half of the shift if the well is to be intersected during the section half of the shift.
(10) Special location spads will be in the tailgate and headgate entries to define the exact location of the plugged well. An additional spad or marked area will be installed 20 feet from the location. In addition, the shields adjacent to a 10 foot radius of the well will be identified.
(11) A normal mining rate will be maintained across the longwall face except in the area defined by a 10 foot radius of the plugged well. Mining through this area will be done at a reduced mining rate until the wellbore is contacted.
(12) When mining is in progress and the longwall face is within 10 feet of the well, tests for methane will be made with a hand-held methane detector on every pass across the longwall face or at a maximum of every 10 minutes. These tests will be made until the well is intersected.
(13) Immediately after the well is intersected, all equipment on the longwall face such as the shearer, the stageloader and the face conveyor will be deenergized and the place thoroughly examined by a certified foreman and determined safe before mining is resumed. Any well casing will be removed and no open flame will be permitted in the area until adequate ventilation has been established around the well. After the well cut-through is complete and the area is determined safe, the miners may enter the affected area.
(14) The mining-through operation will be under the direct supervision of the mine foreman or a certified person designated by the mine foreman. Instructions concerning the mining-through operation will be issued only by the mine foreman or the certified person designated by the mine foreman to be in charge.
(15) The MSHA field office will be notified in sufficient time prior to mining-through, to have a representative present during the actual mining-through if necessary.
(16) The mining procedures and a drawing of the area will be reviewed with all personnel involved in the mining-through operation prior to the intersection of the plugged well.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure or protection afforded by the existing standard.
I. The petitioner proposes to use the following procedures for preparing and plugging vertical to horizontal oil and gas shale wells:
(a) When preparing and plugging vertical to horizontal oil and gas shale wells that has not been previously plugged, the petitioner proposes to use the following procedure to ensure that no gas from the well reaches the lowest mineable coal seam and to prepare the well to be plugged for mining through the wellbore:
(1) The wellbore will be filled with water, and/or an approved equivalent to load the hole and control the well.
(2) The vertical well will be plugged to its attainable depth using approved mechanical bridge plug(s), cement, fly ash cement, gel, and/or other approved materials as required by Federal and State laws, regulations, and standards to effectively isolate and seal the oil/gas producing zones from the vertical well to protect the mineable coal seams and the environment to a location within the wellbore approximately 200 feet below the lowest mineable coal seam.
(3) An affidavit of the vertical well plugging will be provided to the coal mining regulatory agencies.
(b) The petitioner proposes to use the following procedure to prepare the plugged well for mining through when the well has been previously plugged in accordance with Federal and State laws, regulations, and standards to effectively isolate and seal the oil/gas producing zones from the vertical well to protect the mineable coal seams and the environment.
(1) An affidavit of the original well plugging will be thoroughly reviewed and provided to the coal mining regulatory agencies.
(2) The well will be effectively cleaned to a depth that would permit placement of at least 200 feet of expanding cement below the base of the lowest mineable coal seam.
(c) The petitioner proposes to use the following procedures to complete the well plugging and prepare the well for mine-through when a well has been effectively plugged in accordance with Federal and State laws, regulations, and standards to effectively isolate and seal the oil/gas producing zones to a location within the wellbore approximately 200 feet from the lowest mineable coal seam:
(1) A suite of logs will be made consisting of a caliper survey, directional deviation survey, and log(s) suitable for determining the top and bottom of the lowest mineable coal seam and potential hydrocarbon-producing strata.
(2) The wellbore will be effectively cleaned to a depth at least 200 feet below the lowest mineable coal seam and the wellbore will be filled and circulated with a gel to inhibit the flow of any gases, support the wellbore, and aid the introduction of the expanding cement.
(3) The well casing(s) will be effectively milled, cut, or perforated from the inner casing to the geologic strata at locations approximately 200 feet and approximately 100 feet below the lowest mineable coal seam.
(4) The well casing(s) will be effectively milled or cut sufficiently below, throughout, and above the coal seam to be mined to enable the coal seam to be safely and effectively mined through the plugged wellbore.
(5) A minimum of 200 feet of expanding cement will be effectively placed in the wellbore below the lowest mineable coal seam and to a point not less than 100 feet above the top of the highest mineable coal seam.
(6) Expanding cement, Portland cement, a cement fly ash mixture, or an approved equivalent, will be effectively placed from the top of the expanding cement to the surface.
(7) A monument with an API number will be installed at the plugged well location.
(8) An affidavit will be filed setting forth the persons who participated in the work, a description of the plugging work, and a certification by the petitioner that the well has been plugged as described.
II. The petitioner proposes to use the following procedures for mining through a plugged vertical to horizontal oil or gas well by the continuous mining method:
(1) Prior to mining within 300 feet of the well, the MSHA District Office will be notified verbally and with a letter and a drawing detailing the well location. If according to the down-hole deviation survey a plugged well is found to be located within 20 feet of projected mining, the procedures and safeguards listed below will be utilized. All distances will be measured along a line drawn perpendicular to the entry or crosscut being mined and the plugged well.
(2) All personnel working underground will be informed of the cut-through, the evacuation, and communication procedures to be used at the beginning of the shift in which a well will be cut-through. Management will ensure that all personnel can be promptly informed of any problem that might develop and of evacuation (if required) during the well cut-through.
(3) The mining through will be done at a time when only those miners actually engaged in the mining-through operation, and those necessary to operate ancillary equipment (haulage, conveyors, ventilation, etc.) are within 1,000 feet of the location of the well (on the intake side) being cut-through. No persons will be allowed in the section return downwind of the cut-through, but will be allowed in the return downwind of the location where the section return mixes with another return split of air if this point is more than 1,000 feet from the location of the well. When the distance from the well is within 10 feet of touching the wellbore, all workers and responsible persons will be notified and no mining will be done until all persons except those mentioned above have been withdrawn outby the affected area. The well will be surveyed and located as to know when to stop mining.
(4) When mining approaches within 10 feet of cutting into the plugged well, a designated person in each operating section will be posted near the section phone (within hearing distance), or monitoring a radio on a designated channel until the cut-through is complete and an “ALL CLEAR” command is given. All miners in the outby areas of the mine will be working at known locations within radio or telephone communications. There will be no activities in remote areas without communications, ensuring quick evacuation of the mine in the event of any emergency at the cut-through area. The communication system will be checked at the beginning of the shift and within 10 feet of the cut-through.
(5) Firefighting equipment, including fire extinguishers, rock dust and enough fire hose to reach the working face will be available near the working area.
(6) Sufficient supplies of roof support and ventilation materials will be available near the working area.
(7) A minimum of 5,000 cubic feet of air per minute will be used to ventilate the working face during the mining-through operation. The ventilation plan and methane and dust control plan will be complied with.
(8) The equipment will be checked for permissibility and serviced on the shift prior to mining through the well.
(9) The methane monitor on the continuous mining machine will be calibrated on the shift prior to mining through the well. The calibration may be checked during the first half of the shift if the well is to be intersected during the section half of the shift.
(10) Drivage sights will be installed at the last open crosscut near the place to be mined to ensure intersection of the well. A laser or additional drivage sights will be used to ensure that the sight line is not more than 50 feet from the well.
(11) The working place will be free from accumulations of coal dust and coal spillages, and rock dust will be placed on the roof, rib, and floor to within 20 feet of the face when mining through the well.
(12) Tests for methane will be made with a hand-held methane detector and a probe at least every 10 minutes when mining within 30 feet of the well. These methane tests will continue until the gas well is intersected. A test for methane will also be made immediately prior to the anticipated mining through of the gas well.
(13) Immediately after the well is intersected, all equipment located in or inby the last open crosscut such as the continuous mining machine, the loader, the shuttle car, the face fan and roof bolter machine will be de-energized and the place thoroughly examined and determined safe by a certified foreman before mining is resumed. The face fan may be left energized to ventilate the working place provided someone is stationed at the discharge end of the fan and is continuously monitoring the methane. If the methane level in the discharge of the fan reaches one percent, the fan will be deenergized. Any well casing will be removed and no open flame will be permitted in the area until adequate ventilation has been established around the well. After the well cut-through is complete and the area is determined safe by a certified person, the miners outby the affected area may enter the section return and the affected area.
(14) The mining-through operation will be under the direct supervision of the mine foreman or a certified person designated by the mine foreman. Instructions concerning the mining-through operation will be issued only by the mine foreman or the certified person designated by the mine foreman to be in charge.
(15) The MSHA field office will be notified in sufficient time prior to mining-through, to have a representative present during the actual mining-through if necessary.
(16) The mining procedures and a drawing of the area will be reviewed with all personnel involved in the mining-through operation prior to the intersection of the plugged well.
III. The petitioner proposes to use following procedures and safeguards for mining past a plugged gas or oil well by the continuous mining method (greater than 20 feet away but less than 30 feet):
(a) If through mapping and plotting of a down-hole deviation survey of a plugged oil or gas well, mining will be greater than 20 feet away but less than 30 feet away from the well as measured from projected rib line, the following plan will be used:
(1) Prior to mining within 300 feet of the well, the MSHA District Office will be notified verbally and with a letter and a drawing detailing the well location.
(2) When mining is within 30 feet of a line drawn perpendicular to the entry or crosscut being mined and the plugged well, tests of methane will be made with a hand-held methane detector and a probe at least every 10 minutes. These methane tests will continue until mining has progressed to a point inby the perpendicular line.
(3) All other cut-through procedures do not apply to plugged oil or gas wells greater than 20 feet away but less than 30 feet away from projected mining.
IV. The petitioner proposes to use the following procedures and safeguards for mining past a plugged gas or oil well by the continuous mining method (greater than 30 feet):
(a) If through mapping and plotting of a down-hole deviation survey of a plugged oil or gas well, mining will be greater than 30 feet from the well as measured from projected rib line, the following plan will be used:
(1) Prior to mining within 300 feet of the well, the MSHA District Office will be notified verbally and with a letter and a drawing detailing the well location.
(2) Cut-through procedures do not apply to plugged oil or gas wells greater than 30 feet away from projected mining.
V. The petitioner proposes to use the following procedures and safeguards for mining through a plugged gas or oil well by the longwall mining method:
(1) Prior to mining within 300 feet of the well, the MSHA District Office will be notified verbally and with a letter and a drawing detailing the well location.
(2) All personnel working underground will be informed of the cut-through, the evacuation, and communication procedures to be used at the beginning of the shift in which a well will be cut-through. Management will ensure that all personnel can be promptly informed of any problem that might develop and of evacuation (if required) during the well cut-through.
(3) The mining through will be done at a time when only those miners actually engaged in the mining-through operation, and those necessary to operate ancillary equipment (haulage, conveyors, ventilation, etc.) are within 1,000 feet of the longwall face. When the distance from the well is within 10 feet of touching the wellbore, all workers or responsible persons will be notified and no mining will be done within 20 feet on either side of the well until all persons except those mentioned above have been withdrawn outby the affected area. The well will be surveyed and located to know when to stop mining.
(4) When mining approaches within 10 feet of cutting into the plugged well, a designated person in each operating section will be posted near the section phone (within hearing distance), or monitoring a radio on a designated channel until the cut-through is complete and an “ALL CLEAR” command is given by a certified person. All miners in the outby areas of the mine will be working at known locations within radio or telephone communications. There will be no activities in remote areas without communications, ensuring quick evacuation of the mine in the event of any emergency at the cut-through area. The communication system will be checked at the beginning of the shift and when within 10 feet of the cut-through.
(5) Firefighting equipment, including fire extinguishers, rock dust and enough fire hose to reach the working face will be available in the immediate area of the longwall.
(6) Sufficient supplies of roof support and ventilation materials will be available in the immediate area of the longwall.
(7) The latest approved ventilation plan requirement for air reaching the longwall face and required face velocities will be maintained during the mining-through operation. The ventilation plan and methane and dust control plan will be complied with.
(8) Equipment will be checked for permissibility and serviced on the shift prior to mining through the well.
(9) The methane monitors on the longwall will be calibrated on the shift prior to mining through the well. The calibration may be checked during the first half of the shift if the well is to be intersected during the section half of the shift.
(10) Special location spads will be in the tailgate and headgate entries to define the exact location of the plugged well. An additional spad or marked area will be installed 20 feet from the location. In addition, the shields adjacent to a 10 foot radius of the well will be identified.
(11) A normal mining rate will be maintained across the longwall face except in the area defined by a 10 foot radius of the plugged well. Mining through this area will be done at a reduced mining rate until the wellbore is contacted.
(12) When mining is in progress and the longwall face is within 10 feet of the well, tests for methane will be made with a hand-held methane detector on every pass across the longwall face or at a maximum of every 10 minutes. These tests will be made until the well is intersected.
(13) Immediately after the well is intersected, all equipment on the longwall face such as the shearer, the stageloader and the face conveyor will be deenergized and the place thoroughly examined by a certified foreman and determined safe before mining is
(14) The mining-through operation will be under the direct supervision of the mine foreman or a certified person designated by the mine foreman. Instructions concerning the mining-through operation will be issued only by the mine foreman or the certified person designated by the mine foreman to be in charge.
(15) The MSHA field office will be notified in sufficient time prior to mining-through, to have a representative present during the actual mining-through if necessary.
(16) The mining procedures and a drawing of the area will be reviewed with all personnel involved in the mining-through operation prior to the intersection of the plugged well.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure or protection afforded by the existing standard.
(1) The Sebastian Mine's secondary escapeway at crosscut 14 above the #3 intake entry of Main South over the overcast located there currently measures 33 inches high (at its lowest point on an incline with increasing height for clearance) with 20 feet of width.
(2) The coal seam's thickness, plus additional height taken for support, averages 60 inches.
(3) The stable roof and related support in the area have been in place since 2007.
(4) Both the roof and floor is solid sandstone in the area and require inadvisable drilling and shooting that could destabilize conditions if additional height was sought for the reference safety standards compliance by those methods.
(5) Shooting would require shutting down ventilation, short-circuiting almost the entire mine, killing power, not pumping, and placing the whole mine in potential distress and jeopardy.
(6) Relocating the mines secondary escapeway is not a reasonable option at this time.
(7) Based on the experience of a 5-man stretcher test conducted in this specific area, as well as over the subsequent three overcasts at the request and under the timed observation of an MSHA inspector, the petitioner proposes an alternative method of compliance.
(a) A successful test of the proposed alternative method occurred on February 27, 2014, when four Sebastian miners carried a fifth miner across all four overcasts in a timely manner approximately six and one-half minutes.
(b) To negotiate the 33 inch overcast space at crosscut 14 above the #3 intake entry of the Main South, the miner strapped on the stretcher was placed on two (2) four wheeled dollies and efficiently, and effectively transported by the other 4 miners across the area of concern in a very safe and timely manner. Most, if not all, mine rescue stretchers are wheeled.
(c) The stretchers are routinely slid through man-doors and otherwise used to transport, or train for transporting, injured miners without any requirement of 100 percent “carrying” as a misreading of the referenced standard might imply.
(d) Moving someone on a stretcher carefully on wheels can be much safer, quicker, more efficient and effective under difficult conditions or circumstances than manually carrying an injured person on a stretcher.
The petitioner further states that:
(1) The operator will at all times maintain two (2) low profile four-wheeled dollies in good working order and leave them at that location for potential use if required. The dollies will be checked monthly during mine rescue practices to confirm continual suitability for use as contingently intended.
(2) Additionally, a clear travelway will be maintained at all times for miners' regular use and for their potential use in transporting anyone injured through this area of the secondary escapeway.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure or protection afforded by the existing standard.
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the application of TÜV SÜD Product Services GmbH (TUVPSG) for expansion of its recognition as a Nationally Recognized Testing Laboratory (NRTL) and presents the Agency's preliminary finding to grant the application.
Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before June 11, 2014.
Submit comments by any of the following methods:
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Information regarding this notice is available from the following sources:
The Occupational Safety and Health Administration is providing notice that TUVPSG is applying for expansion of its current recognition as an NRTL. TUVPSG requests the addition of one recognized testing and certification site to its NRTL scope of recognition.
OSHA recognition of an NRTL signifies that the organization meets the requirements specified in Title 29, Code of Federal Regulations, Section 1910.7 (29 CFR 1910.7). Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition, and is not a delegation or grant of government authority. Recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.
The Agency processes applications by an NRTL for initial recognition, and for an expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the Agency publish two notices in the
Each NRTL's scope of recognition has three elements: (1) The type of products the NRTL may test, with each type specified by its applicable test standard; (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope; and (3) the supplemental program(s) that the NRTL may use. Each of these elements allows the NRTL to rely on other parties to perform activities necessary for product testing and certification.
TUVPSG currently has one facility (site) recognized by OSHA for product testing and certification, with its headquarters located at: TÜV SÜD Product Services GmbH, Ridlerstrasse 65, Munich, Germany D–80339. A complete list of TUVPSG sites recognized by OSHA is available at
TUVPSG submitted an application, dated March 27, 2013 (Exhibit 1), to expand its recognition to include the addition of one recognized testing and certification site located at: TÜV SÜD Product Services GmbH, Daimlerstrasse 11, Garching, Germany D–85748. OSHA staff performed a detailed analysis of the application and other pertinent information. OSHA staff also performed an on-site review of TUVPSG's testing facilities on April 26, 2013, in which the assessors found some nonconformances with the requirements of 29 CFR 1910.7. TUVPSG addressed these issues sufficiently, and OSHA staff preliminarily determined that OSHA should grant the application.
TUVPSG submitted an acceptable application for expansion of its scope of recognition. OSHA's review of the application file and its detailed on-site assessment indicate that TUVPSG can meet the requirements prescribed by 29 CFR 1910.7 for expanding its recognition to include the addition of the one site detailed above for NRTL testing and certification. This preliminary finding does not constitute an interim or temporary approval of TUVPSG's application.
OSHA welcomes public comment as to whether TUVPSG meets the requirements of 29 CFR 1910.7 for expansion of its recognition as an NRTL. Comments should consist of pertinent written documents and exhibits. Commenters needing more time to comment must submit a request in writing, stating the reasons for the request. Commenters must submit the written request for an extension by the due date for comments. OSHA will limit any extension to 10 days unless the requester justifies a longer period. OSHA may deny a request for an extension if it is not adequately justified. To obtain or review copies of the publicly available information in TUVPSG's application, including pertinent documents (e.g., exhibits) and all submitted comments, contact the Docket Office, Room N–2625, Occupational Safety and Health Administration, U.S. Department of Labor, at the above address; these materials also are available online at
OSHA staff will review all comments to the docket submitted in a timely
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 1–2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1910.7.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Office of Workers' Compensation Programs is soliciting comments concerning the proposed collection: Rehabilitation Action Report (OWCP–44). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before July 28, 2014.
Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW., Room S–3201, Washington, DC 20210, telephone (202) 693–0701, fax (202) 693–1447, Email
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* enhance the quality, utility and clarity of the information to be collected; and
* minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that the agency proposes to request use of a voluntary survey of visitors to the National Archives Experience (NAE) in Washington, DC. NARA will use the information to determine how the various components of the NAE affect visitors' level of satisfaction with the NAE and how effectively the venues communicate that records matter. The information will support adjustments in
Written comments must be received on or before July 28, 2014 to be assured of consideration.
Comments should be sent to: Paperwork Reduction Act Comments (ISSD), Room 4400, National Archives and Records Administration, 8601 Adelphi Rd, College Park, MD 20740–6001; or faxed to 301–713–7409; or electronically mailed to
Please direct requests for additional information, copies of the proposed information collection, or copies of the supporting statement to Tamee Fechhelm at telephone number 301–837–1694, or fax number 301–713–7409.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13), NARA invites the general public and other Federal agencies to comment on proposed information collections. The comments and suggestions should address one or more of the following points: (a) Whether the proposed information collection is necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including the use of information technology; and (e) whether small businesses are affected by this collection. NARA will summarize submitted comments and include the summary in NARA's request for Office of Management and Budget (OMB) approval of the information collection. All comments will become a matter of public record. In this notice, NARA is soliciting comments concerning the following information collection:
National Archives and Records Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act (5 U.S.C. app 2) and the second United States Open Government National Action Plan (NAP) released on December 5, 2013, NARA announces the following committee meeting to discuss improvements to the administration of FOIA and its policy matters.
The meeting is on June 24, 2014, from 10 a.m. to 1 p.m.
National Archives and Records Administration; 700 Pennsylvania Avenue NW., Archivist's Board Room, Washington, DC 20408.
This meeting will be open to the public. However, due to space limitations and access procedures, individuals planning to attend must submit their name, email, and telephone number to the Office of Government Information Services (OGIS) no later than Tuesday, June 10, 2014. OGIS will call or email with additional instructions for access to the meeting, and will provide updates on the OGIS blog post.
Christa Lemelin, Designated Federal Officer for this committee, at NARA/OGIS, 800 N. Capital Street NW., Washington, DC 20007; by telephone at (202) 741–5773; or by email at
National Science Foundation.
Notice of permits issued under the Antarctic Conservation of 1978, Public Law 95–541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Li Ling Hamady, ACA Permit Officer, Division of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230. Or by email:
On April 16, 2014 the National Science Foundation published a notice in the
Nuclear Regulatory Commission.
Biweekly notice.
Pursuant to Section 189a. (2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this regular biweekly notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to
This biweekly notice includes all notices of amendments issued, or proposed to be issued from April 31, 2014 to May 14, 2014. The last biweekly notice was published on May 13, 2014.
Comments must be filed by June 26, 2014. A request for a hearing must be filed by July 28, 2014.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
•
•
For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Shirley Rohrer, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–5411, email:
Please refer to Docket ID NRC–2014–0122 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this action by any of the following methods:
•
•
•
Please include Docket ID NRC–2014–0122 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in § 50.92 of Title 10 of the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's 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 ten 10 days prior to 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 the 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. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's 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's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. 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 the NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i)–(iii).
For further details with respect to these license amendment applications, see the application for amendment which is available for public inspection in ADAMS and at the NRC's PDR. For additional direction on accessing information related to this document, see the “Accessing Information and Submitting Comments” section of this document.
The NRC issued a notice of opportunity for comment in the
Criterion 1—The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change allows entry into a mode or other specified condition in the applicability of a TS, while in a TS condition statement and the associated required actions of the TS. Being in a TS condition and the associated required actions is not an initiator of any accident previously evaluated. Therefore, the probability of an accident previously evaluated is not significantly increased. The consequences of an accident while relying on required actions as allowed by proposed LCO 3.0.4, are no different than the consequences of an accident while entering and relying on the required actions while starting in a condition of applicability of the TS. Therefore, the consequences of an accident previously evaluated are not significantly affected by this change. The addition of a requirement to assess and manage the risk introduced by this change will further minimize possible concerns.
Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
Criterion 2—The proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed). Entering into a mode or other specified condition in the applicability of a TS, while in a TS condition statement and the associated required actions of the TS, will not introduce new failure modes or effects and will not, in the absence of other unrelated failures, lead to an accident whose consequences exceed the consequences of accidents previously evaluated. The addition of a requirement to assess and manage the risk introduced by this change will further minimize possible concerns.
Thus, this change does not create the possibility of a new or different kind of accident from an accident previously evaluated.
Criterion 3—The proposed change does not involve a significant reduction in the margin of safety.
The proposed change allows entry into a mode or other specified condition in the applicability of a TS, while in a TS condition
Therefore, this change does not involve a significant reduction in a margin of safety.
Based upon the reasoning presented above and the previous discussion of the amendment request, the requested change does not involve a significant hazards consideration.
The NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed revision to TS 5.5.14 changes the testing period to a permanent 15-year interval for Type A testing (10 CFR Part 50, Appendix J, Option B, ILRT). The current test interval of 10 years would be extended to 15 years from the last Type A test. The proposed extension to Type A testing does not involve a significant increase in the consequences of an accident since research documented in NUREG–1493, “Performance-Based Containment System Leakage Testing Requirements,” September 1995, has found that, generically, very few potential containment leakage paths are not identified by Type B and C tests. NUREG–1493 concluded that reducing the Type A testing frequency to one per twenty years was found to lead to an imperceptible increase in risk. A high degree of assurance is provided through testing and inspection that the containment will not degrade in a manner detectable only by Type A testing. The last Type A test (November 2006) shows leakage to be below acceptance criteria, indicating a very leak tight containment. Inspections required by the ASME Code Section Xl (Subsections IWE and IWL) and Maintenance Rule monitoring (10 CFR 50.65, “Requirements for Monitoring the Effectiveness of Maintenance at Nuclear Power Plants[”]) are performed in order to identify indications of containment degradation that could affect that leak tightness. Types B and C testing required by [technical specifications (TSs)] will identify any containment opening such as valves that would otherwise be detected by the Type A tests. These factors show that a Type A test interval extension will not represent a significant increase in the consequences of an accident.
The proposed amendment involves changes to the [Donald C. Cook Nuclear Plant (CNP)] Units 1 and 2 10 CFR Part 50, Appendix J Testing Program Plan. The proposed amendment does not involve a physical change to the plant or a change in the manner in which the units are operated or controlled. The primary containment function is to provide an essentially leak tight barrier against the uncontrolled release of radioactivity to the environment for postulated accidents. As such, the containment itself and the testing requirements to periodically demonstrate the integrity of the containment exist to ensure the plant's ability to mitigate the consequences of an accident, and do not involve any accident precursors or initiators.
Therefore, the probability of occurrence of an accident previously evaluated is not significantly increased by the proposed amendment.
The proposed amendment adopts the [U.S. Nuclear Regulatory Commission (NRC)]-accepted guidelines of [Nuclear Energy Institute (NEI)] 94–01, Revision 3–A, for development of the CNP performance-based leakage testing program. Implementation of these guidelines continues to provide adequate assurance that during design basis accidents, the primary containment and its components will limit leakage rates to less than the values assumed in the plant safety analyses. The potential consequences of extending the [integrated leak rate testing (ILRT)] interval from 10 years to 15 years have been evaluated by analyzing the resulting changes in risk. The increase in risk in terms of person-rem per year resulting from design basis accidents was estimated to be acceptably small, and the increase in the [large early release frequency (LERF)] resulting from the proposed change was determined to be within the guidelines published in NRC [Regulatory Guide (RG)] 1.174. Additionally, the proposed change maintains defense-in-depth by preserving a reasonable balance among prevention of core damage, prevention of containment failure, and consequence mitigation. [Indiana Michigan Power Company (I&M)] has determined that the increase in [conditional containment failure probability (CCFP)] due to the proposed change would be very small.
Therefore, it is concluded that the proposed amendment does not significantly increase the consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed revision to TS 5.5.14 changes the testing period to a permanent 15-year interval for Type A testing (10 CFR Part 50, Appendix J, Option B, ILRT[)]. The current test interval of 10 years, based on past performance, would be extended to 15 years from the last Type A test (November 2006). The proposed extension to Type A testing does not create the possibility of a new or different type of accident since there are no physical changes being made to the plant and there are no changes to the operation of the plant that could introduce a new failure mode creating an accident or affecting the mitigation of an accident.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed revision to TS 5.5.14 changes the testing period to a permanent 15-year interval for Type A testing (10 CFR Part 50, Appendix J, Option B, ILRT[)]. The current test interval of 10 years, based on past performance, would be extended to 15 years from the last Type A test (November 2006). The proposed extension to Type A testing will not significantly reduce the margin of safety. NUREG–1493, “Performance-Based Containment System Leakage Testing Requirements,” September 1995, generic study of the effects of extending containment leakage testing, found that a 20 year extension to Type A leakage testing resulted in an imperceptible increase in risk to the public. NUREG–1493 found that, generically, the design containment leakage rate contributes about 0.1% to the individual risk and that the decrease in Type A testing frequency would have a minimal
The proposed amendment adopts the NRC-accepted guidelines of NEI 94–01, Revision 3–A, for development of the CNP performance-based leakage testing program, and establishes a 15-year interval for the performance of the primary containment ILRT. The amendment does not alter the manner in which safety limits, limiting safety system setpoints, or limiting conditions for operation are determined. The specific requirements and conditions of the 10 CFR Part 50, Appendix J Testing Program Plan, as defined in the TS, ensure that the degree of primary containment structural integrity and leak-tightness that is considered in the plant safety analyses is maintained. The overall containment leakage rate limit specified by the TS is maintained, and the Type A, B, and C containment leakage tests will continue to be performed at the frequencies established in accordance with the NRC-accepted guidelines of NEI 94–01, Revision 3–A. Containment inspections performed in accordance with other plant programs serve to provide a high degree of assurance that the containment will not degrade in a manner that is detectable only by an ILRT. In addition, CNP has a containment monitoring capability for the detection of gross containment leakage that may develop during power operation. This combination of factors ensures that evidence of containment structural degradation is identified in a timely manner. Furthermore, a risk assessment using the current CNP PRA model concluded that extending the ILRT test interval from 10 years to 15 years results in a very small change to the CNP risk profile.
Therefore, the proposed amendment does not involve a significant reduction in margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed middle annulus fire barrier reconfiguration for the electrical penetrations would not adversely affect any safety-related equipment or function. The modified configuration for the Class 1E electrical containment penetration enclosures will maintain the fire protection function (i.e., barrier) as evaluated in Updated Final Safety Analysis Report (UFSAR), thus, the probability of a Class 1E electrical containment penetration failure is not significantly increased. The safe shutdown fire analysis is not affected, and the fire protection analysis results are not adversely affected. The proposed changes do not involve any accident, initiating event or component failure; thus, the probabilities of previously evaluated accidents are not affected. The maximum allowable leakage rate specified in the Technical Specifications is unchanged, and radiological material release source terms are not affected; thus, the radiological releases in the accident analyses are not affected.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The addition of enclosures constructed of three-hour rated fire barriers to separate the fire zones in the middle annulus for the Class 1E electrical penetration assemblies will maintain the fire protection function as evaluated in the UFSAR. The addition of the fire barriers does not affect the function of the Class 1E electrical containment penetrations or electrical penetration assemblies, and thus, does not introduce a new failure mode. The addition of the fire barriers does not create a new fault or sequence of events that could result in a radioactive material release.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The use of enclosures constructed of three-hour rated fire barriers to separate the fire zones in the middle annulus for the Class 1E electrical penetration assemblies will maintain the fire protection function as evaluated in the UFSAR. The use of the fire barriers does not affect the ability of the Class 1E electrical containment penetrations, electrical penetration assemblies, or the containment to perform their design function. The Class 1E electrical containment penetrations and electrical penetration assemblies within the enclosures continue to comply with the existing design codes and regulatory criteria, and do not affect any safety limit. The use of fire barriers and enclosures to separate the Class 1E electrical penetration assemblies does not adversely affect any margin of safety.
Therefore, the proposed amendment does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination,
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items can be accessed as described in the “Accessing Information and Submitting Comments” section of this document.
The supplemental letters dated January 21, June 11, September 3, October 21, and December 2, 2013, provided additional information that clarified the application, did not expand the scope of the application as noticed, and did not change the staff's proposed no significant hazards consideration determination as published in the
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated April 30, 2014.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated May 5, 2014.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 9, 2014.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 2, 2014.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 1, 2014.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Order; modification.
The U.S. Nuclear Regulatory Commission (NRC) has issued a general license to the Tennesse Valley Authority (TVA), authorizing the operation of the Watts Bar Nuclear Plant Independent Spent Fuel Storage Installation (ISFSI), in accordance with its regulations. The Order is being issued to Exelon because Exelon has identified near term plans to store spent fuel in an ISFSI under the general license provisions of the NRC's regulations.
Please refer to Docket ID NRC–2014–0098 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this action by the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1–F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
L. Raynard Wharton, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–287–9196; email:
Pursuant to § 2.106 of Title 10 of the
The NRC has issued a general license to TVA, authorizing the operation of an ISFSI, in accordance with the Atomic Energy Act of 1954, as amended, and 10 CFR Part 72. This Order is being issued to TVA because TVA has identified near-term plans to store spent fuel in an ISFSI under the general license provisions of 10 CFR Part 72. The Commission's regulations at 10 CFR 72.212(b)(5), 10 CFR 50.54(p)(1), and 10 CFR 73.55(c)(5) require licensees to maintain safeguards contingency plan procedures to respond to threats of radiological sabotage and to protect the spent fuel against the threat of radiological sabotage, in accordance with 10 CFR Part 73, Appendix C. Specific physical security requirements are contained in 10 CFR 73.51 or 73.55, as applicable.
Inasmuch as an insider has an opportunity equal to, or greater than, any other person, to commit radiological sabotage, the Commission has determined these measures to be prudent. Comparable Orders have been issued to all licensees that currently store spent fuel or have identified near-
On September 11, 2001, terrorists simultaneously attacked targets in New York, NY, and near Washington, DC, using large commercial aircraft as weapons. In response to the attacks and intelligence information subsequently obtained, the Commission issued a number of Safeguards and Threat Advisories to its licensees to strengthen licensees' capabilities and readiness to respond to a potential attack on a nuclear facility. On October 16, 2002, the Commission issued Orders to the licensees of operating ISFSIs, to place the actions taken in response to the Advisories into the established regulatory framework and to implement additional security enhancements that emerged from NRC's ongoing comprehensive review. The Commission has also communicated with other Federal, State, and local government agencies and industry representatives to discuss and evaluate the current threat environment in order to assess the adequacy of security measures at licensed facilities. In addition, the Commission has conducted a comprehensive review of its safeguards and security programs and requirements.
As a result of its consideration of current safeguards and security requirements, as well as a review of information provided by the intelligence community, the Commission has determined that certain additional security measures (ASMs) are required to address the current threat environment, in a consistent manner throughout the nuclear ISFSI community. Therefore, the Commission is imposing requirements, as set forth in Attachments 1 and 2 of this Order, on all licensees of these facilities. These requirements, which supplement existing regulatory requirements, will provide the Commission with reasonable assurance that the public health and safety, and the environment, continue to be adequately protected, and that the common defense and security continue to be adequately protected, in the current threat environment. These requirements will remain in effect until the Commission determines otherwise.
The Commission recognizes that licensees may have already initiated many of the measures set forth in Attachments 1 and 2 to this Order, in response to previously issued Advisories, or on their own. It also recognizes that some measures may not be possible or necessary at some sites, or may need to be tailored to accommodate the specific circumstances existing at TVA's facility, to achieve the intended objectives and avoid any unforeseen effect on the safe storage of spent fuel.
Although the ASMs implemented by licensees in response to the Safeguards and Threat Advisories have been sufficient to promote the common defense and security and to provide reasonable assurance of adequate protection of public health and safety, in light of the continuing threat environment, the Commission concludes that these actions should be embodied in an Order, consistent with the established regulatory framework.
To provide assurance that licensees are implementing prudent measures to achieve a consistent level of protection to address the current threat environment, licenses issued pursuant to 10 CFR 72.210 shall be modified to include the requirements identified in Attachments 1 and 2 to this Order. In addition, pursuant to 10 CFR 2.202, I find that, in light of the common defense and security circumstances described above, the public health, safety, and interest require that this Order be effective immediately.
Accordingly, pursuant to Sections 53, 103, 104, 147, 149, 161b, 161i, 161o, 182, and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR Parts 50, 72, and 73,
A. TVA shall comply with the requirements described in Attachments 1 and 2 to this Order, except to the extent that a more stringent requirement is set forth in the Clinton Power Station's physical security plan. TVA shall demonstrate its ability to comply with the requirements in Attachments 1 and 2 to the Order no later than 365 days from the date of this Order or 90 days before the first day that spent fuel is initially placed in the ISFSI, whichever is earlier. TVA must implement these requirements before initially placing spent fuel in the ISFSI. Additionally, TVA must receive written verification from the NRC (Office of Nuclear Material Safety and Safeguards) that it has adequately demonstrated compliance with these requirements before initially placing spent fuel in the ISFSI.
B. 1. TVA shall, within twenty (20) days of the date of this Order, notify the Commission: (1) If it is unable to comply with any of the requirements described in Attachments 1 and 2; (2) if compliance with any of the requirements is unnecessary, in its specific circumstances; or (3) if implementation of any of the requirements would cause TVA to be in violation of the provisions of any Commission regulation or the facility license. The notification shall provide TVA's justification for seeking relief from, or variation of, any specific requirement.
2. If TVA considers that implementation of any of the requirements described in Attachments 1 and 2 to this Order would adversely impact the safe storage of spent fuel, TVA must notify the Commission, within twenty (20) days of this Order, of the adverse safety impact, the basis for its determination that the requirement has an adverse safety impact, and either a proposal for achieving the same objectives specified in Attachments 1 and 2 requirements in question, or a schedule for modifying the facility, to address the adverse safety condition. If neither approach is appropriate, TVA must supplement its response, to Condition B.1 of this Order, to identify the condition as a requirement with which it cannot comply, with attendant justifications, as required under Condition B.1.
C. 1. TVA shall, within twenty (20) days of this Order, submit to the Commission, a schedule for achieving compliance with each requirement described in Attachments 1 and 2.
2. TVA shall report to the Commission when it has achieved full compliance with the requirements described in Attachments 1 and 2.
D. All measures implemented or actions taken in response to this Order shall be maintained until the Commission determines otherwise.
TVA's response to Conditions B.1, B.2, C.1, and C.2, above, shall be submitted in accordance with 10 CFR 72.4. In addition, submittals and documents produced by TVA as a result of this Order, that contain Safeguards Information as defined by 10 CFR 73.22, shall be properly marked and handled, in accordance with 10 CFR 73.21 and 73.22.
The Director, Office of Nuclear Material Safety and Safeguards, may, in writing, relax or rescind any of the above conditions, for good cause.
In accordance with 10 CFR 2.202, TVA 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
The answer may consent to this Order. If the answer includes a request for a hearing, it shall, under oath or affirmation, specifically set forth the matters of fact and law on which TVA relies and the reasons as to why the Order should not have been issued. If a person other than TVA requests a hearing, that person shall set forth with particularity the manner in which his/her interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d).
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-filing rule (72 FR 49139; August 28, 2007). The E-filing process requires participants to submit and serve all adjudicatory documents electronically, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least ten 10 days prior to the filing deadline, the 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. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's 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 the NRC's guidance available on the NRC's 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 located on the NRC's Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary of the Commission, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. 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 hearing is requested by TVA or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), TVA may, in addition to requesting a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the grounds that the Order, including the need for immediate effectiveness, is not based on adequate evidence, but on mere suspicion, unfounded allegations, or error.
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions as specified in Section III shall be final twenty (20) days from the date this Order is published in the
For the Nuclear Regulatory Commission.
1. These additional security measures (ASMs) are established to delineate an independent spent fuel storage installation (ISFSI) licensee's responsibility to enhance security measures related to authorization for unescorted access to the protected area of an ISFSI in response to the current threat environment.
2. Licensees whose ISFSI is collocated with a power reactor may choose to comply with the U.S. Nuclear Regulatory Commission (NRC)-approved reactor access authorization program for the associated reactor as an alternative means to satisfy the provisions of sections B through G below. Otherwise, licensees shall comply with the access authorization and fingerprinting requirements of section B through G of these ASMs.
3. Licensees shall clearly distinguish in their 20-day response which method they intend to use in order to comply with these ASMs.
1. The licensee shall develop, implement and maintain a program, or enhance its existing program, designed to ensure that persons granted unescorted access to the protected area of an ISFSI are trustworthy and reliable and do not constitute an unreasonable risk to the public health and safety for the common defense and security, including a potential to commit radiological sabotage.
a. To establish trustworthiness and reliability, the licensee shall develop, implement, and maintain procedures for conducting and completing background investigations, prior to granting access. The scope of background investigations must address at least the past three years and, as a minimum, must include:
i. Fingerprinting and a Federal Bureau of Investigation (FBI) identification and criminal history records check (CHRC). Where an applicant for unescorted access has been previously fingerprinted with a favorably completed CHRC, (such as a CHRC pursuant to compliance with orders for access to safeguards information) the licensee may accept the results of that CHRC, and need not submit another set of fingerprints, provided the CHRC was completed not more than 3 years from the date of the application for unescorted access.
ii. Verification of employment with each previous employer for the most recent year from the date of application.
iii. Verification of employment with an employer of the longest duration during any calendar month for the remaining next most recent 2 years.
iv. A full credit history review.
v. An interview with not less than two character references, developed by the investigator.
vi. A review of official identification (e.g., driver's license; passport; government identification; state-, province-, or country-of-birth issued certificate of birth) to allow comparison of personal information data provided by the applicant. The licensee shall maintain a photocopy of the identifying document(s) on file, in accordance with “Protection of Information,” in Section G of these ASMs.
vii. Licensees shall confirm eligibility for employment through the regulations of the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, and shall verify and ensure, to the extent possible, the accuracy of the provided social security number and alien registration number, as applicable.
b. The procedures developed or enhanced shall include measures for confirming the term, duration, and character of military service for the past 3 years, and/or academic enrollment and attendance in lieu of employment, for the past 5 years.
c. Licensees need not conduct an independent investigation for individuals employed at a facility who possess active “Q” or “L” clearances or possess another active U.S. Government-granted security clearance (i.e., Top Secret, Secret, or Confidential).
d. A review of the applicant's criminal history, obtained from local criminal justice resources, may be included in addition to the FBI CHRC, and is encouraged if the results of the FBI CHRC, employment check, or credit check disclose derogatory information. The scope of the applicant's local criminal history check shall cover all residences of record for the past 3 years from the date of the application for unescorted access.
2. The licensee shall use any information obtained as part of a CHRC solely for the purpose of determining an individual's suitability for unescorted access to the protected area of an ISFSI.
3. The licensee shall document the basis for its determination for granting or denying access to the protected area of an ISFSI.
4. The licensee shall develop, implement, and maintain procedures for updating background investigations for persons who are applying for reinstatement of unescorted access. Licensees need not conduct an independent reinvestigation for individuals who possess active “Q” or “L” clearances or possess another active U.S. Government granted security clearance, i.e., Top Secret, Secret or Confidential.
5. The licensee shall develop, implement, and maintain procedures for reinvestigations of persons granted unescorted access, at intervals not to exceed 5 years. Licensees need not
6. The licensee shall develop, implement, and maintain procedures designed to ensure that persons who have been denied unescorted access authorization to the facility are not allowed access to the facility, even under escort.
7. The licensee shall develop, implement, and maintain an audit program for licensee and contractor/vendor access authorization programs that evaluate all program elements and include a person knowledgeable and practiced in access authorization program performance objectives to assist in the overall assessment of the site's program effectiveness.
1. In a letter to the NRC, the licensee must nominate an individual who will review the results of the FBI CHRCs to make trustworthiness and reliability determinations for unescorted access to an ISFSI. This individual, referred to as the “reviewing official,” must be someone who requires unescorted access to the ISFSI. The NRC will review the CHRC of any individual nominated to perform the reviewing official function. Based on the results of the CHRC, the NRC staff will determine whether this individual may have access. If the NRC determines that the nominee may not be granted such access, that individual will be prohibited from obtaining access.
2. No person may have access to Safeguards Information (SGI) or unescorted access to any facility subject to NRC regulation, if the NRC has determined, in accordance with its administrative review process based on fingerprinting and an FBI identification and CHRC, that the person may not have access to SGI or unescorted access to any facility subject to NRC regulation.
3. All fingerprints obtained by the licensee under this Order, must be submitted to the Commission for transmission to the FBI.
4. The licensee shall notify each affected individual that the fingerprints will be used to conduct a review of his/her criminal history record and inform the individual of the procedures for revising the record or including an explanation in the record, as specified in the “Right to Correct and Complete Information,” in section F of these ASMs.
5. Fingerprints need not be taken if the employed individual (e.g., a licensee employee, contractor, manufacturer, or supplier) is relieved from the fingerprinting requirement by 10 CFR 73.61, has a favorably adjudicated U.S. Government CHRC within the last 5 years, or has an active Federal security clearance. Written confirmation from the Agency/employer who granted the Federal security clearance or reviewed the CHRC must be provided to the licensee. The licensee must retain this documentation for a period of 3 years from the date the individual no longer requires access to the facility.
1. A licensee shall not base a final determination to deny an individual unescorted access to the protected area of an ISFSI solely on the basis of information received from the FBI involving: an arrest more than 1 year old for which there is no information of the disposition of the case, or an arrest that resulted in dismissal of the charge, or an acquittal.
2. A licensee shall not use information received from a CHRC obtained pursuant to this Order in a manner that would infringe upon the rights of any individual under the First Amendment to the Constitution of the United States, nor shall the licensee use the information in any way that would discriminate among individuals on the basis of race, religion, national origin, sex, or age.
1. For the purpose of complying with this Order, licensees shall, using an appropriate method listed in 10 CFR 73.4, submit to the NRC's Division of Facilities and Security, Mail Stop T–03B46M, one completed, legible standard fingerprint card (Form FD–258, ORIMDNRCOOOZ) or, where practicable, other fingerprint records for each individual seeking unescorted access to an ISFSI, to the Director of the Division of Facilities and Security, marked for the attention of the Division's Criminal History Check Section. Copies of these forms may be obtained by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, by calling 301–415–5877, or by email to
2. The NRC will review submitted fingerprint cards for completeness. Any Form FD–258 fingerprint record containing omissions or evident errors will be returned to the licensee for corrections. The fee for processing fingerprint checks includes one re-submission if the initial submission is returned by the FBI because the fingerprint impressions cannot be classified. The one free re-submission must have the FBI Transaction Control Number reflected on the re-submission. If additional submissions are necessary, they will be treated as initial submittals and will require a second payment of the processing fee.
3. Fees for processing fingerprint checks are due upon application. The licensee shall submit payment of the processing fees electronically. To be able to submit secure electronic payments, licensees will need to establish an account with Pay.Gov (
4. The Commission will forward to the submitting licensee all data received from the FBI as a result of the licensee's application(s) for CHRCs, including the FBI fingerprint record.
1. Prior to any final adverse determination, the licensee shall make available to the individual the contents of any criminal history records obtained from the FBI for the purpose of assuring correct and complete information. Written confirmation by the individual of receipt of this notification must be maintained by the licensee for a period of 1 year from the date of notification.
2. If, after reviewing the record, an individual believes that it is incorrect or incomplete in any respect and wishes to change, correct, or update the alleged deficiency, or to explain any matter in the record, the individual may initiate challenge procedures. These procedures include either direct application by the individual challenging the record to the agency (i.e., law enforcement agency) that contributed the questioned information, or direct challenge as to the accuracy or completeness of any entry on the criminal history record to the Assistant Director, Federal Bureau of Investigation Identification Division, Washington, DC 20537–9700 (as set forth in 28 CFR 16.30 through 16.34). In the latter case, the FBI forwards the challenge to the agency that submitted the data and requests that agency to verify or correct the challenged entry. Upon receipt of an official communication directly from the agency that contributed the original information, the FBI Identification Division makes any changes necessary in accordance with the information supplied by that agency. The licensee must provide at least 10 days for an individual to initiate an action challenging the results of a FBI CHRC after the record is made available for his/her review. The licensee may make a final access determination based on the criminal history record only upon receipt of the FBI's ultimate confirmation or correction of the record. Upon a final adverse determination on access to an ISFSI, the licensee shall provide the individual its documented basis for denial. Access to an ISFSI shall not be granted to an individual during the review process.
1. The licensee shall develop, implement, and maintain a system for personnel information management with appropriate procedures for the protection of personal, confidential information. This system shall be designed to prohibit unauthorized access to sensitive information and to prohibit modification of the information without authorization.
2. Each licensee who obtains a criminal history record on an individual pursuant to this Order shall establish and maintain a system of files and procedures, for protecting the record and the personal information from unauthorized disclosure.
3. The licensee may not disclose the record or personal information collected and maintained to persons other than the subject individual, his/her representative, or to those who have a need to access the information in performing assigned duties in the process of determining suitability for unescorted access to the protected area of an ISFSI. No individual authorized to have access to the information may re-disseminate the information to any other individual who does not have the appropriate need to know.
4. The personal information obtained on an individual from a CHRC may be transferred to another licensee if the gaining licensee receives the individual's written request to re-disseminate the information contained in his/her file, and the gaining licensee verifies information such as the individual's name, date of birth, social security number, sex, and other applicable physical characteristics for identification purposes.
5. The licensee shall make criminal history records, obtained under this section, available for examination by an authorized representative of the NRC to determine compliance with the regulations and laws.
Weeks of May 26, June 2, 9, 16, 23, 30, 2014.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be Web cast live at the Web address—
This meeting will be Web cast live at the Web address—
This meeting will be Web cast live at the Web address—
There are no meetings scheduled for the week of June 9, 2014.
This meeting will be Web cast live at the Web address—
This meeting will be Web cast live at the Web address—
There are no meetings scheduled for the week of June 23, 2014.
There are no meetings scheduled for the week of June 30, 2014.
The schedule for Commission meetings is subject to change on short
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify Kimberly Meyer, NRC Disability Program Manager, at 301–287–0727, or by email at
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301–415–1969), or send an email to
Nuclear Regulatory Commission.
Order; modification.
The U.S. Nuclear Regulatory Commission (NRC) has issued a general license to the Exelon Generation Company, LLC, authorizing the operation of the Clinton Power Station Independent Spent Fuel Storage Installation (ISFSI), in accordance with its regulations. The Order is being issued to Exelon because Exelon has identified near term plans to store spent fuel in an ISFSI under the general license provisions of the NRC's regulations.
Please refer to Docket ID NRC–2014–0123 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this action by the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1–F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
L. Raynard Wharton, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–287–9196; email:
Pursuant to § 2.106 of Title 10 of the
The NRC has issued a general license to Exelon Generation Company, LLC (Exelon), authorizing the operation of an ISFSI, in accordance with the Atomic Energy Act of 1954, as amended, and 10 CFR part 72. This Order is being issued to Exelon because Exelon has identified near-term plans to store spent fuel in an ISFSI under the general license provisions of 10 CFR part 72. The Commission's regulations at 10 CFR 72.212(b)(5), 10 CFR 50.54(p)(1), and 10 CFR 73.55(c)(5) require licensees to maintain safeguards contingency plan procedures to respond to threats of radiological sabotage and to protect the spent fuel against the threat of radiological sabotage, in accordance with 10 CFR part 73, Appendix C. Specific physical security requirements are contained in 10 CFR 73.51 or 73.55, as applicable.
Inasmuch as an insider has an opportunity equal to, or greater than, any other person, to commit radiological sabotage, the Commission has determined these measures to be prudent. Comparable Orders have been issued to all licensees that currently store spent fuel or have identified near-term plans to store spent fuel in an ISFSI.
On September 11, 2001, terrorists simultaneously attacked targets in New York, NY, and near Washington, DC, using large commercial aircraft as weapons. In response to the attacks and intelligence information subsequently obtained, the Commission issued a number of Safeguards and Threat Advisories to its licensees to strengthen licensees' capabilities and readiness to respond to a potential attack on a nuclear facility. On October 16, 2002, the Commission issued Orders to the licensees of operating ISFSIs, to place the actions taken in response to the Advisories into the established regulatory framework and to implement additional security enhancements that emerged from NRC's ongoing comprehensive review. The Commission has also communicated with other Federal, State, and local government agencies and industry representatives to discuss and evaluate the current threat environment in order to assess the adequacy of security measures at licensed facilities. In addition, the Commission has conducted a comprehensive review of its safeguards and security programs and requirements.
As a result of its consideration of current safeguards and security requirements, as well as a review of information provided by the intelligence community, the Commission has determined that certain additional security measures (ASMs) are required to address the current threat environment, in a consistent manner throughout the nuclear ISFSI community. Therefore, the Commission is imposing requirements, as set forth in Attachments 1 and 2 of this Order, on all licensees of these facilities. These
The Commission recognizes that licensees may have already initiated many of the measures set forth in Attachments 1 and 2 to this Order, in response to previously issued Advisories, or on their own. It also recognizes that some measures may not be possible or necessary at some sites, or may need to be tailored to accommodate the specific circumstances existing at Exelon's facility, to achieve the intended objectives and avoid any unforeseen effect on the safe storage of spent fuel.
Although the ASMs implemented by licensees in response to the Safeguards and Threat Advisories have been sufficient to promote the common defense and security and to provide reasonable assurance of adequate protection of public health and safety, in light of the continuing threat environment, the Commission concludes that these actions should be embodied in an Order, consistent with the established regulatory framework.
To provide assurance that licensees are implementing prudent measures to achieve a consistent level of protection to address the current threat environment, licenses issued pursuant to 10 CFR 72.210 shall be modified to include the requirements identified in Attachments 1 and 2 to this Order. In addition, pursuant to 10 CFR 2.202, I find that, in light of the common defense and security circumstances described above, the public health, safety, and interest require that this Order be effective immediately.
Accordingly, pursuant to Sections 53, 103, 104, 147, 149, 161b, 161i, 161o, 182, and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR Parts 50, 72, and 73,
A. Exelon shall comply with the requirements described in Attachments 1 and 2 to this Order, except to the extent that a more stringent requirement is set forth in the Clinton Power Station's physical security plan. Exelon shall demonstrate its ability to comply with the requirements in Attachments 1 and 2 to the Order no later than 365 days from the date of this Order or 90 days before the first day that spent fuel is initially placed in the ISFSI, whichever is earlier. Exelon must implement these requirements before initially placing spent fuel in the ISFSI. Additionally, Exelon must receive written verification from the NRC (Office of Nuclear Material Safety and Safeguards) that it has adequately demonstrated compliance with these requirements before initially placing spent fuel in the ISFSI.
B. 1. Exelon shall, within twenty (20) days of the date of this Order, notify the Commission: (1) if it is unable to comply with any of the requirements described in Attachments 1 and 2; (2) if compliance with any of the requirements is unnecessary, in its specific circumstances; or (3) if implementation of any of the requirements would cause Exelon to be in violation of the provisions of any Commission regulation or the facility license. The notification shall provide Exelon's justification for seeking relief from, or variation of, any specific requirement.
2. If Exelon considers that implementation of any of the requirements described in Attachments 1 and 2 to this Order would adversely impact the safe storage of spent fuel, Exelon must notify the Commission, within twenty (20) days of this Order, of the adverse safety impact, the basis for its determination that the requirement has an adverse safety impact, and either a proposal for achieving the same objectives specified in Attachments 1 and 2 requirements in question, or a schedule for modifying the facility, to address the adverse safety condition. If neither approach is appropriate, Exelon must supplement its response, to Condition B.1 of this Order, to identify the condition as a requirement with which it cannot comply, with attendant justifications, as required under Condition B.1.
C. 1. Exelon shall, within twenty (20) days of this Order, submit to the Commission, a schedule for achieving compliance with each requirement described in Attachments 1 and 2.
2. Exelon shall report to the Commission when it has achieved full compliance with the requirements described in Attachments 1 and 2.
D. All measures implemented or actions taken in response to this Order shall be maintained until the Commission determines otherwise.
Exelon's response to Conditions B.1, B.2, C.1, and C.2, above, shall be submitted in accordance with 10 CFR 72.4. In addition, submittals and documents produced by Exelon as a result of this Order, that contain Safeguards Information as defined by 10 CFR 73.22, shall be properly marked and handled, in accordance with 10 CFR 73.21 and 73.22.
The Director, Office of Nuclear Material Safety and Safeguards, may, in writing, relax or rescind any of the above conditions, for good cause.
In accordance with 10 CFR 2.202, Exelon 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
The answer may consent to this Order. If the answer includes a request for a hearing, it shall, under oath or affirmation, specifically set forth the matters of fact and law on which Exelon relies and the reasons as to why the Order should not have been issued. If a person other than Exelon requests a hearing, that person shall set forth with particularity the manner in which his/her interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d).
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-filing rule (72 FR 49139; August 28, 2007). The E-filing process requires participants to submit and serve all adjudicatory documents electronically, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least ten 10 days prior to the filing deadline, the 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. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's 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 the NRC's guidance available on the NRC's 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 located on the NRC's Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary of the Commission, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. 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 hearing is requested by Exelon or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), Exelon may, in addition to requesting a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the grounds that the Order, including the need for immediate effectiveness, is not based on adequate evidence, but on mere suspicion, unfounded allegations, or error.
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions as specified in Section III shall be final twenty (20) days from the date this Order is published in the
For the Nuclear Regulatory Commission.
1. These additional security measures (ASMs) are established to delineate an independent spent fuel storage installation (ISFSI) licensee's responsibility to enhance security measures related to authorization for unescorted access to the protected area of an ISFSI in response to the current threat environment.
2. Licensees whose ISFSI is collocated with a power reactor may choose to comply with the U.S. Nuclear Regulatory Commission (NRC)-approved reactor access authorization program for the associated reactor as an alternative means to satisfy the provisions of sections B through G below. Otherwise, licensees shall comply with the access authorization and fingerprinting requirements of section B through G of these ASMs.
3. Licensees shall clearly distinguish in their 20-day response which method they intend to use in order to comply with these ASMs.
1. The licensee shall develop, implement and maintain a program, or enhance its existing program, designed to ensure that persons granted unescorted access to the protected area of an ISFSI are trustworthy and reliable and do not constitute an unreasonable risk to the public health and safety for the common defense and security, including a potential to commit radiological sabotage.
a. To establish trustworthiness and reliability, the licensee shall develop, implement, and maintain procedures for conducting and completing background investigations, prior to granting access. The scope of background investigations must address at least the past 3 years and, as a minimum, must include:
i. Fingerprinting and a Federal Bureau of Investigation (FBI) identification and criminal history records check (CHRC). Where an applicant for unescorted access has been previously fingerprinted with a favorably completed CHRC, (such as a CHRC pursuant to compliance with orders for access to safeguards information) the licensee may accept the results of that CHRC, and need not submit another set of fingerprints, provided the CHRC was completed not more than 3 years from the date of the application for unescorted access.
ii. Verification of employment with each previous employer for the most recent year from the date of application.
iii. Verification of employment with an employer of the longest duration during any calendar month for the remaining next most recent 2 years.
iv. A full credit history review.
v. An interview with not less than two character references, developed by the investigator.
vi. A review of official identification (e.g., driver's license; passport; government identification; state-, province-, or country-of-birth issued certificate of birth) to allow comparison of personal information data provided by the applicant. The licensee shall maintain a photocopy of the identifying document(s) on file, in accordance with “Protection of Information,” in Section G of these ASMs.
vii. Licensees shall confirm eligibility for employment through the regulations of the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, and shall verify and ensure, to the extent possible, the accuracy of the provided social security number and alien registration number, as applicable.
b. The procedures developed or enhanced shall include measures for confirming the term, duration, and character of military service for the past 3 years, and/or academic enrollment and attendance in lieu of employment, for the past 5 years.
c. Licensees need not conduct an independent investigation for individuals employed at a facility who possess active “Q” or “L” clearances or possess another active U.S. Government-granted security clearance (i.e., Top Secret, Secret, or Confidential).
d. A review of the applicant's criminal history, obtained from local criminal justice resources, may be included in addition to the FBI CHRC, and is encouraged if the results of the FBI CHRC, employment check, or credit check disclose derogatory information. The scope of the applicant's local criminal history check shall cover all residences of record for the past 3 years from the date of the application for unescorted access.
2. The licensee shall use any information obtained as part of a CHRC solely for the purpose of determining an individual's suitability for unescorted access to the protected area of an ISFSI.
3. The licensee shall document the basis for its determination for granting or denying access to the protected area of an ISFSI.
4. The licensee shall develop, implement, and maintain procedures for updating background investigations for persons who are applying for reinstatement of unescorted access. Licensees need not conduct an independent reinvestigation for individuals who possess active “Q” or “L” clearances or possess another active U.S. Government granted security clearance, i.e., Top Secret, Secret or Confidential.
5. The licensee shall develop, implement, and maintain procedures for reinvestigations of persons granted unescorted access, at intervals not to exceed 5 years. Licensees need not conduct an independent reinvestigation for individuals employed at a facility who possess active “Q” or “L” clearances or possess another active U.S. Government granted security clearance, i.e., Top Secret, Secret or Confidential.
6. The licensee shall develop, implement, and maintain procedures designed to ensure that persons who have been denied unescorted access authorization to the facility are not allowed access to the facility, even under escort.
7. The licensee shall develop, implement, and maintain an audit program for licensee and contractor/vendor access authorization programs that evaluate all program elements and include a person knowledgeable and practiced in access authorization program performance objectives to assist in the overall assessment of the site's program effectiveness.
1. In a letter to the NRC, the licensee must nominate an individual who will review the results of the FBI CHRCs to make trustworthiness and reliability determinations for unescorted access to an ISFSI. This individual, referred to as the “reviewing official,” must be someone who requires unescorted access to the ISFSI. The NRC will review the CHRC of any individual nominated to perform the reviewing official function. Based on the results of the CHRC, the NRC staff will determine whether this individual may have access. If the NRC determines that the nominee may not be granted such access, that individual will be
2. No person may have access to Safeguards Information (SGI) or unescorted access to any facility subject to NRC regulation, if the NRC has determined, in accordance with its administrative review process based on fingerprinting and an FBI identification and CHRC, that the person may not have access to SGI or unescorted access to any facility subject to NRC regulation.
3. All fingerprints obtained by the licensee under this Order, must be submitted to the Commission for transmission to the FBI.
4. The licensee shall notify each affected individual that the fingerprints will be used to conduct a review of his/her criminal history record and inform the individual of the procedures for revising the record or including an explanation in the record, as specified in the “Right to Correct and Complete Information,” in section F of these ASMs.
5. Fingerprints need not be taken if the employed individual (e.g., a licensee employee, contractor, manufacturer, or supplier) is relieved from the fingerprinting requirement by 10 CFR 73.61, has a favorably adjudicated U.S. Government CHRC within the last 5 years, or has an active Federal security clearance. Written confirmation from the Agency/employer who granted the Federal security clearance or reviewed the CHRC must be provided to the licensee. The licensee must retain this documentation for a period of 3 years from the date the individual no longer requires access to the facility.
1. A licensee shall not base a final determination to deny an individual unescorted access to the protected area of an ISFSI solely on the basis of information received from the FBI involving: an arrest more than 1 year old for which there is no information of the disposition of the case, or an arrest that resulted in dismissal of the charge, or an acquittal.
2. A licensee shall not use information received from a CHRC obtained pursuant to this Order in a manner that would infringe upon the rights of any individual under the First Amendment to the Constitution of the United States, nor shall the licensee use the information in any way that would discriminate among individuals on the basis of race, religion, national origin, sex, or age.
1. For the purpose of complying with this Order, licensees shall, using an appropriate method listed in 10 CFR 73.4, submit to the NRC's Division of Facilities and Security, Mail Stop T–03B46M, one completed, legible standard fingerprint card (Form FD–258, ORIMDNRCOOOZ) or, where practicable, other fingerprint records for each individual seeking unescorted access to an ISFSI, to the Director of the Division of Facilities and Security, marked for the attention of the Division's Criminal History Check Section. Copies of these forms may be obtained by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, by calling 301–415–5877, or by email to forms@nrc.gov. Practicable alternative formats are set forth in 10 CFR 73.4. The licensee shall establish procedures to ensure that the quality of the fingerprints taken results in minimizing the rejection rate of fingerprint cards because of illegible or incomplete cards.
2. The NRC will review submitted fingerprint cards for completeness. Any Form FD–258 fingerprint record containing omissions or evident errors will be returned to the licensee for corrections. The fee for processing fingerprint checks includes one re-submission if the initial submission is returned by the FBI because the fingerprint impressions cannot be classified. The one free re-submission must have the FBI Transaction Control Number reflected on the re-submission. If additional submissions are necessary, they will be treated as initial submittals and will require a second payment of the processing fee.
3. Fees for processing fingerprint checks are due upon application. The licensee shall submit payment of the processing fees electronically. To be able to submit secure electronic payments, licensees will need to establish an account with Pay.Gov (
4. The Commission will forward to the submitting licensee all data received from the FBI as a result of the licensee's application(s) for CHRCs, including the FBI fingerprint record.
1. Prior to any final adverse determination, the licensee shall make available to the individual the contents of any criminal history records obtained from the FBI for the purpose of assuring correct and complete information. Written confirmation by the individual of receipt of this notification must be maintained by the licensee for a period of 1 year from the date of notification.
2. If, after reviewing the record, an individual believes that it is incorrect or incomplete in any respect and wishes to change, correct, or update the alleged deficiency, or to explain any matter in the record, the individual may initiate challenge procedures. These procedures include either direct application by the individual challenging the record to the agency (i.e., law enforcement agency) that contributed the questioned information, or direct challenge as to the accuracy or completeness of any entry on the criminal history record to the Assistant Director, Federal Bureau of Investigation Identification Division,
1. The licensee shall develop, implement, and maintain a system for personnel information management with appropriate procedures for the protection of personal, confidential information. This system shall be designed to prohibit unauthorized access to sensitive information and to prohibit modification of the information without authorization.
2. Each licensee who obtains a criminal history record on an individual pursuant to this Order shall establish and maintain a system of files and procedures, for protecting the record and the personal information from unauthorized disclosure.
3. The licensee may not disclose the record or personal information collected and maintained to persons other than the subject individual, his/her representative, or to those who have a need to access the information in performing assigned duties in the process of determining suitability for unescorted access to the protected area of an ISFSI. No individual authorized to have access to the information may re-disseminate the information to any other individual who does not have the appropriate need to know.
4. The personal information obtained on an individual from a CHRC may be transferred to another licensee if the gaining licensee receives the individual's written request to re-disseminate the information contained in his/her file, and the gaining licensee verifies information such as the individual's name, date of birth, social security number, sex, and other applicable physical characteristics for identification purposes.
5. The licensee shall make criminal history records, obtained under this section, available for examination by an authorized representative of the NRC to determine compliance with the regulations and laws.
U.S. Office of Personnel Management (OPM).
Consolidate, update, amend, and terminate system of records.
OPM proposes to consolidate the Security Officer Control Files (Internal-3) with the Adjudication Officer Control Files (Internal-16), and then update and amend the Adjudication Officer Control Files (Internal-16) contained in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
These changes will become effective without further notice forty (40) calendar days from the date of this publication, unless we receive comments that result in a contrary determination.
Send written comments to the Program Manager for the Freedom of Information and Privacy Act office, Federal Investigative Services, U.S. Office of Personnel Management, 1137 Branchton Road, PO Box 618, Boyers, Pennsylvania 16018.
Program Manager, Freedom of Information and Privacy Act office,
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Office of Personnel Management, Federal Investigative Services (OPM–FIS) proposes to consolidate the Security Officer Control Files (Internal-3) with the Adjudication Officer Control Files (Internal-16), and then update and amend the Adjudication Officer Control Files (Internal-16) contained in its inventory of record systems. Since the Security Officer Control Files (Internal-3) will be consolidated with the Adjudication Officer Control Files (Internal-16), we propose to terminate the Security Officer Control Files (Internal-3).
The specific changes to the record system being amended are set forth below. The proposed amendment is within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of new or altered systems reports.
Adjudications Officer Control Files
Delete entry and replace with “U.S. Office of Personnel Management (OPM), Federal Investigative Services (FIS), 131 Rebecca Lane, Slippery Rock, PA 16057”
Add “Facilities, Security, and Contracting (FSC)—Personnel Security; 1137 Branchton Road, Boyers, Pennsylvania 16018.”
Replace “This system contains records on individuals, other than OPM employees: (1) Who work on an OPM-Investigations Service (IS) contract; (2) who need to access IS facilities or use IS equipment; or (3) about whom OPM—IS has provided a suitability or security adjudication advisory opinion at the request of another Federal agency's adjudication or security office.
. . .” with “This system contains records on active, inactive, and pending OPM employees and employees of OPM contractors. This system also contains records on individuals who need to access OPM facilities or use OPM systems.”
Delete entry and replace with: “The records in the system may contain the following: Personally identifiable information such as name, date and place of birth, Social Security Number, citizenship status, grade, organization, employer(s), position sensitivity and public trust classification, initial investigation and reinvestigation history; and access authorization history; the formal request(s) and justification(s) for access authorization processing; security forms, fingerprint cards, and acknowledgments completed by the individual for both the initial investigation and reinvestigation; results of pre-employment checks (if required); Personnel Identification Verification (PIV) sponsorship and tracking information; report of investigation provided by an agency which has previously conducted an investigation
Add “Note: Individuals must request access to background investigations in accordance with the requirements in the governing System of Records Notice. Requests for background investigations maintained in the Adjudications Officer Control Files will be denied.”
Add “13488.”
Delete entry and replace with “OPM Adjudications Officers, Contract Administrators, and Personnel Security staff, or designees, use these records to make suitability, fitness, or security determinations, PIV access determinations, determinations concerning security clearances for access to classified or National Security information, determinations regarding the need and eligibility to use OPM facilities or systems, assign position sensitivity to OPM employees and contractors, and to document an individual's performance and conduct on an OPM contract or employment.”
Delete “Information in these records may be used:” and replace with “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 of information contained in this system may be disclosed outside OPM as a routine use pursuant to 5 U.S.C. 552a(b)(3). The routine uses listed below are specific to this system of records only:”
Re-label the routine uses 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 to a, b, c, d, e, f, g, h, i, j, k respectively.
Add: “l. To appropriate agencies, entities, and persons when (1) OPM suspects or has confirmed that the security or confidentiality of the information in a system of records has been compromised; (2) OPM 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 OPM or another agency or entity) that rely on the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the OPM's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.”
Add: “m. To the State unemployment compensation office upon their request in order to adjudicate a claim for unemployment compensation benefits when the claim for benefits is made as the result of a qualifications, suitability, fitness or security determination.”
Add: “n. To any source from which information is requested in the course of obtaining information to make a suitability, security, or access determination, to the extent necessary to identify the individual, inform the source of the nature and purpose of the investigation, and to identify the type of information requested.”
Add: “o. To a competent medical authority who, under a formal agreement for payment of services with the OPM personnel security element, conducts evaluations under the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, to determine whether an individual has a mental condition of a nature which causes, or may cause, a significant defect in judgment or reliability.”
Replace “OPM stores the file folders in locked, metal file cabinets in a secured room. OPM restricts access to the records on the databases to employees who have the appropriate clearance and need-to-know.” with “OPM stores the hardcopy files in locked, metal file cabinets in a secured room or as digital images on the OPM Local Area Network. All employees who have a need to access the information are required to have the appropriate investigation consistent with the risk and sensitivity designation of that position, and the investigation must be favorably adjudicated or an interim access be granted before they are allowed access to the records.”
Delete entry and replace with: “OPM maintains the entire record three (3) years after the individual's employment or contract status with OPM ends, the need to use OPM systems or facilities has terminated, or the Federal agency notifies OPM that the person whose case OPM adjudicated has separated from that agency. Classified Information Nondisclosure Agreements (Standard Form 312) signed by contractors are maintained for 70 years. Classified Information Nondisclosure Agreements (Standard Form 312) signed by federal employees are filed in the Official Personnel Folder (OPF). Contents of the file folders are destroyed by shredding and recycling and computer records are destroyed by electronic erasure.”
Delete entry and replace with: “Associate Director, Federal Investigative Services, U.S. Office of Personnel Management, PO Box 618, 1137 Branchton Road, Boyers, PA 16018–0618”
Add: “Director, Facilities, Security and Contracting, U.S. Office of Personnel Management, 1900 E. Street NW., Washington, DC 20415.”
The notification procedures and record access procedures section were merged. Replace current notification procedures and record access procedures section with:
“Specific materials in this system have been exempted from Privacy Act provisions at 5 U.S.C. 552a(c)(3) and (d), regarding accounting of disclosures and access to and amendment of records. The section of this notice titled Systems Exempted from Certain Provisions of the Act indicates the kinds of material exempted and the reasons for exempting them from access.
Individuals wishing to ask if this system of records contains information about them or wishing to request access to their record should determine which category they fit into and write to the following addresses:
Federal Investigative Services maintains records for those who (1) work(ed) in OPM's FSC-Personnel Security, (2) who work(ed) on an OPM–FIS contract, or (3) have or had access to OPM–FIS facilities or OPM–FIS systems. This category of individuals should write to: U.S. Office of Personnel Management, Federal Investigative Services, Freedom of Information and Privacy Act office, PO Box 618, 1137 Branchton Road, Boyers, PA 16018–0618.
Facilities, Security and Contracting maintains records for all other OPM employees or OPM contractors. This category of individuals should write to: U.S. Office of Personnel Management, FOIA Requester Service Center, 1900 E. Street NW., Room 5415, Washington, DC 20415–7900.
Individuals must furnish the following information for their record to be located and identified:
a. Full name, former name, and any other names used.
b. Date and place of birth.
c. Social Security Number.
d. Identify the records being requested, to include any available information regarding the type of record involved.
e. The address to which the record information should be sent.
f. Telephone number. (optional)
g. Handwritten Signature.
In addition, the requester must provide an original notarized statement or an unsworn declaration in accordance with 28 U.S.C. 1746, in the following format: I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).
Attorneys or other persons acting on behalf of an individual must provide written authorization from that individual for the representative to act on their behalf. The written authorization must include an original notarized statement or an unsworn declaration in accordance with 28 U.S.C. 1746, in the following format: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”
Individuals requesting access must also comply with OPM's Privacy Act regulations regarding verification of identity and access to records (5 CFR part 297).”
Delete “Specific materials in this system have been exempted from Privacy Act provisions at 5 U.S.C. 552a(d) regarding access to and amendment of records. The section of this notice titled “System Exemptions” indicates the kinds of material exempted and the reasons for exempting them from amendment. Individuals wishing to request amendment of their non-exempt records should write to the Federal Investigations Processing Center and furnish the following information for their record to be located:” and replace with “Individuals wishing to request amendment of their non-exempt records should determine the category they fit into as outlined above in Notification and Record Access Procedures and contact the appropriate office in writing. Individuals must furnish the following information for their record to be located and identified:”
Add: “In addition, the requester must provide an original notarized statement or an unsworn declaration in accordance with 28 U.S.C. 1746, in the following format: I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”
Add: “Attorneys or other persons acting on behalf of an individual must provide written authorization from that individual for the representative to act on their behalf. The written authorization must include an original notarized statement or an unsworn declaration in accordance with 28 U.S.C. 1746, in the following format: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”
Replace “OPM–IS” with “OPM–FIS” in item 2 and item 3.
Delete item 4 and replace with “4. Employment information maintained by OPM's Director of Personnel or regional personnel offices.”
Add: “6. Federal agencies.”
Add: “7. By personal investigation or written inquiry from sources such as employers, educational institutions, references, neighbors, associates, police departments, courts, credit bureaus, medical records, probation officials, prison officials, newspapers, magazines, periodicals, and other publications.”
Replace “. . .in 5 U.S.C. 552a(k)(1), (2), (3), (4), (5), (6) or (7) is exempt . . .” with “. . . in 5 U.S.C. 552a(k)(1), (2), (5), or (6) is exempt. . .”
Delete items 3, 4, 7.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on May 29, 2014 at 3:00 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matter at the Closed Meeting.
Commissioner Stein, as duty officer, voted to consider the items listed for the Closed Meeting in closed session.
The subject matter of the Closed Meeting will be: institution and settlement of injunctive actions; institution and settlement of administrative proceedings; and other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551–5400.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 975NY to provide for new procedures to account for erroneous trades occurring from disruptions and/or malfunctions of Exchange systems. 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 Rule 975NY to provide for new procedures to account for erroneous trades occurring from disruptions and/or malfunctions of Exchange systems. This filing is based on the rules of the Chicago Board Options Exchange, Incorporated (“CBOE”).
Proposed new Rule 975NY(a)(9) would provide that any electronic or open outcry transactions that arise out of a “verifiable systems disruption or malfunction” in the use or operation of an Exchange automated quotation, dissemination, execution, or communication system may either be nullified or adjusted by Trading Officials.
The proposed rule change would provide the Exchange with the same authority to nullify or adjust trades in the event of a “verifiable disruption or malfunction” in the use of operation of its systems as other exchanges have. The Exchange believes that it is appropriate to provide the flexibility and authority provided for in proposed Rule 975NY(a)(9) so as not to limit the Exchange's ability to plan for and respond to unforeseen systems problems or malfunctions. For this reason, the Exchange believes that, in the interest of maintaining a fair and orderly market and for the protection of investors, authority to nullify trades in these circumstances, consistent with the authority on other exchanges, is warranted.
The Exchange notes that the options markets are currently in the process of identifying how to harmonize their respective obvious and catastrophic error rules, including a rule specifying the circumstances in which an options exchange may nullify trades because of a systems problem or malfunction. Because it is uncertain when this harmonized rule will be filed with and approved by the Commission, the Exchange believes it is critical to its current ability to maintain a fair and orderly market and to protect investors to propose an amendment to its current Obvious Error and Catastrophic Errors Rule 975NY. Today's proposed rule would be superseded by a future proposed harmonized rule.
The Exchange further proposes that, similar to CBOE Rule 6.25(b)(3), the Exchange's ability to act on its own motion pursuant to proposed Rule 975NY(a)(9) would be subject to Rule 975NY(b)(3) procedures for reviewing trades on Exchange motion. Accordingly, the Exchange proposes to amend Rule 975NY(b)(3) to provide that the Exchange may act on its own motion for any transaction subject to paragraphs (a)(3)–(a)(9) of Rule 975NY.
The Exchange also proposes technical changes that would add paragraphs (a)(7) and (a)(8) to Rule 975NY(b)(3), which is consistent with CBOE rules, and which cross references were previously inadvertently excluded from Rule 975NY(b)(3). The Exchange also proposes to amend Rule 975NY(a) to be more similar to the corresponding provision in CBOE's rules by deleting the specific paragraph references and instead refer generally to the conditions specified in paragraph (a) of Rule 975NY.
The proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market and national market system and promote a fair and orderly market because it would provide authority for the Exchange to nullify or adjust trades that may have resulted from a verifiable systems disruption or malfunction. The Exchange believes that it is appropriate to provide the flexibility and authority provided for in proposed Rule 975NY(a)(9) so as not to limit the Exchange's ability to plan for and respond to unforeseen systems problems or malfunctions that may result in harm to the public. The Exchange notes that the proposed rule change is based on CBOE rules and is substantially similar to rules of other markets.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange believes that the proposed rule change is pro-competitive because it will align the Exchange's rules with the rules of other markets, including CBOE, NYSE Arca, and Phlx. By adopting proposed Rule 975NY(a)(9), the Exchange will be in a position to treat transactions that are a result of a verifiable systems issue or malfunction in a manner similar to other exchanges.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
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 Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 12, 2010, the Financial Industry Regulatory Authority (“FINRA”) filed a proposal pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Under the amended original proposal, an arbitrator would have been permitted to make a mid-case referral if he or she became aware of any matter or conduct that the arbitrator had reason to believe posed a serious ongoing or imminent threat that was likely to harm investors. A mid-case referral could not have been based solely on allegations in the pleadings. The amended original proposal also would have instructed the arbitrator to wait until the arbitration concluded to make a referral if investor protection would not have been materially compromised by the delay. Further, if an arbitrator made a mid-case referral, the Director of Arbitration (“Director”) would have disclosed the act of making the referral to the parties, and a party would have been permitted to request recusal of the referring arbitrator. The amended original proposal would have required either the President of FINRA Dispute Resolution (“President”) or the Director to evaluate the referral and determine whether to forward it to other divisions of FINRA for further review. Finally, the amended original proposal would have retained the provision in Rule 12104(b) of the Customer Code and Rule 13104(b) of the Industry Code that permits an arbitrator to make a post-case referral. The Commission received five comment letters in response to the amended original proposal.
On January 29, 2014, FINRA withdrew the amended original proposal
The Commission is publishing this notice and order to solicit comments on Partial Amendment No. 1 from interested persons and to institute proceedings pursuant to Section 19(b)(2)(B) of the Act
Institution of proceedings does not indicate that the Commission has reached any conclusions with respect to the proposed rule change, nor does it mean that the Commission will ultimately disapprove the proposed rule change. Rather, as discussed below, the Commission seeks additional input from interested parties on the proposed rule change, as modified by Partial Amendment No. 1, and issues presented by the proposal.
As further described in the Notice of Filing, FINRA is proposing to amend Rule 12104 of the Customer Code and Rule 13104 of the Industry Code to broaden arbitrators' authority to make referrals during an arbitration proceeding. Under the current proposal, an arbitrator would be permitted to make a mid-case referral if the arbitrator becomes aware of any matter or conduct that the arbitrator has reason to believe poses a serious ongoing or imminent threat that is likely to harm investors. A mid-case referral could not be based solely on allegations in the pleadings. The proposed rule change would further provide that when a case is nearing completion, the arbitrator should wait until the case concludes to make a referral if, in the arbitrator's judgment, investor protection would not be materially compromised by the delay. If an arbitrator makes a mid-case referral, the Director would disclose the act of making the referral to the parties, and a party would be permitted to request recusal of the referring arbitrator. The proposal would require either the President or the Director to evaluate the referral and determine whether to forward it to other divisions of FINRA for further review. Finally, the proposal would retain the provision in Rule 12104(b) of the Customer Code and Rule 13104(b) of the Industry Code that permits an arbitrator to make a post-case referral.
The Commission received ten comment letters
On May 19, 2014, FINRA proposed in Partial Amendment No. 1 that a party that wishes to request recusal of an arbitrator following a mid-case referral must do so within three days of being notified of the referral. FINRA believes that Partial Amendment No. 1 would prevent a party from receiving notice of the mid-case referral and reserving the right to strategically request recusal when it would best benefit that party.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act to determine whether to approve or disapprove the proposed rule change.
Pursuant to Section 19(b)(2)(B) of the Act,
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect any issues raised by the proposed rule change, as modified by Partial Amendment No. 1. In particular, the Commission invites the written views of interested persons concerning (1) any issues related to the changes made to the proposal by Partial Amendment No. 1 and (2) whether the proposed rule change, as modified by Partial Amendment No. 1, is consistent with Section 15A(b)(6) of the Act. The Commission also requests comment on the issues raised by FINRA's response to comments.
In addition, the Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to questions raised by commenters about the potentially adverse consequences of the proposal for retail investors whose cases may be delayed or disrupted by a mid-case referral. These questions include:
• Would the proposal adversely affect retail investors? If so, how?
• Should FINRA propose a different standard for referral? If so, what standard(s) would be appropriate?
• Does Partial Amendment No. 1 ameliorate commenters' concerns that notifying parties of a mid-case referral could lead to adverse consequences to the claimant, including requests for recusal and challenges to an award? If not, should FINRA amend the proposal to preclude the Director, or anyone else, from notifying the parties of a referral?
Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b–4(g) promulgated under the Act, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments by June 26, 2014 concerning whether the proposed rule change, as modified by Partial Amendment No. 1, should be approved or disapproved. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by July 11, 2014. 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 Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–FINRA–2014–005 and should be submitted on or before June 26, 2014. If comments are received, any rebuttal comments should be submitted by July 11, 2014.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Commentary .02 to Exchange Rule 6.72 in order to extend the Penny Pilot in options classes in certain issues (“Pilot Program”) previously approved by the Securities and Exchange Commission (“Commission”) through December 31, 2014. 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 hereby proposes to amend Commentary .02 to Exchange Rule 6.72 to extend the time period of the Pilot Program,
This filing does not propose any substantive changes to the Pilot Program: all classes currently participating will remain the same and all minimum increments will remain unchanged. The Exchange believes the benefits to public customers and other market participants who will be able to express their true prices to buy and sell options have been demonstrated to outweigh the increase in quote traffic.
The proposed rule change is consistent with Section 6(b)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that, by extending the expiration of the Pilot Program, the proposed rule change will allow for further analysis of the Pilot Program and a determination of how the Program should be structured in the future. In doing so, the proposed rule change will also serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. The Pilot Program is an industry wide initiative supported by all other option exchanges. The Exchange believes that extending the Pilot Program will allow for continued competition between Exchange market participants trading similar products as their counterparts on other exchanges, while at the same time allowing the Exchange to continue to compete for order flow with other exchanges in option issues trading as part of the Pilot Program.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative prior to 30 days after the date of the filing.
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 Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to adopt Rule 24.22 (Allocation of Trading Spaces) related to the allocation of newly-created trading spaces on the Exchange floor to Trading Permit Holders (“TPHs”). The text of the proposed rule change is provided below.
(a)—(m) No Change.
[ . . .
.01 In connection with an expansion of the back area of the SPX trading crowd, CBOE may allocate the available trading spaces using a random lottery process or an order in time process. Under either of the processes that it chooses to utilize, CBOE would announce a deadline by which an approved individual CBOE Trading Permit Holder who would like to use the trading space can submit an indication of interest for one of the available trading spaces in the back area of the SPX trading crowd. Only those individuals who are approved Trading Permit Holders of CBOE would be eligible to submit an indication of interest, and the individual who would be using the trading space must be an effective Trading Permit Holder under CBOE Rule 3.10 (i.e., must have a Trading Permit) at the time of the random lottery process or the order in time process. After the deadline for indications of interest has passed, the available trading spaces in the back area of the SPX trading crowd would be allocated through a random lottery process or an order in time process.]
The text of the proposed rule change is also available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to allow the Exchange to utilize its current process and procedures for allocating new trading spaces in the back area of the SPX trading crowd to allocate new trading spaces that may be created in other areas of the SPX trading crowd and other trading crowds on the floor of the Exchange. In addition, the Exchange proposes to adopt a rule, which will allow the Exchange to determine the dimensions and parameters of each trading space in a particular trading crowd.
Historically, an order in time process has generally been applied to determine which individuals can use new trading spaces in a crowd located on the CBOE trading floor. In 2008, however, in connection with an expansion of the back area of the SPX trading crowd, the Exchange adopted Interpretation and Policy .01 to Rule 24.21, which provided that the Exchange may allocate newly-created trading spaces in the back area of the SPX trading crowd by either a random lottery process or an order in time process.
The Exchange would like the ability to utilize the process and procedures set forth in Interpretation and Policy .01 to Rule 24.21 to allocate other trading spaces that may be created on the Exchange floor due to expansion or other physical modifications to areas on the trading floor besides the “back area of the SPX trading crowd.” From time to time, the Exchange may expand, renovate, or make physical changes to trading crowd areas on the Exchange floor besides the area in the back of the SPX trading crowd. Although the Exchange's current rules provide a process and procedures for allocating newly-created trading spaces on the floor of the Exchange, they apply only
Given the Exchange's desire to extend the procedures set forth in Interpretation and Policy .01 to Rule 24.21 beyond its current scope to apply to trading crowd areas across the floor of the Exchange, the Exchange believes that the process and procedures should be moved to another rule as opposed to an interpretation and policy under Rule 24.21. The Exchange adopted Interpretation and Policy .01 to Rule 24.21 in connection with expansion of the back area of the SPX trading area. Thus, the Exchange placed the trading space allocation procedure under Rule 24.21 (Index Crowd Space Dispute Resolution Procedures). The Exchange believes that the broader policy should be placed under a separate rule and thus, proposes to adopt new Rule 24.22 (Allocation of Trading Spaces) for this procedure.
The Exchange also proposes to adopt Rule 24.22(b), which will allow the Exchange to determine the specific dimensions and parameters of each “trading space” in a particular trading crowd when the Exchange deems necessary. Certain trading crowds on the floor of the Exchange continue to be densely populated by many TPHs. The proposed rule codifies the Exchange's policies with respect to TPHs' use of the Exchange's facilities. Specifically, the rule sets forth the process that the Exchange may use to allocate trading spaces to TPHs in a fair, equal and non-discriminatory manner. The Exchange believes that Rule 24.22(b) will contribute to the continued maintenance of fair and orderly markets.
The proposed rule provides that the Exchange may, in its discretion, determine the dimensions and parameters of each trading space in a trading crowd, provided that each TPH performing a specific trading function (i.e., Designated Primary Market-Maker (“DPM”), Lead Market-Maker (“LMM”), Market-Maker, or Floor Broker) in a trading crowd be allocated the same amount of space as each other Trading Permit Holder performing the same respective trading function in that trading crowd. The proposed rule allows the Exchange to apportion different amounts of space to TPHs in a trading crowd based on their differing functions because TPHs within a trading crowd may have different technological necessities that may require more or less space. For example, a Floor Broker may have a need for a PAR workstation or order handling device. The proposed rule allows the Exchange the flexibility to apportion trading space based on the functions of the various TPHs in a trading crowd provided that all TPHs performing the same trading function in the crowd are allocated an equal amount of space in the particular trading crowd. Because not all trading crowds are densely populated, such rules are not necessary in all trading crowds. Accordingly, the Exchange proposes flexibility in the rule so that the Exchange can employ these rules when and where it determines they are needed.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b).
The Exchange believes that these procedures will contribute to the maintenance of fair and orderly markets by codifying a fair, objective, and nondiscriminatory procedure for allocating trading spaces that may be created in densely populated trading crowds on the floor of the Exchange. The Exchange believes that the proposed rule change is nondiscriminatory because any newly-created trading spaces on the floor of the Exchange that would be allocated under this process would be made equally available to all TPHs who wish to participate in the allocation process. In addition, the Exchange believes that adopting rules to ensure that all TPHs within densely populated trading crowds are afforded specific, defined, and equal trading spaces in terms of dimensions and parameters will protect TPHs against unfair discrimination on the trading floor of the Exchange.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the proposed rule will contribute to more robust and competitive markets by providing TPHs with trading spaces that maximize sightlines between potential counterparties and allow the Exchange to utilize its resources in an efficient manner to promote trading. The rule will also encourage greater participation and competition in the markets by allowing the Exchange to allocate newly-created trading spaces on the Exchange floor in an orderly fashion to TPHs who want to occupy those spaces. Furthermore, the proposed rule will remove burdens on competition by ensuring that all TPHs performing the same trading functions in densely populated trading crowds are afforded trading spaces of equal size and dimensions.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an Email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–CBOE–2014–042. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–CBOE–2014–042 and should be submitted on or before June 17, 2014.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Chicago Board Options Exchange, Incorporated (the “Exchange” or “CBOE”) proposes to amend its rules related to regulatory cooperation. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 15.9(a) to make explicit the Exchange's authority to enter into information sharing agreements with the Public Company Accounting Oversight Board (the “PCAOB”).
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”)
The Exchange has entered into an information sharing agreement with the PCAOB. The Exchange intends to share, for example, Trading Permit Holder FOCUS Report
As discussed above, Congress has expressly granted the PCAOB authority to inspect broker-dealers and the Commission has approved the PCAOB's interim rule to implement that authority. The Exchange believes sharing information with the PCAOB, due to its audit oversight role over broker-dealers, including CBOE Trading Permit Holders, will assist the PCAOB in performing the oversight intended by Congress, under terms approved by the Commission.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The proposed rule change is in the public's interest as it will explicitly authorize the Exchange to enter into an information sharing agreement with the PCAOB, thereby facilitating the sharing of information with the PCAOB. The ability to obtain information from the Exchange will better enable the PCAOB to perform its functions related to broker-dealer audit oversight. Better oversight of registered broker-dealer audits is in the public's interest and will serve to prevent fraudulent and manipulative acts and practices. Additionally, one of the essential purposes of the proposed rule change is to foster cooperation and coordination with persons engaged in regulating and processing information related to transactions in securities.
The Exchange also believes the proposed rule change is consistent with Section 6(b)(1) of the Act,
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues but rather is designed to facilitate the sharing of information between PCAOB and the Exchange to better enable each to fulfill its respective regulatory duties and responsibilities.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing rule does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing of the proposed rule change or such shorter time as designated by the Commission,
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 Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–CBOE–2014–044. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Commentary .02 to NYSE Amex Options Rule 960NY in order to extend the Penny Pilot in options classes in certain issues (“Pilot Program”) previously approved by the Securities and Exchange Commission (“Commission”) through December 31, 2014. 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 hereby proposes to amend Commentary .02 to Exchange Rule 960NY to extend the time period of the Pilot Program,
This filing does not propose any substantive changes to the Pilot Program: all classes currently participating will remain the same and all minimum increments will remain unchanged. The Exchange believes the benefits to public customers and other market participants who will be able to express their true prices to buy and sell options have been demonstrated to outweigh the increase in quote traffic.
The proposed rule change is consistent with Section 6(b)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that, by extending the expiration of the Pilot Program, the proposed rule change will allow for further analysis of the Pilot Program and a determination of how the Program should be structured in the future. In doing so, the proposed rule change will also serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. The Pilot Program is an industry wide initiative supported by all other option exchanges. The Exchange believes that extending the Pilot Program will allow for continued competition between NYSE Amex Options market participants trading similar products as their counterparts on other exchanges, while at the same time allowing the Exchange to continue to compete for order flow with other exchanges in option issues trading as part of the Pilot Program.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative prior to 30 days after the date of the filing.
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 Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 31, 2014, the Financial Industry Regulatory Authority, Inc. (“FINRA”) (f/k/a National Association of Securities Dealers, Inc. (“NASD”)) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Institution of proceedings does not indicate that the Commission has reached any conclusions with respect to the proposed rule change, nor does it mean that the Commission will ultimately disapprove the proposed rule change. Rather, as discussed below, the Commission seeks additional input from interested parties on the issues presented by the proposal.
NASD Rule 2340 generally requires that general securities members
The net investment methodology would reflect the “net investment” disclosed in the issuer's most recent periodic or current report. The “net investment” would be based on the “amount available for investment” percentage in the “Estimated Use of Proceeds” section of the offering prospectus or, where “amount available for investment” is not provided, another equivalent disclosure.
The independent valuation methodology would consist of the most recent valuation disclosed in the issuer's periodic or current reports. It would also require that a third-party valuation expert or experts determine, or provide material assistance in the process of determining, the valuation.
FINRA Rule 2310 generally provides that no member is permitted to participate in a public offering of DPP or REIT securities unless the general partner or sponsor will disclose in each annual report distributed to investors
As further described in the Notice of Filing, FINRA proposes to amend FINRA Rule 2310 to provide that a member may not participate in a public offering of a DPP or REIT security unless: (A) A per share estimated value is calculated on a periodic basis in accordance with a methodology disclosed in the prospectus, or (B) the general partner or sponsor has agreed to disclose in the first periodic report filed pursuant to Section 13(a) or 15(d) of the Act after the second anniversary of breaking escrow: (1) A per share estimated value of the DPP or REIT calculated by, or with the material assistance of, a third-party valuation expert; (2) an explanation of the method by which the per share estimated value was developed; (3) the date of the valuation; and (4) the identity of the third-party valuation expert used. In addition, the general partner or sponsor of the DPP or REIT must have agreed to ensure that the valuation is conducted at least once every two years; is derived from a methodology that conforms to standard industry practice; and is accompanied by a written opinion to the general partner or sponsor of the DPP or REIT that explains the scope of the review, the methodology used to develop the valuation, and the basis for the per share estimated value.
While the commenters to the Notice of Filing generally expressed support for the goals of the proposed rule change, they raised a number of concerns regarding various aspects of the proposal. For instance, several commenters opposed the deduction of offering and organizational costs from the share price under the net investment methodology, citing difficulties in accurately determining those expenses.
Many commenters opposed the elimination of any requirement to include a per share valuation of unlisted DPP or REIT securities in customer account statements. Commenters stated that FINRA, in its proposal, put forth two valuation methodologies that it deems presumptively reliable, and allowing an unlisted DPP or REIT security to nevertheless be shown as “not priced” in customer account statements would deprive investors of useful information and be viewed as a retreat from a policy of transparency.
In addition, some commenters raised concerns about the proposed rule change's anticipated implementation period.
Commenters further questioned, among other things, the timing of the initiation of valuations for unlisted DPP and REIT securities under FINRA Rule 2310;
On May 16, 2014, FINRA noted that it is still considering the points raised by commenters and anticipates filing an official response in the near future.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act to determine whether the proposed rule change should be approved or disapproved.
Pursuant to Section 19(b)(2)(B) of the Act,
The Commission believes FINRA's proposed rule change raises questions as to whether it is consistent with the requirements of Section 15A(b)(6) and 15A(b)(9) of the Act.
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues raised by the proposed rule change. In particular, the Commission invites the written views of interested persons concerning whether the proposed rule change is inconsistent with Sections 15A(b)(6) and 15A(b)(9), or any other provision, of the Act, or the rules and regulations 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.
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–FINRA–2014–006 and should be submitted on or before July 11, 2014. If comments are received, any rebuttal comments should be submitted by July 11, 2014.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend FINRA Rule 7410 to permit members to route orders to two Reporting Members for a defined period of time provided certain conditions are met without losing the exception from the definition of “Reporting Member” in the Order Audit Trail System (“OATS”) rules.
Below is the text of the proposed rule change. Proposed new language is in italics; proposed deletions are in brackets.
(a) through (n) No Change.
(o) “Reporting Member” shall mean a member that receives or originates an order and has an obligation to record and report information under Rules 7440 and 7450.
(1) A member shall not be considered a Reporting Member in connection with an order, if the following conditions are met:
(A) the member engages in a non-discretionary order routing process, pursuant to which it immediately routes, by electronic or other means, all of its orders to
(B) the member does not direct and does not maintain control over subsequent routing or execution by the receiving Reporting Member
(C) the receiving Reporting Member
(D) the member has a written agreement with the receiving Reporting Member
(2) No Change.
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA Rules 7410 through 7470 (the “OATS Rules”) impose obligations on FINRA members to record in electronic form and report to FINRA on a daily basis certain information with respect to orders originated, received, transmitted, modified, canceled, or executed by members relating to OTC equity securities and NMS stocks. OATS captures this order information and integrates it with quote and transaction information to create a time-sequenced record of orders, quotes, and transactions. This information is then used by FINRA staff to conduct surveillance and investigations of member firms for potential violations of FINRA rules and federal securities laws.
In general, the OATS Rules apply to any FINRA member that is a “Reporting Member,” which is defined in Rule 7410 as “a member that receives or originates an order and has an obligation to record and report information under Rules 7440 and 7450.”
• The member engages in a non-discretionary order routing process, pursuant to which it immediately routes, by electronic or other means, all of its orders to a single receiving Reporting Member;
• The member does not direct and does not maintain control over subsequent routing or execution by the receiving Reporting Member;
• The receiving Reporting Member records and reports all information required under Rules 7440 and 7450 with respect to the order; and
• The member has a written agreement with the receiving Reporting Member specifying the respective functions and responsibilities of each party to effect full compliance with the requirements of Rules 7440 and 7450.
One of the current criteria that must be met for a member to take advantage of the exception from the definition of Reporting Member is that the member immediately route orders on a non-discretionary basis to a single receiving Reporting Member. Thus, members will not be excepted from the definition if they route orders to more than one receiving firm. This exception is generally, though not exclusively, relied upon by introducing firms that route all of their orders to a single clearing firm that reports the introducing firms' orders on their behalf. As FINRA noted when it adopted the exception, it is intended largely to avoid duplicative reporting of the same order information by two different firms and to avoid imposing unnecessary compliance costs and burdens on firms that route all of their orders immediately to another single firm that reports the information to OATS.
The proposed rule change would permit a member to continue to rely on the exception from the definition of Reporting Member if, for a limited time, the member routes orders to two different Reporting Members, provided certain criteria are met. Although not limited to this purpose, the proposed rule change is intended to accommodate introducing firms that transition to a different clearing firm over time and, during the transition, route their orders to two different clearing firms, both of which report the introducing firm's order information to OATS during the transition period. Without the proposed rule change, introducing firms would be subject to the OATS Rules during the transition period, which is generally less than one year. FINRA believes it is unnecessarily burdensome to require introducing firms to report order information directly to OATS under these circumstances when the transition period is less than one year. FINRA notes that the concern over duplicative reporting is similarly present in the case where all of a firm's order information is being reported by another Reporting Member even if, for a limited period of time, order information is reported by two separate Reporting Members. Further, FINRA believes it would be burdensome for a member that meets the exception to Reporting Member to have to commence OATS reporting for a limited period, to only later meet the terms of the exception again.
Under the proposed rule change, a member would remain excepted from the definition of Reporting Member during a transition period to a new clearing firm when it routes to both its former and new clearing firm provided certain additional criteria are met in addition to the existing criteria necessary to meet the exception. Specifically, under the terms of the proposed rule change: (i) All orders must be routed by the member to each receiving Reporting Member on a pre-determined schedule approved by FINRA; and (ii) the orders may only be routed to two receiving Reporting Members pursuant to the schedule for a time period not to exceed one year. In addition to these additional criteria, members must continue to meet the existing criteria in the rule.
Under the proposed rule change, FINRA must be notified in advance and must approve the schedule for the transition to a new clearing firm.
FINRA has filed the proposed rule change for immediate effectiveness and has requested that the SEC waive the requirement that the proposed rule change not become operative for 30 days after the date of the filing so FINRA can implement the proposed rule change immediately.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. FINRA believes the proposed rule change will reduce the potential burden of reporting to OATS for a limited time for a member that does not meet the current exception to Reporting Member only to later meet the terms of the exception again. FINRA believes that, in the limited circumstances in which the proposed rule change will apply, members should not be compelled to undertake the time and costs associated with OATS reporting when FINRA is able to ensure the accuracy and completeness of OATS information when the terms in the proposed rule change are met.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
FINRA has asked the Commission to waive the 30-day operative delay so that the proposal may become operative upon filing. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest as it will allow members that currently rely on the exception from being considered a Reporting Member to continue to do so for a limited period of time while they change clearing firms, provided the criteria in the proposed rule change are met, thus eliminating the burden of reporting directly to OATS for such members and maintaining the integrity of the OATS data. For this reason, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–FINRA–2014–024. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of International Development and Environmental Holdings (“IDEH”) because it has not filed a periodic report since it filed its Form 10–Q for the period ending June 30, 2011, filed on August 22, 2011.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of IDEH. Therefore, it is ordered, pursuant to Section 12(k) of the Exchange Act, that trading in the securities of IDEH is suspended for the period from 9:30 a.m. E.D.T. on May 22, 2014, through 11:59 p.m. E.D.T. on June 5, 2014.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Angel Acquisition, Corp. n/k/a BioGeron, Inc. (“BioGeron”) because it has not filed a periodic report since it filed its Form 10–Q for the period ending September 30, 2011, filed on November 14, 2011.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of BioGeron. Therefore, it is ordered, pursuant to Section 12(k) of the Exchange Act, that trading in the securities of BioGeron is suspended for the period from 9:30 a.m. E.D.T. on May 22, 2014, through 11:59 p.m. E.D.T. on June 5, 2014.
By the Commission.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of First Power & Light, Inc. n/k/a Volt Solar Systems, Inc. (“VOLT”) because of questions concerning the adequacy and accuracy of publicly available information about VOLT, including, among other things, its corporate transactions, the control of the company, and trading in its securities.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
By the Commission.
60-day notice and request for comments.
The Small Business Administration (SBA) intends to request extension, without change, of the currently approved information collection described below from the Office of Management and Budget (OMB). The Paperwork Reduction Act (PRA) of 1995, 44 U.S.C Chapter 35 requires federal agencies to publish a notice in the
Submit comments on or before July 28, 2014.
Send all comments to Nicholas Walker, Management Analyst, Office of Entrepreneurial Development, Small Business Administration, 409 3rd Street SW., Room 6043, Washington, DC 20416. Comments must be received by the deadline in order to be considered.
Nicholas Walker, Management Analyst, 202–205–6637
This information collection, which consists of the Counseling Information Form and the Management Training Report, is used by SBA's Office of Entrepreneurial Development (OED) to collect information from the Agency's resource partners, including: Small Business Development Centers, SCORE, and Women's Business Centers, on the training and counseling provided to existing or potential small business owners through SBA funded grants, cooperative agreements or contracts. The information may be uploaded to SBA through the Entrepreneurial Development Management Information System (EDMIS). OED uses the information to facilitate its management and oversight of each OED program or activity funded by SBA and to assist in evaluating the impact of each program or activity on the small business community. SBA is not proposing any changes to this collection of information at this time, rather, as stated above, the pending request will seek OMB's approval to continue the use of the existing approved information collection beyond the current expiration date of September 30, 2014. Implementation of the changes proposed in the
SBA is requesting comments on (a) whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of TEXAS dated 05/20/2014.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for physical damage is 13999 5 and for economic injury is 14000 0.
The State which received an EIDL Declaration # is Texas.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Tennessee dated 05/20/2014.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 13997 B and for economic injury is 13998 0.
The States which received an EIDL Declaration # are Tennessee, Alabama.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Washington dated 05/19/2014.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 13988 4 and for economic injury is 13989 0.
The States which received an EIDL Declaration # are Washington.
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
DATES:
Direct comments and questions to Allison Wright, Executive Director to the U.S. National Commission for UNESCO at the Department of State, who may be reached at 202–663–0024. You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Allison Wright, who may be reached on 202–663–0024 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
, White House Initiative on American Indian and Alaska Native Education, U.S. Department of Education.
Request for nominations—National Advisory Council on Indian Education (NACIE).
The Obama Administration is seeking nominations for individuals to fill vacant seats and serve on the National Advisory Council on Indian Education (NACIE). NACIE is authorized by section 7141 of the Elementary and Secondary Education Act of 1965
NACIE is governed by provisions of the Federal Advisory Committee Act (FACA) (Pub. L. 92–463; as amended, 5 U.S.C. app.) which sets forth standards for the formation and use of advisory committees. On behalf of the Administration, the White House Initiative on American Indian and Alaska Native Education will receive nominations for membership on NACIE consistent with the requirements listed in the Supplementary Information section of this notice. Nominations should be submitted with a cover letter addressed to the President that includes:
• Your reason(s) for nominating the individual;
• A copy of the nominee's current resume or curriculum vitae;
• Contact information for the nominee (name, title, business address, business phone, fax number, and business email address); and
• A written confirmation that the nominee accepts the nomination.
Submit nominations by 5pm EST no later than 30 days after the posting date of this notice.
Nominations must be emailed to
The Council consists of fifteen (15) members who are Indian (including Alaska Native) as defined in 20 U.S.C. 7491(3), and are appointed by the President from lists of nominees furnished, from time to time, by Indian tribes and organizations. The fifteen members represent different geographic areas of the United States. Members serve as Special Government Employees (SGEs). SGEs are asked to provide their own best judgment without representing any particular point of view, group or special interest, and more importantly, in a manner that is free from any conflict of interest. The SGEs provide advice and recommendations based on their judgment formed by their expertise and experience. The NACIE meets at the call of the Designated Federal Official (DFO) in consultation with the Chairperson (approximately two meetings per year). The President or his delegate shall appoint a Chairperson and a Vice Chairperson from among the members. Members of NACIE may receive reimbursement for travel expenses incident to attending NACIE meetings, including per diem, as authorized by 5 U.S.C. 5703 for persons intermittently employed in the government service.
Sedelta Oosahwee, Associate Director, White House Initiative on American Indian and Alaska Native Education, 400 Maryland Ave SW., Room 4W120, Telephone: 202–453–5618, Email:
You may also access documents of the Department published in the
29 U.S.C. 765.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 26, 2014.
Comments should refer to docket number MARAD–2014–0076. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23–453, Washington, DC 20590. Telephone 202–366–0903, Email
As described by the applicant the intended service of the vessel SALINA 48 is:
The complete application is given in DOT docket MARAD–2014–0076 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 26, 2014.
Comments should refer to docket number MARAD–2014–0079. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–0903, Email
As described by the applicant the intended service of the vessel DEVOCEAN is:
The complete application is given in DOT docket MARAD–2014–0079 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 26, 2014.
Comments should refer to docket number MARAD–2014–0075. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–0903, Email
As described by the applicant the intended service of the vessel SPITFIRE is:
The complete application is given in DOT docket MARAD–2014–0075 at http://www.regulations.gov. Interested parties may comment on the effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. If MARAD determines, in accordance with 46 U.S.C. 12121 and MARAD's regulations at 46 CFR part 388, that the issuance of the waiver will have an unduly adverse effect on a U.S.-vessel builder or a business that uses U.S.-flag vessels in that business, a waiver will not be granted. Comments should refer to the docket number of this notice and the vessel name in order for MARAD to properly consider the comments. Comments should also state the commenter's interest in the waiver application, and address the waiver criteria given in § 388.4 of MARAD's regulations at 46 CFR part 388.
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 26, 2014.
Comments should refer to docket number MARAD–2014–0078. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–0903, Email
As described by the applicant the intended service of the vessel LIVIN' WRIGHT is:
The complete application is given in DOT docket MARAD–2014–0078 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 26, 2014.
Comments should refer to docket number MARAD–2014–0074. Written comments may be submitted by hand or by mail to the Docket Clerk,
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–0903, Email
As described by the applicant the intended service of the vessel SUNNY 1 is:
The complete application is given in DOT docket MARAD–2014–0074 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 26, 2014.
Comments should refer to docket number MARAD–2014–0077. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–0903,
As described by the applicant the intended service of the vessel SUNSET SEAKER is:
The complete application is given in DOT docket MARAD–2014–0077 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
National Highway Traffic Safety Administration, U.S. Department of Transportation.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before June 26, 2014.
Wayne McKenzie, Office of Crash Avoidance Standards (NVS–121), National Highway Traffic Safety Administration, West Building W43–462, 1200 New Jersey Avenue SE., Washington, DC 20590. Mr. McKenzie can be reached at (202) 366–1729.
Abstract: The information to be collected is in response to 49 CFR part 564, “Replaceable Light Source Dimensional Information.” Persons desiring to use newly designed replaceable headlamp light sources are required to submit interchangeability and performance specifications to the agency. After a short agency review to assure completeness, the information is placed in a public docket for use by any person who would like to manufacture headlamp light sources for highway motor vehicles. In Federal Motor Vehicle Safety Standard No. 108, Lamps, reflective devices and associated equipment, “Part 564 submissions” are referenced as being the source of information regarding the performance and interchangeability information for legal headlamp light sources, whether original equipment or replacement equipment. The submitted information about headlamp light sources becomes the basis for certification of compliance with safety standards. Comments from two major lighting suppliers have been in favor of the proposed information collection in regards to headlamp light sources.
Send comments regarding the burden estimate, including suggestions for reducing the burden, to the Office of Management and Budget, Attention: Desk Officer for the Office of the Secretary of Transportation, 725 17th Street NW., Washington, DC 20503.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1:48.
National Highway Traffic Safety Administration, U.S. Department of Transportation.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describes the nature of the information collections and their expected burden. The
This document describes a collection of labeling information on five Federal motor vehicle safety standards for which the National Highway Traffic Safety Administration (NHTSA) seeks OMB approval. The labeling requirements include brake fluid warning, glazing labeling, safety belt labeling, and vehicle certification labeling.
Comments must be submitted on or before June 26, 2014.
Mrs. Lori Summers, U.S. Department of Transportation, NHTSA, Room W43–320, 1200 New Jersey Avenue SE., Washington, DC 20590. Mrs. Summer's telephone number is (202) 366–4917 and fax number is (202) 366–7002.
National Highway Traffic Safety Administration.
FMVSS No. 105, “Hydraulic and electric brake systems” and FMVSS No. 135, “Light vehicle brake systems,” require that each vehicle shall have a brake fluid warning statement in letters at least one-eighth of an inch high on the master cylinder reservoirs and located so as to be visible by direct view.
FMVSS No. 205, “Glazing materials,” provides labeling requirements for glazing and motor vehicle manufacturers. In accordance with the standard, NHTSA requires each new motor vehicle glazing manufacturer to request and be assigned a unique mark or number. This number is then used by the manufacturer as their unique company identification on their self-certification label on each piece of motor vehicle glazing. As part of that certification label, the company must identify with the simple two or three digit number assigned by the agency and the model of the glazing. In addition to these requirements, which apply to all glazing, certain specialty glazing items, such as standee windows in buses, roof openings, and interior partitions made of plastic require that the manufacturer affix a removable label to each item. The label specifies cleaning instructions, which will minimize the loss of transparency. Other information may be provided by the manufacturer but is not required.
FMVSS No. 209, “Seat belt assemblies,” requires safety belts to be labeled with the year of manufacture, the model, and the name or trademark of the manufacturer (S4.1(j)). Additionally replacement safety belts that are for use only in specifically stated motor vehicles must have labels or accompanying instruction sheets to specify the applicable vehicle models and seating positions (S4.1(k)). All other replacement belts are required to be accompanied by an installation instruction sheet (S4.1(k)).
Seat belt assemblies installed as original equipment in new motor vehicles need not be required to be labeled with position/model information. This information is only useful if the assembly is removed with the intention of using the assembly as a replacement in another vehicle; this is not a common practice.
Part 567, “Certification,” requires each manufacturer or distributor of motor vehicles to furnish to the dealer, or distributor of the vehicle, a certification that the vehicle meets all applicable FMVSS. This certification is required by that provision to be in the form of a label permanently affixed to the vehicle. Under 49 U.S.C. 32504, vehicle manufacturers are directed to make a similar certification with regard to bumper standards. To implement this requirement, NHTSA issued 49 CFR Part 567. The agency's regulations establish form and content requirements for the certification labels.
Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725–17th Street NW., Washington, DC 20503, Attention NHTSA Desk Officer.
44 U.S.C. 350(c); delegation of Authority at 49 CFR 1.50.
National Highway Traffic Safety Administration (NHTSA), U.S. Department of Transportation (DOT).
Notice and request for public comments on a proposed collection of information.
Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information. NHTSA invites public comments about our intention to request OMB approval for a new collection of information. The collection involves eligibility, demographic, scheduling preferences, and debriefing questionnaires. The information will be used to recruit participants for a research study that focuses on driver response with various automatic transmission gear selector designs during routine and emergency simulated driving scenarios.
Written comments must be received on or before July 28, 2014.
You may submit comments identified by the Docket No. NHTSA–2014–0033 through one of the following methods:
(65 FR 19477–78) or you may visit
For background documents, contact Lisa Gavin, Office of Crash Avoidance Standards (NVS–121), U.S. Department of Transportation, National Highway Traffic Safety Administration, West Building, W43–432, 1200 New Jersey Avenue SE., Washington, DC 20590. Ms. Gavin can be reached at (202) 366–9291.
Under the Paperwork Reduction Act of 1995, before an agency submits a proposed collection of information to OMB for approval, it must publish a document in the
(i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) How to enhance the quality, utility, and clarity of the information to be collected;
(iv) How to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
In compliance with these requirements, NHTSA asks for public comments on the following proposed collection of information:
The proposed studies will examine driver response to non-traditional gear selector configurations in routine and emergency simulated driving scenarios, noting driver confusion, distraction and unintended consequences due to the unconventional gear selector configuration. The research method consists of driving simulations to collect objective and subjective data about six different gear selector types. Approximately 500 drivers will respond to the request for participants. It is estimated that of the 500 respondents, 360 will ultimately be recruited and participate. The estimated burden hours were calculated for the pre and post experiment questionnaires and for performing the driving tasks for the 500 respondents accordingly.
Participants will be tested individually in a driving simulator located at the Volpe National Transportation Systems Center (Volpe Center), which will conduct this research under an Intra-Agency Agreement (IAA) with NHTSA. The information being collected consists of that required for scheduling appointments and for balancing the subject sample across age groups, gender, and previous driving experience with various motor vehicle gear selector configurations. The experimental data will contain the demographic and past-experience descriptors for each participant, but no personally identifiable information. During or after the experimental sessions, participants may be queried regarding their perceptions and preferences about various aspects of gear-selection controls.
• Eligibility questionnaire will be used to obtain self-reported driving history information. Individuals interested in participating in the study will be asked to provide information about their driving history (e.g., years of driving experience, daily driving usage, familiarity with different types of gear selectors). Individuals will be excluded from participating in the experiment if they do not have a valid driver license.
• Demographic questionnaire will be used to obtain demographic information to confirm that the study group includes participants from various age groups and both genders.
• Scheduling preferences will be used to establish a convenient time for the participants to visit the Volpe Center.
• Post-experiment questionnaire will be used to gather information about drivers' beliefs and attitude towards each gear selector configuration tested, and to explore respondent knowledge of how a motor vehicle will likely respond when shifted to positions other than Drive at highway speed. These questionnaires will also be used to assess perceived usability of the various gear selector configurations in terms of acceptance and satisfaction, as well as willingness to have a particular gear selector configuration in their vehicle.
The Paperwork Reduction Act of 1995, 44 U.S.C. chap. 35; 49 U.S.C. 30181–83; under authority delegated in 49 CFR 1.95
National Highway Traffic Safety Administration (NHTSA), Department Of Transportation.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), this notice announces that the Information Collection Request (ICR) abstract below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describes the nature of the information collections and their expected burden. The
Comments must be submitted on or before June 26, 2014.
Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725–17th Street NW., Washington, DC 20503, Attention NHTSA Desk Officer.
Ms. Deborah Mazyck at the National Highway Traffic Safety Administration, Office of International Policy, Fuel Economy and Consumer Programs, 1200
NHTSA anticipates approximately 21 vehicle manufacturers will be affected by these reporting requirements. NHTSA does not believe that any of these 21 manufacturers are a small business (i.e., one that employs less than 500 persons) since each manufacturer employs more than 500 persons. Manufacturers of new passenger motor vehicles, including passenger cars, certain small buses, and light trucks with a gross vehicle weight rating of 8,500 pounds or less, must file a report annually.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition for exemption.
This document grants in full the Jaguar Land Rover North America LLC's, (Jaguar Land Rover) petition for an exemption of the Discovery Sport vehicle line in accordance with 49 CFR part 543,
The exemption granted by this notice is effective beginning with the 2015 model year (MY).
Ms. Deborah Mazyck, Office of International Policy, Fuel Economy and Consumer Programs, NHTSA, W43–443, 1200 New Jersey Avenue SE., Washington, DC 20590. Ms. Mazyck's phone number is (202) 366–4139. Her fax number is (202) 493–2990.
In a petition dated February 19, 2014, Jaguar Land Rover requested an exemption from the parts-marking requirements of the Theft Prevention Standard for the Jaguar Land Rover Discovery Sport vehicle line beginning with MY 2015. The petition requested an exemption from parts-marking pursuant to 49 CFR part 543,
Under 49 CFR 543.5(a), a manufacturer may petition NHTSA to grant an exemption for one vehicle line per model year. In its petition, Jaguar Land Rover provided a detailed description and diagram of the identity, design, and location of the components of the antitheft device for the Discovery Sport vehicle line. Jaguar Land Rover stated that the MY 2015 Discovery Sport vehicle line will be equipped with a passive, transponder based, electronic engine immobilizer antitheft device as standard equipment. Key components of its antitheft device will include a power train control module (PCM), instrument cluster, body control module (BCM), keyless vehicle module (KVM), remote frequency receiver (RFA), Immobilizer Antenna Unit, Smart Key and door control units. Jaguar Land Rover stated that its antitheft device will also be installed with an audible and visual perimeter alarm system as standard equipment. Jaguar Land Rover stated that the perimeter alarm system can be armed with the Smart Key or programmed to be passively armed. The alarm will sound and the vehicle's exterior lights will flash if unauthorized entry is attempted by opening the hood, doors or luggage compartment. Jaguar Land Rover's submission is considered a complete petition as required by 49 CFR 543.7, in that it meets the general requirements contained in § 543.5 and the specific content requirements of § 543.6.
The immobilizer device is automatically armed when the Smart Key is removed from the vehicle. Jaguar Land Rover stated that the Smart key is programmed and synchronized to the vehicle through the means of a unique identification key code for each key and a randomly generated secret code that is unique to each vehicle.
Jaguar Land Rover stated that there will be three methods for unlocking the doors and starting the engine of the Discovery Sport vehicle line. The three methods of system operation will either be through the vehicle's automatic detection of the Smart Key, unlocking the vehicle with the Smart key unlock button or by using the emergency key blade. Jaguar Land Rover stated that automatic detection of the Smart key method occurs when authentication of the correct Smart Key via a low frequency to remote frequency challenge response sequence occurs. Specifically, when the driver approaches the vehicle and pulls the driver's door handle, the doors will unlock. When the driver
In addressing the specific content requirements of § 543.6, Jaguar Land Rover provided information on the reliability and durability of its proposed device. To ensure reliability and durability of the device, Jaguar Land Rover conducted tests based on its own specified standards. Jaguar Land Rover provided a detailed list of the tests conducted (i.e., temperature and humidity cycling, high and low temperature cycling, mechanical shock, random vibration, thermal stress/shock tests, material resistance tests, dry heat, dust and fluid ingress tests). Jaguar Land Rover stated that it believes that its device is reliable and durable because it has complied with specified requirements for each test. Additionally, Jaguar Land Rover stated that the key recognition sequence includes in excess of a billion code combinations which include encrypted data that are secure against copying. Jaguar Land Rover also stated that the coded data transfer between modules use a unique secure identifier, a random number and a secure public algorithm. Furthermore, Jaguar Land Rover stated that since the Discovery Sport vehicle line will utilize push button vehicle ignition, it does not have a conventional mechanical key barrel. Therefore, there will be no means of forcibly bypassing the key-locking system.
Jaguar Land Rover stated that the Discovery Sport is a new vehicle line and therefore no theft data is available. Jaguar Land Rover further stated that its immobilizer antitheft device is substantially similar to the antitheft device installed on the Jaguar F-Type, Jaguar XK, Jaguar XJ, Land Rover LR2 and Land Rover Range Rover Evoque vehicle lines and have all been granted parts-marking exemptions by the agency. Jaguar Land Rover stated that based on MY 2011 theft information published by NHTSA, the Jaguar Land Rover vehicles equipped with immobilizers had a combined theft rate of 0.79 per thousand vehicles, which is below NHTSA's overall theft rate of 0.99 thefts per thousand. The theft rates for the Jaguar XK, XJ and Land Rover LR2 are 0.8192, 1.4025 and 0.9001, respectively. Theft rate data is not available for the Jaguar F-Type and Land Rover Evoque. Jaguar Land Rover believes these low theft rates demonstrate the effectiveness of the immobilizer device. Additionally, Jaguar Land Rover notes a Highway Loss Data Institute news release (July 19, 2000) showing approximately a 50% reduction in theft for vehicles installed with an immobilizer device.
The agency agrees that the device is substantially similar to devices installed on other vehicle lines for which the agency has already granted exemptions
Based on the supporting evidence submitted by Jaguar Land Rover on its device, the agency believes that the antitheft device for the Discovery Sport vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard (49 CFR part 541). The agency concludes that the device will provide the five types of performance listed in § 543.6(a)(3): promoting activation; attract attention to the efforts of an unauthorized person to enter or move a vehicle by means other than a key; preventing defeat or circumvention of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device.
Pursuant to 49 U.S.C. 33106 and 49 CFR 543.7 (b), the agency grants a petition for exemption from the parts-marking requirements of Part 541 either in whole or in part, if it determines that, based upon substantial evidence, the standard equipment antitheft device is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of Part 541. The agency finds that Jaguar Land Rover has provided adequate reasons for its belief that the antitheft device for the Jaguar Land Rover Discovery Sport vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard (49 CFR Part 541). This conclusion is based on the information Jaguar Land Rover submitted on its device.
For the foregoing reasons, the agency hereby grants in full Jaguar Land Rover's petition for exemption for the Jaguar Land Rover Discovery Sport vehicle line from the parts-marking requirements of 49 CFR Part 541. The agency notes that 49 CFR Part 541, Appendix A–1, identifies those lines that are exempted from the Theft Prevention Standard for a given model year. 49 CFR Part 543.7(f) requires NHTSA to publish a notice of its decision to grant or deny an exemption petition in the
If Jaguar Land Rover decides not to use the exemption for this line, it must formally notify the agency. If such a decision is made, the line must be fully marked according to the requirements under 49 CFR Parts 541.5 and 541.6 (marking of major component parts and replacement parts).
NHTSA notes that if Jaguar Land Rover wishes in the future to modify the device on which this exemption is based, the company may have to submit a petition to modify the exemption. Part 543.7(d) states that a Part 543 exemption applies only to vehicles that belong to a line exempted under this part and equipped with the antitheft device on which the line's exemption is based. Further, Part 543.9(c)(2) provides for the submission of petitions “to modify an exemption to permit the use of an antitheft device similar to but differing from the one specified in that exemption.”
The agency wishes to minimize the administrative burden that Part 543.9(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend in drafting Part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be
49 U.S.C. 33106; delegation of authority at 49 CFR 1.50.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Meeting Notice—Training Sessions for Online Recalls Portal.
NHTSA is requiring manufacturers to submit recall reports and associated documents online through a web-based, Internet portal beginning August 2014. Through this portal, manufacturers will not only file new reports, but will update and amend those reports, file quarterly reports on the progress of their recall campaigns, submit copies of representative communications they issue to owners and dealers, and conduct a host of other routine filings and communications with the agency attendant to a safety recall campaigns. NHTSA will offer twenty (20) online training sessions to instruct manufacturer staff and representatives on how to obtain accounts and use the new portal between July 28, 2014, and August 8, 2014
The training sessions will be offered between July 28, 2014, and August 8, 2014. Participants must register by July 25, 2014. Specific training dates and times can be found in the
All training sessions will be instructor-led and online. The web address and passcode will be provided to registered participants before their selected session. Attendees must register by close of business July 25, 2014. To register please send an email to
Alex Ansley, Safety Recall Specialist, NHTSA, Phone: 202–493–0481, Email:
On August 20, 2013, NHTSA published a final rule requiring manufacturers to submit required recall information through a web-based, Internet portal accessed through our Web site
Online training sessions will be offered to any manufacturer personnel, representatives, and interested members of the public.
All training will be instructor-led WebEx sessions. Each training session will be limited to fifty (50) registered participants.
To register, please send an email to
Training session access instructions will be sent to registered participants on or about July 25, 2014.
For those unable to attend a training session, a recorded version of the Online Recalls Portal Training Presentation, along with other training materials, will be available as a reference. We will place this recording in a conspicuous location at
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, on or after the date of publication of this notice.
Comments should be received on or before June 26, 2014 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by emailing
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, on or after the date of publication of this notice.
Comments should be received on or before June 26, 2014 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by emailing
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 comment on one new proposed information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). The Treasury is soliciting comments concerning a proposed generic information collection that will allow the Treasury to conduct research that will serve to inform the development of and assess the effectiveness of strategies to increase access to financial services and to enhance financial decision-making skills.
Written comments should be received on or before July 28, 2014 to be assured of consideration.
Comments regarding these information collections should be addressed to the Treasury Office of Consumer Policy Contact listed below and to the Treasury Department PRA Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue NW., Washington, DC 20220.
Copies of the submission(s) may be obtained by contacting James Gatz, Policy Analyst, Office of Consumer Policy, Room 1426, U.S. Treasury Department, 1500 Pennsylvania Avenue NW., Washington, DC 20228, by telephone at 202–622–3946, or by email at
Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).
Final rule.
This final rule addresses various requirements applicable to health insurance issuers, Affordable Insurance Exchanges (“Exchanges”), Navigators, non-Navigator assistance personnel, and other entities under the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 (collectively referred to as the Affordable Care Act). Specifically, the rule establishes standards related to product discontinuation and renewal, quality reporting, non-discrimination standards, minimum certification standards and responsibilities of qualified health plan (QHP) issuers, the Small Business Health Options Program, and enforcement remedies in Federally-facilitated Exchanges. It also finalizes: A modification of HHS's allocation of reinsurance collections if those collections do not meet our projections; certain changes to allowable administrative expenses in the risk corridors calculation; modifications to the way we calculate the annual limit on cost sharing so that we round this parameter down to the nearest $50 increment; an approach to index the required contribution used to determine eligibility for an exemption from the shared responsibility payment under section 5000A of the Internal Revenue Code; grounds for imposing civil money penalties on persons who provide false or fraudulent information to the Exchange and on persons who improperly use or disclose information; updated standards for the consumer assistance programs; standards related to the opt-out provisions for self-funded, non-Federal governmental plans and related to the individual market provisions under the Health Insurance Portability and Accountability Act of 1996 including excepted benefits; standards regarding how enrollees may request access to non-formulary drugs under exigent circumstances; amendments to Exchange appeals standards and coverage enrollment and termination standards; and time-limited adjustments to the standards relating to the medical loss ratio (MLR) program. The majority of the provisions in this rule are being finalized as proposed.
This rule is effective July 28, 2014 except for amendments to 45 CFR 155.705 which are effective May 27, 2014.
For general matters and matters related to Parts 144, 146, 147, 148 and 154: Jacob Ackerman, (301) 492–4179.
For matters related to reinsurance, under Part 153: Adrianne Glasgow, (410) 786–0686.
For matters related to risk corridors, under Part 153: Jaya Ghildiyal, (301) 492–5149.
For matters related to non-interference with Federal law and non-discrimination standards, and Navigator, non-Navigator assistance personnel, and certified application counselor program standards, under Part 155, subparts B and C: Tricia Beckmann, (301) 492–4328.
For matters related to civil money penalties for noncompliant consumer assistance entities, under Part 155, subpart C: Emily Ames, (301) 492–4246.
For matters related to enrollment of a qualified individual, under Part 155, subpart E: Jack Lavelle, (410) 786–0639.
For matters related to civil money penalties for false or fraudulent information or improper use of information, under Part 155, subpart C; exemptions under Part 155, subparts D and G, and matters related to eligibility appeals, under Part 155, subparts F and H: Christine Hammer, (301) 492–4431.
For matters related to special enrollment periods under Part 155, Subpart E: Spencer Manasse, (301) 492–5141.
For matters related to the Small Business Health Options Program, under Part 155, subpart H: Christelle Jang, (410) 786–8438.
For matters related to the required contribution percentage for affordability exemptions, under Part 155, subpart G: Ariel Novick, (301) 492–4309.
For matters related to cost sharing, under Part 156, subpart B: Pat Meisol, (410) 786–1917.
For matters related to quality standards, under Parts 155 and 156: Nidhi Singh Shah, (301) 492–5110.
For matters related to enforcement remedies, under Part 156: Cindy Yen, (301) 492–5142.
For matters related to minimum essential coverage, under Part 156, subpart G: Cam Clemmons, (410) 786–1565.
For all other matters related to Parts 155 and 156: Leigha Basini, (301) 492–4380.
For matters related to the medical loss ratio program, under Part 158: Julie McCune, (301) 492–4196.
This
Since January 1, 2014, qualified individuals and small employers have been able to obtain private health insurance through Affordable Insurance Exchanges, or “Exchanges” (also known as Health Insurance Marketplaces, or “Marketplaces”).
Individuals who enroll in QHPs through individual market Exchanges may be eligible to receive premium tax credits to make health insurance purchased through an Exchange more affordable and cost-sharing reductions (CSRs) that lower out-of-pocket expenses for health care services. The premium tax credits, combined with the new insurance reforms, have significantly increased the number of individuals with health insurance coverage. The premium stabilization programs—risk adjustment, reinsurance, and risk corridors—protect against adverse selection in the newly enrolled population. These programs, in combination with the MLR program and market reforms extending guaranteed availability (also known as guaranteed issue) protections, prohibiting the use of factors such as health status, medical history, gender, and industry of employment to set premium rates, will help to ensure that every American has access to high quality, affordable health insurance.
This final rule addresses various requirements applicable to health insurance issuers, Exchanges, Navigators, non-Navigator assistance personnel, and other entities under the Affordable Care Act. Specifically, the rule establishes standards related to product discontinuation and renewal, quality reporting, non-discrimination standards, minimum certification standards and responsibilities of QHP issuers, the Small Business Health Options Program (SHOP), and enforcement remedies in Federally-facilitated Exchanges (FFEs). It also finalizes: A modification of HHS's allocation of reinsurance collections if those collections do not meet our projections; certain changes to allowable administrative expenses in the risk corridors calculation; modifications to the way we calculate the annual limit on cost sharing so that we round this parameter down to the nearest $50 increment; an approach to indexing the required contribution used to determine eligibility for an exemption from the shared responsibility payment under section 5000A of the Internal Revenue Code; grounds for imposing CMPs on persons who provide false or fraudulent information to the Exchange and on persons who improperly use or disclose information; updated standards for Exchange consumer assistance programs; standards related to the opt-out provisions for self-funded, non-Federal governmental plans and related to the individual market provisions under the Health Insurance Portability and Accountability Act of 1996 (HIPAA); amendments to Exchange appeals standards and coverage enrollment and termination standards; and time-limited adjustments to the standards relating to the MLR program.
We align the start of employer election periods in FF–SHOPs for plan years beginning in 2015 with the start of open enrollment in the corresponding individual market Exchange for the 2015 benefit year and, in all SHOPs, eliminate the 30-day minimum time frames for the employer and employee annual election periods. We also allow State Insurance Commissioners the opportunity to recommend that, in 2015, a SHOP not provide employers with the option of selecting a level of coverage as described in section 1302(d)(1) of the Affordable Care Act and making all QHPs at that level of coverage available to their employees if the commissioner can adequately explain that it is his or her expert judgment, based on a documented assessment of the full landscape of the small group market in his or her State, that not implementing employee choice would be in the best interest of small employers and their employees and dependents, given the likelihood that implementing employee choice would cause issuers to price products and plans higher in 2015 due to the issuers' beliefs about adverse selection. We allow the opportunity for a person appealing a determination of SHOP eligibility to withdraw an appeal by telephone, if the appeals entity is capable of accepting telephonic signatures.
The Patient Protection and Affordable Care Act (Pub. L. 111–148) was enacted on March 23, 2010. The Health Care and Education Reconciliation Act of 2010 (Pub. L. 111–152), which amended and revised several provisions of the Patient Protection and Affordable Care Act, was enacted on March 30, 2010. In this final rule, we refer to the two statutes collectively as the “Affordable Care Act.”
The Affordable Care Act reorganizes, amends, and adds to the provisions of title XXVII of the PHS Act relating to group health plans and health insurance issuers in the group and individual markets.
Section 1201 of the Affordable Care Act added sections 2702 and 2703 of the PHS Act. Section 2702 of the PHS Act generally requires an issuer that offers health insurance coverage in the individual or group market in a State to offer coverage to and accept every individual or employer in the State that applies for such coverage. Section 2703 of the PHS Act generally requires an issuer to renew or continue in force coverage in the group or individual market at the option of the plan sponsor or the individual.
Prior to enactment of the Affordable Care Act, HIPAA amended the PHS Act to improve access to individual health insurance coverage for certain eligible individuals who previously had group coverage, and to guarantee the renewability of all coverage in the individual market. These reforms were added as sections 2741 through 2744 of the PHS Act.
HIPAA also added PHS Act provisions permitting sponsors of self-funded, non-Federal governmental plans to elect to exempt those plans from (“opt out of”) certain provisions of title XXVII of the PHS Act. This election was authorized under section 2721(b)(2) of the PHS Act, which is now designated as section 2722(a)(2) of the PHS Act by the Affordable Care Act.
Section 2718 of the PHS Act, as added by the Affordable Care Act, generally requires health insurance issuers to submit an annual MLR report to HHS and provide rebates to consumers if they do not achieve specified MLRs.
Sections 2722 and 2763 of the PHS Act, as implemented in 45 CFR 146.145(b) and 148.220, provide that the requirements of parts A and B of title XXVII of the PHS Act shall not apply to any individual coverage or any group health plan (or group health insurance coverage) in relation to its provision of excepted benefits. Excepted benefits are described in section 2791(c) of the PHS Act. One category of excepted benefits, called “noncoordinated excepted benefits,” includes coverage for only a specified disease or illness, and hospital indemnity or other fixed indemnity insurance. Benefits in this category are excepted only if they meet certain conditions specified in the statute and regulations.
Section 1302(b) requires the Secretary to define EHB, including prescription drugs.
Section 1302(c) of the Affordable Care Act establishes an annual limitation on cost sharing for 2014, and provides that this limitation is to be increased for each year after 2014 by the percentage by which the average per capita premium for health insurance coverage in the United States for the preceding year exceeds the average per capita premium for 2013. Under section 1302(c), this limitation is to be rounded to the next lowest multiple of $50.
Section 1311(b) of the Affordable Care Act provides that each State has the opportunity to establish an Exchange that: (1) Facilitates the purchase of insurance coverage by qualified individuals through QHPs; (2) provides for the establishment of a SHOP designed to assist qualified employers in the enrollment of their qualified employees in QHPs; and (3) meets other requirements specified in the Affordable Care Act.
Section 1311(c)(3) of the Affordable Care Act requires the Secretary to develop a rating system to rate QHPs offered through an Exchange on the basis of quality and price. Section 1311(c)(4) of the Affordable Care Act directs the Secretary to establish an ESS system that would evaluate the level of enrollee satisfaction of members in QHPs offered through an Exchange, for each QHP with more than 500 enrollees in the previous year. Sections 1311(c)(3) and 1311(c)(4) of the Affordable Care Act further require an Exchange to provide information to individuals and employers from the rating and ESS systems on the Exchange's Web site. We have already promulgated regulations in 45 CFR 155.200(d) that direct Exchanges to oversee implementation of ESSs and ratings of health care quality and
Sections 1311(d)(4)(K) and 1311(i) of the Affordable Care Act direct all Exchanges to establish a Navigator program.
Section 1312(a)(2) of the Affordable Care Act provides that a qualified employer may provide support for coverage of employees under a QHP by selecting any level of coverage under section 1302(d) to be made available to employees through a SHOP. Section 1312(a)(2) further provides that employees of an employer who makes such an election may choose to enroll in a QHP that offers coverage at that level.
Section 1321(a) of the Affordable Care Act provides authority for the Secretary to establish standards and regulations to implement the statutory requirements related to Exchanges, QHPs and other components of title I of the Affordable Care Act. Section 1321(a)(1) directs the Secretary to issue regulations that set standards for meeting the requirements of title I of the Affordable Care Act with respect to, among other things, the establishment and operation of Exchanges. Section 1321(a)(2) requires the Secretary to engage in consultation to ensure balanced representation among interested parties.
Section 1321 of the Affordable Care Act provides for State flexibility in the operation and enforcement of Exchanges and related requirements. Section 1321(d) provides that nothing in title I of the Affordable Care Act shall be construed to preempt any State law that does not prevent the application of title I of the Affordable Care Act. Section 1311(k) specifies that Exchanges may not establish rules that conflict with or prevent the application of regulations promulgated by the Secretary.
Section 1321(c)(1) requires the Secretary of HHS (referred to throughout this rule as the Secretary) to establish and operate an FFE within States that either: (1) Did not elect to establish an Exchange; or (2) as determined by the Secretary, did not have any required Exchange operational by January 1, 2014.
Section 1321(c)(2) of the Affordable Care Act provides that the provisions of section 2723(b) of the PHS Act
Section 1341 of the Affordable Care Act requires the establishment of a transitional reinsurance program in each State to help pay the cost of treating high-cost enrollees in the individual market from 2014 through 2016. Section 1342 of the Affordable Care Act directs the Secretary to establish a temporary risk corridors program that provides for the sharing in gains or losses resulting from inaccurate rate setting from 2014 through 2016 between the Federal government and certain participating health plans. Section 1343 of the Affordable Care Act establishes a permanent risk adjustment program that provides for payments to health insurance issuers that attract higher-risk populations, such as those with chronic conditions, and charges issuers that attract lower-risk populations thereby reducing incentives for issuers to avoid higher-risk enrollees.
Section 1411(f)(1) of the Affordable Care Act provides that the Secretary, in consultation with the Secretary of the Treasury, the Secretary of Homeland Security, and the Commissioner of Social Security, shall establish procedures by which the Secretary or one of such other Federal officers hears and makes decisions with respect to appeals of any determination under subsection (e) and redetermines eligibility on a periodic basis in appropriate circumstances. Section 1411(f)(2) of the Affordable Care Act provides that the Secretary shall establish a separate appeals process for employers who are notified under section 1411(e)(4)(C) of the Affordable Care Act that the employer may be liable for a tax imposed by section 4980H of the Internal Revenue Code of 1986 (the Code) with respect to an employee because of a determination that the employer does not provide minimum essential coverage through an employer-sponsored plan or that the employer does provide that coverage but it is not affordable coverage with respect to an employee.
Section 1411(h) of the Affordable Care Act sets forth CMPs to which any person may be subject if that person provides inaccurate information as part of an Exchange application or improperly uses or discloses an applicant's information.
Section 1501(b) of the Affordable Care Act added section 5000A to the Code. That section, as amended by the TRICARE Affirmation Act of 2010 (Pub. L. 111–159, 124 Stat. 1123) and Public Law 111–173 (124 Stat. 1215), requires nonexempt individuals to either maintain minimum essential coverage or make a shared responsibility payment for each month beginning in 2014. It also describes categories of individuals who may qualify for an exemption from the individual shared responsibility payment. Section 1311(d)(4)(H) of the Affordable Care Act specifies that the Exchange will, subject to section 1411 of the Affordable Care Act, grant certifications of exemption from the individual shared responsibility payment specified in section 5000A of the Code. Standards relating to these provisions were established in IRS regulations titled, “Shared Responsibility Payment for Not Maintaining Minimum Essential Coverage Final Rule,” published in the August 30, 2013
HHS has consulted with stakeholders on policies related to the operation of Exchanges, including the SHOP and the premium stabilization programs. HHS has held a number of listening sessions with consumers, providers, employers, health plans, the actuarial community, and State representatives to gather public input. HHS consulted with stakeholders through regular meetings with the National Association of Insurance Commissioners (NAIC), regular contact with States through the Exchange Establishment grant and Exchange Blueprint approval processes, technical health care quality measurement experts, health care survey development experts, and meetings with Tribal leaders and representatives, health insurance issuers, trade groups, consumer advocates, employers, and other interested parties. In addition, HHS received public comment on various notices published in the
The regulations outlined in this final rule will be codified in 45 CFR parts 144, 146, 147, 148, 153, 154, 155, 156, and 158. Part 144 outlines requirements relating to health insurance coverage. Part 146 outlines the group health insurance market requirements of the PHS Act added by HIPAA and other statutes, including opt-out provisions for sponsors of self-funded, non-Federal governmental plans. Part 147 outlines health insurance reform requirements for the group and individual markets added by the Affordable Care Act, including standards related to guaranteed availability and guaranteed renewability of coverage. Part 148 outlines the individual health insurance market requirements of the PHS Act added by HIPAA and other statutes, including standards related to guaranteed availability with respect to certain eligible individuals and guaranteed renewability for all individuals. Part 153 outlines standards related to the reinsurance and risk corridors programs. Part 154 outlines standards related to the disclosure and review of rate increases. Part 155 outlines standards related to the operations and functions of an Exchange, including standards related to non-discrimination, accessibility, and enforcement remedies; standards applicable to the consumer assistance functions performed by Navigators, non-Navigator assistance personnel, and certified application counselors; standards related to eligibility appeals; standards related to exemptions; standards related to quality reporting; and standards related to SHOP. Part 156 outlines health insurance issuer responsibilities, including EHB prescription drug standards; the methodology for calculating the annual limit on cost-sharing for years after 2014; minimum certification standards; standards for recognition of certain types of coverage as minimum essential coverage; quality standards for QHPs; and other QHP issuer responsibilities. Part 158 outlines standards related to the MLR program, including standards related to treatment of ICD–10 conversion costs, standards related to adjustments for issuers affected by the HHS transitional policy and issuers that incurred costs due to the technical issues during the implementation of the Exchanges, and standards related to MLR reporting and rebate calculations in States with merged individual and small group markets.
The proposed rule titled, “Patient Protection and Affordable Care Act; Exchange and Insurance Market Standards for 2015 and Beyond,” was published in the
Some comments were general public comments on the Affordable Care Act and the government's role in health care, but not specific to the proposed rule. We have not addressed such comments, and others that are not directly related to the proposed rule, because they are outside the scope of this final rule.
In this final rule, we provide a summary of each proposed provision, a summary of and responses to the public comments received, and the provisions we are finalizing.
See the discussion in section III.C.1.b, “Product Discontinuance and Uniform Modification of Coverage Exceptions to Guaranteed Renewability Requirements.”
We proposed to codify the requirement that self-funded, non-Federal governmental plans may no longer elect to be exempt from (“opt out of”) requirements of title XXVII of the PHS Act related to limitations on preexisting condition exclusion periods; requirements for special enrollment periods; and prohibitions on health status discrimination. Self-funded, non-Federal governmental plans may, however, continue to opt-out of requirements related to benefits for newborns and mothers; parity in mental health and substance use disorder benefits; required coverage for reconstructive surgery following mastectomies; and coverage of dependent students on a medically necessary leave of absence.
We also proposed to streamline the submission process by requiring that opt-out elections be submitted electronically in a format specified by the Secretary in guidance. We solicited comment on these proposals, including ways to improve the electronic submission process.
The proposed rule provided a special effective date for self-funded, non-Federal governmental plans maintained pursuant to a collective bargaining agreement ratified before March 23, 2010 (the date of enactment of the Affordable Care Act) that had opted out of the requirement categories which are no longer available for exemption. These collectively bargained plans may continue to be exempt from the
The effect of the Affordable Care Act amendments on the HIPAA opt-out provisions was discussed in previous CMS guidance released on September 21, 2010.
We noted that under the current regulations, plan sponsors of collectively bargained plans may submit one opt-out election for all group health plans subject to the same collective bargaining agreement. We solicited comment on whether the plan sponsor in such circumstances should be required to list all plans subject to the agreement. We also solicited comment on whether a single opt-out submission should be permitted in the case of multiple group health plans not subject to collective bargaining.
We solicited comments on whether the regulation should be modified to allow plan sponsors of multiple group health plans not subject to collective bargaining to submit one election for all of its group health plans. We did not receive any comments on this issue; accordingly, we are adding regulation text to clarify the current requirement that a separate election must be filed for each group health plan not subject to collective bargaining.
We will continue to accept opt-out elections via U.S. Mail or facsimile until December 31, 2014. During this time, opt-out elections will continue to be accepted by mail to: Centers for Medicare & Medicaid Services (CMS), Center for Consumer Information and Insurance Oversight (CCIIO), Attn: HIPAA Opt-Out, 200 Independence Avenue SW., Room 733H–02, Washington, DC 20201. Elections may also continue to be submitted via facsimile at 301–492–4462. For elections submitted via U.S. mail, CMS will continue to use the postmark on the envelope in which the election is submitted to determine that the election is timely filed. If the latest filing date falls on a Saturday, Sunday, or a State or Federal holiday, CMS accepts a postmark or a fax on the next business day. Questions regarding the opt-out process can be submitted to CMS at
We are finalizing the revisions proposed in § 146.180 of the proposed rule, with the following modifications. In paragraph (b), we add paragraph (b)(1)(ix) to state that, in the case of plan sponsor submitting one opt-out election for multiple group health plans subject to the same collective bargaining agreement, the opt-out election must list each group health plan subject to the agreement. Also in paragraph (b), we add paragraph (b)(1)(x) to state that, in the case of a plan sponsor submitting more than one opt-out election for plans that are not collectively bargained, a separate opt-out election must be submitted for each such plan. In paragraph (c)(3), we delete the special rule for timely filing with respect to opt out elections submitted by U.S. mail, and instead specify a special rule for timely filing that applies to electronic filings. The special rule indicates that, if the latest filing date falls on a Saturday, Sunday, or a State or Federal holiday, CMS accepts filings submitted the next business day.
We proposed that nothing in the guaranteed availability requirements should be construed to require an issuer to offer coverage where other Federal laws operate to prohibit the issuance of such coverage. Similarly, we proposed that nothing in the guaranteed renewability requirements should be construed to require an issuer to renew or continue in force coverage for which continued eligibility would otherwise be prohibited under applicable Federal law. We offered several examples of statutory exceptions to the guaranteed availability and renewability requirements in the preamble to the proposed rule (78 FR 15815–6), and noted that only Federal law, not State law, can create such exceptions. We solicited comment on these clarifications, as well as other clarifications that may be helpful.
Additionally, we proposed a technical correction in § 147.104(b)(1)(i) to delete duplicate regulatory text added in earlier rulemaking.
While the Medicare anti-duplication provision prohibits the sale or issuance of a policy, it does not provide for discontinuance or non-renewal of a policy already issued, such as when an individual covered by an individual market policy becomes covered by
We are finalizing the proposed provisions with the following modification. We add § 147.106(g)(2) to restate the standard under the HIPAA guaranteed renewability regulations at § 148.122(b)(2) that Medicare eligibility or entitlement is not a basis for non-renewal or termination of an individual's health insurance coverage in the individual market.
We proposed standards to define whether certain modifications to coverage constitute “uniform modifications” within the meaning of the PHS Act. These provisions were proposed in the guaranteed renewability regulations at 45 CFR 146.152, 147.106, and 148.122. Under the proposed rule, they would apply to issuers offering health insurance coverage in the group and individual markets, including both grandfathered and non-grandfathered health plans.
Specifically, we proposed that a modification made by an issuer solely pursuant to applicable Federal or State law would be considered a modification of the same product, and offered several examples of changes in response to Federal law that would constitute a modification of coverage.
We further proposed that if an issuer makes changes to the health insurance coverage for a product that are not pursuant to applicable Federal or State law, the modifications would also be considered a uniform modification of coverage if the resulting product meets all of the following criteria:
• The product is offered by the same health insurance issuer (within the meaning of section 2791(b)(2) of the PHS Act);
• The product is offered as the same product type (for example, preferred provider organization (PPO) or health maintenance organization (HMO));
• The product covers a majority of the same counties in its service area;
• The product has the same cost-sharing structure, except for variation in cost sharing solely related to changes in cost and utilization of medical care, or to maintain the same level of coverage described in sections 1302(d) and (e) of the Affordable Care Act (for example, bronze, silver, gold, platinum or catastrophic); and
• The product provides the same covered benefits, except for changes in benefits that cumulatively impact the rate for the product by no more than 2 percent (not including changes required by applicable Federal or State law).
We proposed that States have flexibility to apply additional criteria that broaden the scope of what is considered a uniform modification, but that narrower State standards would be preempted.
We also proposed to add a provision in § 147.106(e)(1) to restate the uniform modification of coverage provision for individual health insurance coverage under § 148.122(g). This was proposed for ease of reference and to facilitate issuer compliance.
To provide clear information to consumers and help ensure they understand the changes and choices available to them in the individual and group markets, we proposed that issuers provide standard notices in a form and manner prescribed by the Secretary when discontinuing or renewing coverage. Contemporaneously with the proposed rule, we released draft standard notices that issuers would be required to use in each of these situations, and requested public comment.
Finally, we stated that HHS or the applicable State will review rate increases for existing products that an issuer withdrew and attempted to re-file within a 12-month period as new products in order to avoid rate review as if they were simply renewed, if the changes to the discontinued product do not differ from the uniform modification criteria outlined above. We indicated that the same criteria set forth under the guaranteed renewability standards will be used to determine whether the re-filed product is considered to be the same “product” for purposes of determining whether the rate filing is subject to submission and review under 45 CFR Part 154. We requested comment on whether this clarification, or a reference to the uniform modification criteria, should be incorporated into the rate review regulations.
We also note that, based on the statutory language requiring the changes to be “effective on a uniform basis,” we are adding regulation text explicitly stating that the interpretation of uniform modification provided for in this rule also requires that the modifications be made uniformly.
Because the guaranteed renewability statutes applicable to grandfathered individual market policies and group health insurance plans, PHS Act sections 2742 and 2712, respectively, use the same terms as the statute enacted under the Affordable Care Act at PHS Act section 2703, we decline to interpret the requirements differently for grandfathered plans. We note that in proposing to amend § 146.152, we unintentionally proposed to replace paragraph (g) with the new paragraph regarding notice of renewal of coverage, rather than adding a new paragraph (h). In this final rule, we correctly add the new paragraph as paragraph (h). Similarly, we note that in proposing to amend § 148.122, we unintentionally proposed to replace paragraph (h) with the new paragraph regarding notice of renewal of coverage, rather than adding a new paragraph (i). In this final rule, we correctly add the new paragraph as paragraph (i).
In response to the comment addressing the example we provided in the proposed rule of what would be considered “solely pursuant to applicable Federal or State law,” we also are adding language providing more detail on what constitutes a modification “made solely pursuant to applicable Federal and State requirements.” Specifically, the modification must be made within a reasonable time period after a Federal or State requirement is imposed or modified, and it must also be directly related to the imposition or modification of a Federal or State requirement. For example, if State legislation newly requires a minimum level of benefits (for example, imposing a new minimum visit limit on specific benefits) reducing covered benefits to meet the minimum requirement would not be directly related to the new requirement because the lesser coverage of the benefit coverage was previously permissible, and the modification did not have to be made in order for the issuer to comply with the State law. Accordingly, the modification would not be considered to have been “made solely pursuant to” the new requirement. Such a modification would have to meet the other criteria in the final rule to be considered a uniform modification of coverage.
However, in the 2015 Letter to Issuers in the Federally-facilitated Marketplaces (2015 Letter to Issuers),
In the 2015 Payment Notice, we established the national annual limit on cost sharing for the pediatric dental EHB when offered through an SADP of $350 for one covered child and $700 for two or more covered children. We acknowledge that, given the change to the annual limit on cost sharing, SADP issuers may need to modify the cost sharing of their currently certified plans in order to meet the annual limit established for implementation in 2015.
We interpret any uniform cost-sharing changes made to conform to the new national annual limit on cost sharing as meeting the uniform modification standard, because these modifications would meet the requirements under § 147.106(e)(2) of this final rule, which provides that, “modifications made uniformly and solely pursuant to applicable Federal or State requirements are considered a uniform modification of coverage.” We further note that the general applicability of the annual limitation on cost sharing, if applied to all plans, would affect all consumers.
Therefore, we would consider an SADP that is uniformly modified to reduce its annual limitation on cost sharing pursuant to the change in regulations to meet the standards in paragraph (e)(2) as being a renewal with a uniform modification of the same plan for the purposes of recertification.
To clarify the application of these provisions in response to the above comments, we are codifying definitions of “product” and “plan” for purposes of this rule. Because similar language and concepts apply in the guaranteed availability statutes and regulations, we will apply these definitions to those regulations as well, by codifying the definitions at § 144.103. These definitions are adopted largely from the Web portal and the rate review regulations.
Under this final rule, for purposes of guaranteed availability and guaranteed renewability, the term “product” means a discrete package of health insurance coverage benefits that a health insurance issuer offers using a particular product network type (for example, health maintenance organization (HMO), preferred provider organization (PPO), exclusive provider organization (EPO), point of service (POS), or indemnity) within a service area. This term generally reflects the definition of “health insurance coverage” in the PHS Act, which primarily refers to a specific contract of covered benefits, rather than a specific level of cost-sharing imposed.
For purposes of guaranteed availability and guaranteed renewability, the term “plan” means, with respect to an issuer and a product, the pairing of the health insurance coverage benefits under the product with a particular level of coverage (as described in sections 1302(d) and (e) of the Affordable Care Act) and service area. The combination of all plans within a product constitutes the total product that must be made available under guaranteed availability and renewed under guaranteed renewability to anyone in the service area of the plan in question, while the combined service areas of all plans constitute the service area of the product. If a product, or a plan under a product, does not have a defined service area, then the service area is the entire State in which the product is offered. To avoid any confusion, we also will change the reference to `termination of plan” to “termination of product” at § 146.152.(b)(4), § 147.106(b)(4), and § 148.122(c)(3), and make a technical grammatical correction to § 146.152.(b)(4) and § 148.122(c)(3). This technical correction changes an “and” to an “or,” because an issuer is only required to comply with one and not both of the referenced paragraphs.
Under these definitions, an issuer must guarantee availability and guarantee renewability at the option of the plan sponsor or individual of the particular product that they purchased in the group or individual market, including each of the plans available in the sponsor or individuals service area that are part of all the plans that comprise the product at the time of renewal. The product discontinuance and uniform modification exceptions to guaranteed renewability also apply at the product level. An issuer may discontinue offering a particular product in a market only if the issuer uniformly withdraws the product from that market. Similarly, an issuer may modify the health insurance coverage for a product if the issuer ensures the modification is effective uniformly for all plans within that product. Issuers have flexibility, however, to make modifications at the plan level or to discontinue plans within a product consistent with the provisions of (e)(2) or (3).
As further described in subsequent responses to comments in this section, we are clarifying how three of the proposed criteria—related to cost-sharing, benefits, and service area—apply primarily at the plan level rather than the product level.
In response to these comments, we are finalizing the rule so that the provision now requires that, “The product continues to cover a majority of the same service area” to be considered a uniform modification of coverage. We are making this change in recognition that a service area can be based on units other than counties, consistent with § 147.102(b)(3), which indicates that
There are some instances in which an individual may lose coverage under his or her particular plan but not under the product. For example, an issuer may decide to no longer offer a particular plan within a product or to modify a plan's service area within a product such that the plan no longer covers certain individuals. If these plan-level changes do not give rise to a product-level discontinuance under this final rule, the product remains guaranteed renewable at the option of the plan sponsor or individual, as long other plans within that product cover their service area. Again, nothing in this rule prevents an issuer from re-enrolling individuals into another plan that covers their service area under the same product in which the individuals are enrolled. HHS expects that issuers would re-enroll individuals in a new plan providing the same metal level of coverage as their previous plan within the same product. If a plan at that metal level is not available, HHS expects that issuers will re-enroll individuals in a plan that is most similar in metal level to the individual's previous plan under the same product for that service area.
We note that this does not address the operations of an Exchange, which may specify additional standards and processes for product termination, termination of enrollment, and re-enrollment in QHPs through an Exchange.
By contrast, renewal notices are not required to be provided to participants, beneficiaries, or enrollees. Both the proposed rule and this final rule make clear that notices of renewal must only be provided to the plan sponsor (for example, employer) in the small group market or the individual market policyholder in the individual market.
We are finalizing the uniform modification provisions proposed in § 147.106 of the proposed rule with the following modifications and made corresponding changes in § 146.152 and § 148.122. We are adding regulation text explicitly stating that the interpretation of uniform modification provided for in this rule also requires that the modifications be made uniformly. We add language amending and clarifying the term “pursuant to applicable Federal and State law”; replace “product type” with “product network type”; and to specify that the product must continue to cover at least a majority of the same service area, and delete the reference to “counties.” We
We also are adding definitions of “product” and “plan” at § 144.103; changing the reference to “termination of plan” to “termination of product” at § 146.152(b)(4), § 147.106(b)(4), and § 148.122(c)(3); and are amending the definition of “product” in the rate review regulations to reflect the interpretation of uniform modification, as applied in the rate review context.
We proposed conforming revisions to the individual market provisions contained in 45 CFR Part 148 to remove provisions that are superseded by the prohibition on preexisting condition exclusions under new section 2704 of the PHS Act, added by the Affordable Care Act.
We are finalizing the amendments proposed in §§ 148.101 through 148.128 of the proposed rule without change.
As indicated in previous CMS guidance, which described our intended approach, we proposed to amend the criteria for fixed indemnity insurance to be treated as an excepted benefit in the individual health insurance market. Excepted benefits are exempt from many of the requirements of title XXVII of the PHS Act.
Specifically, under the proposed rule, individual fixed indemnity policies would be considered an excepted benefit if the benefits are provided under a separate policy, certificate, or contract of insurance and all of the following criteria are met: (1) The benefits are provided only to individuals who have other health coverage that is minimum essential coverage within the meaning of section 5000A(f) of the Code; (2) there is no coordination between the provision of benefits and an exclusion of benefits under any other health coverage; (3) the benefits are paid in a fixed dollar amount per day of hospitalization or illness or per service (for example, $100/day or $50/visit) regardless of the amount of expenses incurred and without regard to the amount of benefits provided with respect to the event or service under any other health coverage; and (4) a notice is displayed prominently in the plan materials in at least 14-point type that has the following language: “THIS IS A SUPPLEMENT TO HEALTH INSURANCE AND IS NOT A SUBSTITUTE FOR MAJOR MEDICAL COVERAGE. LACK OF MAJOR MEDICAL COVERAGE (OR OTHER MINIMUM ESSENTIAL COVERAGE) MAY RESULT IN AN ADDITIONAL PAYMENT WITH YOUR TAXES.”
This proposal was intended to prevent disruption and address stakeholder concerns that many fixed indemnity insurance policies marketed today in the individual market do not qualify as excepted under the regulations at § 148.220(b)(3) and, as further described in a frequently asked question (FAQ) published on January 24, 2013, because they pay on a per-service rather than a per-period basis.
We explained that, to meet the standard that fixed indemnity insurance must be sold only to individuals who have other health coverage that is minimum essential coverage, the issuer would have to be “reasonably assured” that an individual purchasing a fixed indemnity policy has minimum essential coverage. We sought comment on the extent of verification issuers may need for reasonable assurance, including the possibility of consumer self-attestation. We also sought comment on whether the “other health coverage that is minimum essential coverage” standard was sufficient protection or if another standard may be appropriate (for example, requiring that fixed indemnity insurance be sold to individuals with other health coverage that meets the EHB requirements).
We noted that under a safe harbor approach established by the Departments of HHS, Labor, and the Treasury (the Departments) for supplemental health insurance coverage to be considered an excepted benefit, the supplemental coverage must be issued by an entity that does not
Finally, we indicated that, in our view, most fixed indemnity products offered in the individual market today would largely satisfy these proposed criteria. We solicited comment, nonetheless, on how the proposal might affect existing market arrangements. We also solicited comment on whether applying the provisions for policy years beginning on or after January 1, 2015 would provide a sufficient transition period, and whether keeping the current regulatory criteria in place on a permanent or temporary basis could help to alleviate any potential market disruption.
We are finalizing the provisions proposed in § 148.220 of the proposed rule with the following modifications. In the introductory text, we clarify that the requirements of parts 146 and 147 do not apply to “any individual coverage” (as opposed to individual health insurance coverage) that meet the relevant requirements of that section, consistent with statutory language. In paragraph (b)(4)(i), we indicate that the fixed indemnity benefits must be provided only to individuals who attest, in their application, that they have other health coverage that is minimum essential coverage, or that they are treated as having minimum essential coverage based on their status as a bona fide resident of any possession of the United States pursuant to Code section 5000A(f)(4)(B). In paragraph (b)(4)(iii), we clarify that the fixed indemnity benefit must be paid in a fixed dollar amount per period of hospitalization or illness “and/or” per service. In § 148.220(b)(4)(iv), we clarify that the notice to fixed indemnity policyholders must be displayed in the application. In new paragraph (b)(4)(v), we state that the requirement of paragraph (b)(4) (iv) applies to all hospital or other fixed indemnity insurance policy years beginning on or after January 1, 2015 and the requirement of paragraph (b)(4)(i) applies to hospital or other fixed indemnity insurance policies issued on or after January 1, 2015, and to hospital or other fixed indemnity policies issued before that date, upon their first renewal occurring on or after October 1, 2016.
As noted in the proposed rule, both the reinsurance and risk adjustment programs are subject to the fiscal year 2015 sequestration. The risk adjustment and reinsurance programs will be sequestered at a rate of 7.3 percent in fiscal year 2015. The Federal government's 2015 fiscal year begins on October 1, 2014. HHS, in coordination with the OMB, has determined that, pursuant to section 256(k)(6) of the Balanced Budget and Emergency Deficit Control Act of 1985 as amended, and the underlying authority for these programs, funds that are sequestered in fiscal year 2015 from the reinsurance and risk adjustment programs will become available for payment to issuers in fiscal year 2016 without further Congressional action. Should Congress fail to enact deficit reduction that replaces the Joint Committee reductions, these programs would be sequestered in future fiscal years, and any sequestered funding would become available in the fiscal year following that in which it was sequestered.
We have received input from commenters suggesting that the coefficients in our risk adjustment models may not fully capture the relative actuarial risk of certain hierarchical condition categories (HCCs), in part because those conditions may be subject to changing therapies and higher trends in medical inflation. Although some inaccuracy in our coefficients is inevitable due to lags in the data, we believe that we will be able to mitigate this problem if we recalculate, on an annual basis, the weights assigned to the various HCCs and demographic factors in our risk adjustment models using the most recent data available, even in the years where we do not fully recalibrate the models. We intend to propose such a reweighting in the HHS notice of benefit and payment parameters for 2016, and we will consider having those updated coefficients apply also for the 2015 benefit year. These adjusted models would be subject to public notice and comment.
The Affordable Care Act directs that a transitional reinsurance program be established in each State to help stabilize premiums for coverage in the individual market from 2014 through 2016. In the 2014 Payment Notice and the 2015 Payment Notice, we expanded on the standards set forth in subparts C and E of the Premium Stabilization Rule, and established the reinsurance payment parameters and uniform reinsurance contribution rate for the 2014 and 2015 benefit years. In this final rule, we finalize our allocation proposal, with one modification, so that, in the event of a shortfall in our collections, reinsurance contributions will first be allocated to the reinsurance payment pool, and second to administrative expenses and the U.S. Treasury.
In the 2014 Payment Notice and the 2015 Payment Notice, we provided that, if total contributions collected for 2014 and 2015 exceed $12.02 billion and $8.025 billion, respectively, we would allocate $2 billion to the U.S. Treasury, $20.3 or $25.4 million, as applicable, to administrative expenses, and all remaining contributions for reinsurance payments, thus prioritizing excess contributions towards reinsurance payments. Due to the uncertainty in our estimates of reinsurance contributions to be collected, and to help assure that the reinsurance payment pool is sufficient to provide the premium stabilization benefits intended by the statute, we proposed to adopt a similar prioritization in the event that reinsurance collections fall short of our estimates. Specifically, we proposed that, if collections fall short of our estimates for a particular benefit year, we would allocate contributions that are collected first to the reinsurance payment pool and administrative expenses, until our targets for reinsurance payments and administrative expenses are met. Once those targets are met, the remaining contributions collected for that benefit year would be allocated toward the U.S. Treasury.
We sought comment on this proposal, including our legal authority to implement a prioritization of reinsurance contributions to reinsurance payments over payments to the U.S. Treasury.
We are therefore finalizing our proposal, with one modification—we will not allocate reinsurance collections to administrative expenses or the U.S. Treasury until the reinsurance payment pool for a benefit year is funded. Thus, if our reinsurance collections fall short of our estimates for a particular benefit year, we will allocate reinsurance contributions collected first to the reinsurance payment pool, with any remaining amounts being then allocated to administrative expenses and the U.S. Treasury, on a pro rata basis. For example, as described in Table 1, for the 2014 benefit year, reinsurance contributions will go first to the reinsurance payment pool, up to $10 billion, and any additional contributions collected will be allocated to administrative expenses and the U.S. Treasury, on a pro rata basis, up to the total $12.02 billion.
Similarly, for the 2015 benefit year, in the event of a shortfall in our collections, reinsurance contributions will go first to the reinsurance payment pool, up to $6 billion, and any additional contributions collected will
We note that, in the 2015 Payment Notice, we amended 45 CFR 153.405(c) to provide a bifurcated contribution collection schedule, under which contributing entities will submit reinsurance contributions via two payments. The first payment would have covered the contribution amount allocated to reinsurance payments and administrative expenses; the second payment would have covered the contribution amount allocated to payments to the U.S. Treasury for the applicable benefit year. In light of our revised allocation policy, contributions collected in the second collection will now be allocated for reinsurance payments to the extent the first collection does not fully fund the reinsurance payment pool. Therefore, for example, for the 2014 benefit year, if the first collection resulted in a total collection of $9 billion, contributions collected via the second collection up to $1 billion would be allocated for reinsurance payments. As we noted in the 2014 Payment Notice (78 FR 15460), we have considered comments about deferring payments to the U.S. Treasury, but concluded that we have no authority to defer the collection of reinsurance contributions for those payments to the end of the program.
We are finalizing this provision as proposed, with one modification: if reinsurance collections fall short of our estimates for a particular benefit year, we will allocate the reinsurance collections for that benefit year first to the reinsurance payment pool, and second to administrative expenses and payments to the U.S. Treasury on a pro rata basis.
In the 2015 Payment Notice, we indicated that we would consider additional adjustments to the risk corridors program for benefit year 2015. We did so recognizing that issuers of QHPs could face administrative costs and risk pool uncertainties from a number of sources in 2015. We believe those QHP issuers will face pricing uncertainties related to:
• Uncertainties in the number of renewals of plans that do not comply with 2014 market reforms and rating rules—States continue to weigh whether to permit transitional plans or whether to extend the transitional policy, and in States where those decisions have been publicized, the willingness of issuers in those States to continue to offer transitional plans remains unclear;
• The effects on the risk pool of the phase-out of high risk pools—this phase-out leads to uncertainty in the estimate of likely claims costs from these individuals;
• The greater difficulty and additional time it will take to fully assess the risk profile of 2014 enrollees given the six-month initial open enrollment period—issuers will have a shorter 2014 claims history on which to base modeling; and
• Uncertainty estimating the number of individuals in reinsurance-eligible plans, and the number of covered lives for which reinsurance contributions will be paid.
As we discussed in the proposed rule, because relevant data will be difficult to obtain in the near term, we believe these uncertainties will continue through the summer of 2014, while issuers are in the process of setting their rates for the 2015 benefit year.
We also recognized in the proposed rule that issuers of QHPs may face additional administrative costs in order to complete the transition into compliance with the 2014 market rules. In particular, issuers continue to face unanticipated infrastructure requirements around Exchanges in all States, including the distributed data collection methodology for risk adjustment and reinsurance.
Therefore, in the proposed rule, we proposed to implement a national adjustment to the risk corridors formula set forth in subpart F of part 153 for each of the individual and small group markets by increasing the ceiling on allowable administrative costs (currently set at 20 percent, plus the
We proposed these increases for 2015 for QHP issuers in every State because we believed that many of these additional administrative costs and risk pool uncertainties will be faced by issuers in all States, not just States adopting the transitional policy. Finally, under our authority under section 2718(c) of the PHS Act, we proposed that the MLR formula not take into account any additional risk corridors payments resulting from this adjustment. We requested comment on all aspects of this proposal.
As we stated in the bulletin, we anticipate that risk corridors collections will be sufficient to pay for all risk corridors payments. That said, we appreciate that some commenters believe that there are uncertainties associated with rate setting, given their concerns that risk corridors collections may not be sufficient to fully fund risk corridors payments. In the unlikely event of a shortfall for the 2015 program year, HHS recognizes that the Affordable Care Act requires the Secretary to make full payments to issuers. In that event, HHS will use other sources of funding for the risk corridors payments, subject to the availability of appropriations.
We are finalizing our policy to increase the administrative cost ceiling and the profit margin floor by 2 percentage points, as proposed.
See the discussion in section III.C.1.b, “Product Discontinuance and Uniform Modification of Coverage Exceptions to Guaranteed Renewability Requirements.”
Under 45 CFR 155.120(c), States and Exchanges, when carrying out the requirements of Part 155, must comply with any applicable non-discrimination statutes, and must not discriminate on the basis of race, color, national origin, disability, age, sex, gender identity or sexual orientation. The non-discrimination provisions of § 155.120(c) apply not just to the Exchanges themselves, but to Exchange contractors and all Exchange activities (including but not limited to marketing, outreach and enrollment), Navigators, non-Navigator assistance personnel, certified application counselors, and organizations designated to certify their staff and volunteers as certified application counselors (78 FR 42829). Under 45 CFR 155.105(f) this non-discrimination requirement applies to the FFEs.
In the proposed rule, we proposed creating a limited exception to these non-discrimination requirements for an organization receiving Federal funds to provide services to a defined population under the terms of Federal legal authorities (for example, a Ryan White HIV/AIDS Program or an Indian health provider) that participates in the certified application counselor program under 45 CFR 155.225, to permit that organization to limit its provision of certified application counselor services to the same defined population without violating the non-discrimination provisions in existing § 155.120(c). The intent of this proposal was to allow such organizations to provide certified application counselor services and assist their defined populations in enrolling in health coverage offered through the Exchanges consistent with the Federal legal authorities under which such organizations operate.
To the extent that one of these organizations decides to take advantage of this exception, but is approached for certified application counselor services by an individual who is not included in the defined population that the organization serves, we proposed that the organization must refer the individual to other Exchange-approved resources, such as the toll-free Exchange call center, a Navigator, non-Navigator assistance personnel, or another designated certified application counselor organization, that is able to provide assistance to the individual. However, to the extent that one of these organizations decides that it will not take advantage of this proposed exception, we proposed that the non-discrimination provisions in existing § 155.120(c) would apply. Therefore, if an organization decides that it will provide certified application counselor services to individuals that are not included in the defined population that it serves, it must provide those services to all individuals consistent with the non-discrimination provisions in existing § 155.120(c).
We also proposed to make a number of technical changes to existing § 155.120(c) to accommodate this new limited exception.
We are also making technical revisions to § 155.120(c) to clarify here
Consistent with this technical revision, we have made a change to the text of § 155.120(c) to clarify that the exception to the non-discrimination requirement at § 155.120(c)(2) only applies in regard to the non-discrimination provisions created under this Rule. We cannot create exceptions in regard to requirements that exist under other laws.
We are finalizing our proposals to make technical changes to § 155.120(c) and add a new limited exception to the non-discriminations provision in § 155.120(c). We are also further revising new § 155.120(c)(2) to clarify that organizations that limit their provision of certified application counselor services to a defined population under this exception must still comply with the non-discrimination provisions in paragraph (c)(1)(ii) with respect to the provision of these services to that defined population.
In § 155.206, as part of HHS's enforcement authority under section 1321(c)(2) of the Affordable Care Act, we proposed to provide for the imposition of CMPs on Navigators, non-Navigator assistance personnel, and certified application counselors and certified application counselor designated organizations in FFEs, including State Partnership Exchanges, that do not comply with applicable Federal requirements. We explained that this proposal was designed to deter these entities and individuals from failing to comply with the Federal requirements that apply to them, and to ensure that consumers interacting with the Exchange receive high-quality assistance and robust consumer protection. We noted that as a general principle, while HHS intends to assess CMPs when appropriate, consistent with this final rule, we also intend to continue to work collaboratively with consumer assistance entities and personnel to prevent noncompliance issues and address any that arise before they reach the level where CMPs might be assessed.
The Secretary, under the authority of sections 1311(i) and 1321(a)(1) of the Affordable Care Act, has previously established a range of consumer assistance programs to help consumers apply for and enroll in QHPs and insurance affordability programs through the Exchange. These consumer assistance programs include the Navigator program described at section 1311(i) of the Affordable Care Act and 45 CFR 155.210; the consumer assistance, outreach, and education functions authorized by section 1321(a)(1) of the Affordable Care Act and established at 45 CFR 155.205(d) and (e), which can include a non-Navigator assistance personnel program; and the certified application counselor program authorized by section 1321(a)(1) of the Affordable Care Act and set forth at 45 CFR 155.225. Under these authorities and the authority granted to the Secretary by section 1321(c)(1) of the Affordable Care Act, the FFE has implemented a Navigator and certified application counselor program in all States that did not elect to establish an Exchange, and has implemented a non-Navigator assistance program in some of those States through an enrollment assistance contract.
Under section 1321(c)(2) of the Affordable Care Act, the provisions of section 2723(b) of the PHS Act
Accordingly, HHS has the authority under section 1321(c)(2) of the Affordable Care Act to assess CMPs against Navigators, non-Navigator assistance personnel, and certified application counselors and certified application counselor designated organizations in FFEs, including State Partnership Exchanges, for violations of the requirements of the Navigator, non-Navigator, and certified application counselor programs that the Secretary
In § 155.206(a), we proposed to establish the scope and purpose of the CMP provisions and explained when and against whom HHS would assess a CMP under this rule. At § 155.206(a)(2), we proposed that HHS could permit an entity or individual to whom it has issued a notice of assessment of CMP to enter into a corrective action plan instead of paying the CMP. We specified that permitting an entity to enter into a corrective action plan would not limit HHS's authority to require payment of the assessed CMP if the corrective action plan is not followed. We explained that this approach would allow us not only to penalize violations if necessary, but also to prioritize working collaboratively with consumer assistance entities to ensure that improvements are made and future violations are prevented. We also explained that this approach would be consistent with the limitation on imposing CMPs that is set forth at PHS Act section 2723(b)(2)(C)(iii)(II).
We requested comments on whether we should provide for an expedited process through which HHS may assess and impose CMPs, if extenuating circumstances exist or if necessary to protect the public. We also considered implementing an approach that would give the HHS Office of Inspector General (OIG) concurrent authority with CMS to enforce violations under this section, and we requested comments on such an approach and how it might be structured.
In § 155.206(b), we proposed that the individuals and entities who would be subject to HHS' enforcement authority under this proposal would include the following entities in FFEs, including in State Partnership Exchanges: Navigators, non-Navigator assistance personnel (also referred to as in-person assistance personnel) authorized under § 155.205(d) and (e), and certified application counselors and organizations designated as certified application counselor organizations. We explained that we refer to these individuals and entities as “consumer assistance entities,” but these CMPs could be assessed against both entities and individuals. We requested comment on whether all of the individuals and entities listed in proposed § 155.205(b) should be subject to CMPs, and on whether other entities and individuals should be added to that list.
In § 155.206(c), we proposed the grounds on which HHS could assess CMPs on the entities and individuals specified in § 155.206(b). Section 1321(c)(2) of the Affordable Care Act authorizes the Secretary to enforce the requirements of section 1321(a)(1) of the Affordable Care Act, which include the requirements established by the Secretary regarding Exchange consumer assistance functions. This statutory provision authorizes HHS to assess a CMP or, in lieu of a CMP, a corrective action plan against Navigators, non-Navigator assistance personnel, certified application counselors, and certified application counselor organizations in FFEs if HHS determines that these individuals or entities are not in compliance with the Exchange standards applicable to them. We proposed that these Exchange standards would include any applicable regulations implemented under title I of the Affordable Care Act, as interpreted through applicable HHS guidance, such as the regulations governing consumer assistance tools and programs of an Exchange at § 155.205; those governing Navigators at § 155.210 and Navigators in FFEs at § 155.215; those governing certified application counselors at § 155.225; and those under § 155.215 governing non-Navigator assistance personnel in FFEs; as well as any applicable HHS guidance interpreting an existing regulatory or statutory provision.
We note that § 155.285 of this final rule extends CMPs to consumer assistance entities who misuse or impermissibly disclose personally identifiable information in violation of section 1411 of the Affordable Care Act. Therefore, we have not addressed penalties for those actions here. That section also extends CMPs to anyone providing false or fraudulent information on an Exchange application. Consequently, some conduct by consumer assistance entities may warrant CMPs under either § 155.285 or § 155.206, and in such cases we believe HHS has discretion to determine whether to assess a CMP under this regulation or under § 155.285 of this subpart. However, we proposed in § 155.206(c) that HHS would not assess a CMP under this section if a CMP has already been assessed for the same conduct under § 155.285.
In § 155.206(d), we proposed the basis for initiating an investigation of a potential violation. We proposed that HHS could initiate an investigation based on any information it receives indicating that a consumer assistance entity might be in noncompliance with applicable Exchange standards.
In § 155.206(e), (f) and (g), we proposed the process that HHS would follow to investigate potential violations in order to determine whether the consumer assistance entity has engaged in noncompliance of applicable Exchange standards. Under § 155.206(e), we proposed that if HHS learns of a potential violation through the means described in paragraph (d) in this section and determines that further investigation is warranted, HHS would provide written notice of its investigation to the consumer assistance entity. Such notice would describe the potential violation, provide 30 days from the date of the notice for the consumer assistance entity to respond and provide HHS with information and documents, including information and documents to refute an alleged violation, and would state that a CMP might be assessed if the consumer assistance entity fails to refute the allegations in HHS' determination.
In § 155.206(f), we proposed a process for a consumer assistance entity to request an extension from HHS when the entity cannot prepare a response to HHS's notice of investigation within the 30 days provided in the notice. We proposed that if HHS granted the extension, the responsible entity would be required to respond to the notice of investigation within the time frame specified in HHS's letter granting the extension of time, and failure to respond within 30 days, or within the extended time frame, could result in HHS's imposition of the CMP that would apply based upon HHS's initial determination of a potential violation as set forth in the notice of investigation under § 155.206(e).
In § 155.206(g), we proposed that HHS could review and consider documents or information received or collected in accordance with paragraph (d)(1) of this section or provided by the consumer assistance entity in response to receiving a notice in accordance with paragraph (e)(2) of this section. We also proposed that HHS may conduct an independent investigation into the alleged violation, which may include site visits and interviews, if applicable, and may consider the results of this investigation in its determination.
In § 155.206(h), we proposed the factors that HHS would use to determine the appropriate CMP amount, and to determine whether it would be appropriate to offer the entity or individual an opportunity to enter into a corrective action plan in place of the CMP. These proposed factors included HHS's assessment of the consumer
Section 2723(b)(2)(C)(i) of the PHS Act limits the amount of CMPs authorized under section 1321(c)(2) of the Affordable Care Act to $100 for each day for each individual directly affected. Therefore in § 155.206(i), we proposed that the maximum daily amount of penalty assessed for each violation would be $100 for each day, for each consumer assistance entity, for each individual directly affected by the entity's non-compliance. We also proposed that, consistent with the approach under existing rules at 45 CFR 156.805(c), where HHS cannot determine the number of individuals directly affected, HHS may reasonably estimate this number based on available information, such as data from an FFE Navigator grantee's quarterly or weekly report concerning the number of consumers assisted. We requested comment on whether we should implement a cap on the total penalty that could be assessed by HHS.
In proposed § 155.206(j), we proposed that nothing in this section would limit HHS's authority to settle any issue or case described in the notice furnished in accordance with paragraph (e), or to compromise on any CMP provided for in this section.
Section 2723(b)(2)(C)(iii) of the PHS Act places certain limitations on CMPs authorized under section 1321(c)(2) of the Affordable Care Act, including the limitation that HHS will not assess a CMP where the entity did not know, or exercising reasonable diligence would not have known, of the violation. We proposed to implement these limitations in § 155.206(k). We also proposed, based on the HIPAA enforcement structure at 45 CFR 150.341, that the burden is on the consumer assistance entity to establish that the circumstances triggering these limitations existed.
In § 155.206(l), we proposed standards for notifying consumer assistance entities of the intent to assess a CMP, which notice would include an explanation of the entity's right to an appeal pursuant to the process set forth at 45 CFR Part 150, Subpart D, as provided in proposed § 155.206(m). We sought comment on whether all aspects of that process should be applicable to appeals of these CMPs. Finally, in § 155.205(n), we proposed that HHS may require payment of the proposed CMP if the consumer assistance entity does not timely request a hearing.
We also requested comment on whether other provisions of 45 CFR Part 150 should be adopted and made applicable to the proposed enforcement scheme, and whether a specific limitations period should apply, and if so, what limitations period would be appropriate for violations of applicable Exchange standards by consumer assistance entities in FFEs.
While we will monitor the activities of FFE employees carefully and reserve the right to add them to this rule in the future, we do not believe it is necessary to extend these penalties to FFE employees at this time, because in our view, the range of employment-based remedies available to the FFE provides adequate enforcement authority in the event of employee misconduct. In addition, FFE employees might be subject to CMPs under § 155.285 if they provide false or fraudulent information in an Exchange application or misuse consumers' personally identifiable information. We are finalizing § 155.206(b) as proposed.
We have not included in the final rule a more specific list of the requirements that could be enforced under this section because we anticipate that these may change over time. However, we anticipate that any list of such requirements would include, but not be limited to, the requirements specific to consumer assistance entities at 45 CFR 155.205(c)–(e), 155.210, 155.215, and 155.225; the Exchange nondiscrimination requirements at 45 CFR 155.105(f) and 155.120(c); and the Exchange privacy and security requirements implemented pursuant to 45 CFR 155.260. Consumer assistance entities would also be required to comply with other future requirements when any such requirements go into effect.
The regulations finalized elsewhere in this rulemaking at § 155.285 regarding application fraud and misuse of PII have adopted a six-year statute of limitations following the date of the occurrence. We believe that consistency with § 155.285 regarding the statute of limitations period is important because the same conduct by a consumer assistance entity in an FFE might trigger CMPs under either that provision or under § 155.206. Additionally, we believe that six years provides ample time for HHS to discover, investigate, and assess any potential CMP against a consumer assistance entity. We have therefore added a new § 155.206(k)(3) to provide for a six-year statute of limitations period.
We are finalizing the provisions proposed in § 155.206 of the proposed rule, with the following modifications. We modified proposed § 155.206(c) to more clearly explain that HHS could assess a CMP against a consumer assistance entity for failure to comply with the Federal regulatory requirements applicable to the consumer assistance entity that have been implemented pursuant to section 1321(a)(1) of the Affordable Care Act, including provisions of any agreements, contracts, and grant terms and conditions that interpret those Federal regulatory requirements or establish procedures for compliance with them. We added language to final § 155.206(d)(1), to specify that information learned, not just received, by HHS indicating that a consumer assistance entity may have engaged or may be engaging in activity specified in paragraph (c) may warrant an investigation. We modified § 155.206(d)(1)(iii) to align with language elsewhere in this section that HHS may consider information “that a consumer assistance entity may have engaged or may be engaging” in noncompliance under § 155.206(c),
In the proposed rule, we proposed amending § 155.210(c)(1)(iii) to add new paragraphs (A) through (F) to specify a non-exhaustive list of certain non-Federal requirements that would prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d) of the Affordable Care Act, with respect to the Navigator program. We also proposed amending § 155.215(f) to make clear that we would consider the same types of non-Federal requirements listed in proposed § 155.210(c)(1)(iii)(A) through (F) (except for 155.210(c)(1)(iii)(D)) to prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d) of the Affordable Care Act, when applied to non-Navigator assistance personnel subject to § 155.215. Similarly, with respect to the certified application counselor program, we proposed amending § 155.225(d) to add a new paragraph (d)(8) to specify that certified application counselors must meet any licensing, certification or other standards prescribed by the State or Exchange, if applicable, so long as such standards do not prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d) of the Affordable Care Act. We further proposed in § 155.225(d)(8) to specify a non-exhaustive list of non-Federal requirements, similar to those listed in proposed § 155.210(c)(1)(iii)(A) through (F) (except for 155.210(c)(1)(iii)(D)), that would prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d) of the Affordable Care Act, when applied to certified application counselors. We explained that the proposed amendments were intended as a non-exhaustive list of certain non-Federal requirements that prevent the application of the provisions of title I of the Affordable Care Act in one or more of the following three ways: (1) On their face, they prevent Navigators, non-Navigator assistance personnel subject to § 155.215, and certified application counselors or their designated organizations from performing their Federally required duties; (2) on their face, they make it impossible for an Exchange to implement the consumer assistance programs it is authorized or required to operate in a manner consistent with Federal requirements; and (3) they conflict with Federal standards or requirements in specific factual circumstances based on how a non-Federal requirement is applied or implemented. In addition, we recognized that a Federal court may also find other non-Federal requirements that we did not expressly mention in the proposed rule to be preempted within the meaning of section 1321(d) of the Affordable Care Act. We further explained that the proposed provisions would not preclude a State from establishing or implementing State law protections for its consumers, so long as such laws do not prevent the application of Federal requirements for the applicable consumer assistance programs. As an example, we stated that a State may require assisters to undergo fingerprinting or background checks before they can operate in a State, so long as a State's implementation of these additional requirements does not prevent the Exchange from implementing these programs in the State consistent with Federal standards or make it impossible for the assisters to perform their Federally-required duties.
First, in proposed §§ 155.210(c)(1)(iii)(A) and 155.225(d)(8)(i), we proposed to specify that non-Federal requirements which require Navigators, non-Navigator assistance personnel subject to § 155.215, and certified application counselors to refer consumers to other entities not required to provide them with fair, accurate, and impartial information or act in the consumer's best interests, would prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d) of the Affordable Care Act because such non-Federal requirements would conflict with an assister's duty to provide fair, accurate, and impartial information or to act in the consumer's best interests. Second, we proposed to specify under §§ 155.210(c)(1)(iii)(B) and 155.225(d)(8)(ii) that non-Federal requirements that prevent Navigators, non-Navigator assistance personnel subject to § 155.215, and certified application counselors from providing services to all persons to whom they are required to provide assistance would also prevent the application of the provisions of title I of the Affordable Care Act because assisters are required to provide information and services in a fair and impartial manner and to provide information to employees about the full range of QHP options for which they are eligible, which we have interpreted to mean that assisters must have the ability to help any individual who presents themselves for assistance. With respect to proposed §§ 155.210(c)(1)(iii)(A) and (B), we explained that where a State has elected to establish and operate only a SHOP Exchange pursuant to 45 CFR 155.100(a)(2), and has opted under 45 CFR 155.705(d) to permit Navigator duties at § 155.210(e)(3) and (4) in the State SHOP-only Exchange to be fulfilled through referrals to agents and brokers, we would not consider the State's exercise of this option under § 155.705(d) to prevent the application of the provisions of title I of the Affordable Care Act, since that option is authorized under Federal law. Third, under §§ 155.210(c)(1)(iii)(C) and 155.225(d)(8)(iii), we proposed to specify that non-Federal requirements that prevent Navigators, non-Navigator assistance personnel subject to
The proposed rule also specified two additional provisions regarding certain non-Federal requirements that would prevent the application of the provisions of title I of the Affordable Care Act with respect to FFEs only. We explained that these two provisions would not apply in State Exchanges since we had observed an enhanced ability for a State Exchange to work with other offices within the State to establish Exchange standards and coordinate the implementation of State law applicable to assisters in a manner that does not conflict with Federal standards or prevent the State Exchange from implementing consumer assistance programs consistent with Federal requirements. Under proposed §§ 155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv), we proposed to specify that non-Federal requirements that impose standards that would prohibit individuals or entities from acting as Navigators, non-Navigator assistance personnel, or certified application counselors or certified application counselor designated organizations, when they would be eligible to participate in these respective capacities under FFE standards, would prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d) of the Affordable Care Act. We illustrated this provision in two examples. First, we explained that a non-Federal requirement that prohibits consumer assistance entities and individuals from receiving any consideration, directly or indirectly, from a health insurance issuer offering health insurance coverage in or outside of an Exchange, even if not in connection with the enrollment of individuals into a QHP, would not only exceed applicable Federal conflict-of-interest standards but would also render ineligible certain entities, such as hospitals and community health care clinics, that would otherwise be eligible to serve as Navigators, non-Navigator assistance personnel subject to § 155.215, or certified application counselors and organizations. Second, we explained that a non-Federal law that prohibits an individual or entity from serving in an assister program on the basis that the individual or entity does not maintain its principal place of business in that State (which could include an organization that is organized in the State, but maintains its principal place of business outside of the State), would prevent the FFE from implementing consumer assistance programs that it is required or authorized to implement.
Finally, under proposed §§ 155.210(c)(1)(iii)(F) and 155.225(d)(8)(v), we proposed to specify that in an FFE, non-Federal requirements that, as applied or as implemented in the State, prevent the application of Federal standards applicable to Exchanges, Navigators, non-Navigator assistance personnel subject to § 155.215, or certified application counselors and certified application counselor designated organizations, would prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d). For example, with respect to the Navigator program, if a State with an FFE implemented a requirement that prevented the only Navigator entity operating in the State from continuing to perform its Federally-required duties, then such a provision, as applied, would prevent the Exchange from operating a Navigator program as required by section 1311(i)(1) of the Affordable Care Act and § 155.210(a). As a second example, we explained that if a State imposed certain requirements as mandatory conditions for continuing to perform any applicable Federally-required duties, such as additional training or background or fingerprinting checks, which, on their face, we consider as generally permissible, but also set a deadline for compliance that made it impossible for any individual or entity approved by the FFE to comply on a timely basis, despite good faith efforts to comply, then as long as those assisters were prevented from fulfilling any of their Federally-required duties until they could come into compliance with the State requirements, the FFE would be prevented from operating the consumer assistance programs that it is required or authorized to implement consistent with Federal standards.
A few commenters objected to the proposed provisions and asserted that they were overly broad, and/or exceed the authority of HHS, in violation of the Tenth Amendment of the U.S. Constitution and the McCarran-Ferguson Act that provides, “[t]he business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.” (15 U.S.C. 1012(a) (1945)) Citing 15 U.S.C. 1012(b), these commenters asserted that the McCarran-Ferguson Act exempts the business of insurance from most Federal regulation, providing that Federal statutes cannot be construed to invalidate, impair or supersede State insurance law unless they specifically relate to the business of insurance.
We are not finalizing proposed §§ 155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv). The concerns raised by commenters about the breadth of these provisions, and the questions raised in comments raised about the interpretations we provided in the preamble to the proposed rule of the substantive Federal requirements whose application would be prevented by certain non-Federal requirements, have instead provided us with an opportunity to further define those substantive Federal requirements, consistent with our preamble discussion in the proposed rule, through the addition of language in §§ 155.210(d)(4) and (e)(7) and §§ 155.225(b)(3) and (g)(2) in the final rule.
With respect to the proposed requirement that Navigators, non-Navigator assistance personnel subject to § 155.215 and certified application counselors maintain a physical presence in the Exchange service area, we are finalizing this requirement under §§ 155.210(e)(7) and 155.215(h) with respect to Navigators and non-Navigator assistance personnel subject to § 155.215, but we are not finalizing this requirement with respect to certified application counselors under proposed § 155.225(b)(1)(iii). We are also modifying the proposed regulation text in §§ 155.210(e)(7), 155.215(h) and are finalizing a new provision at § 155.225(b)(3) to clarify that in an FFE, Navigators, non-Navigator assistance personnel subject to 155.215 and certified application counselors, respectively, are not required to maintain their principal place of business in the Exchange service area, defined as the entire area served by the Exchange. A requirement that these assister entities maintain their principal place of business within the Exchange service area for an FFE would limit the pool of entities which would be eligible to serve in this capacity, and could prevent the FFE from fully implementing the consumer assistance programs that it is required (or authorized) to implement, within the meaning of section 1321(d) of the Affordable Care Act.
With respect to the requirement under existing §§ 155.210(d)(4) and 155.215(a)(2)(i) (which applies § 155.210(d)(4) to non-Navigator assistance personnel subject to § 155.215 by cross-reference), and finalized in this rule at § 155.225(g)(2), that Navigators, non-Navigator assistance personnel subject to § 155.215 and certified application counselors, respectively, are prohibited from receiving any consideration directly or indirectly from a health insurance issuer (or stop-loss insurance issuer) in connection with enrollment of any individuals in a QHP or non-QHP, we are modifying the text in § 155.210(d)(4) and adding text in § 155.225(g)(2) to clarify that in the FFE, this requirement does not mean that a health care provider shall be ineligible to operate in an assister program solely because it receives consideration from a health insurance issuer for health care services provided. We make these clarifications to make it easier for the public to understand the purpose and scope of the applicable Federal standards in the FFE and to identify circumstances in which additional non-Federal requirements would be in conflict with Federal requirements. This places in regulation text previous interpretations of these provisions, in which we have stated that “the prohibition on receiving direct or indirect consideration from a health insurance or stop loss insurance issuer [applies to] consideration received for enrolling individuals or employees in health insurance plans or stop loss insurance inside or outside the Exchanges; it does not apply to consideration received by a provider to support specific activities, such as the provision of medical services, that are not connected to the enrollment of individuals or employees in QHPs.” (78 FR 42832) In addition, this prohibition does not apply in situations where an individual or entity that is otherwise eligible to serve as a Navigator, non-Navigator assistance personnel subject to § 155.215, certified application counselor or certified application counselor designated organization, in accordance with applicable Exchange standards, receives consideration from a health insurance or stop loss insurance issuer that is not in connection with the enrollment of any individual(s) in a QHP or non-QHP.
We do not agree that HHS is exceeding its authority in finalizing the proposed provisions. These provisions set forth HHS's interpretation of the preemption standard established by Congress in section 1321(d) of the Affordable Care Act, which provides that State laws that do not prevent the application of the provisions of title I of the Affordable Care Act are not preempted. This preemption standard applies to all of the Federal requirements applicable to Navigators, non-Navigator assistance personnel and certified application counselors, as well as to all of the Federal requirements that Exchanges implementing these programs must follow, as all these standards are authorized and established under title I of the Affordable Care Act. In section 1321(d) of the Affordable Care Act, therefore, in HHS's view, Congress made clear that while States continue to have authority to enact laws that affect programs established under the provisions of title I of the Affordable Care Act, that authority is not unlimited. Rather, States do not have the authority to enact laws that prevent the application of the provisions of title I of the Affordable Care Act, including the provisions that provide authority and establish Federal requirements for the Navigator programs, non-Navigator programs, and certified application counselor programs.
Moreover, in promulgating the provisions in this final rule, HHS is simply interpreting how the preemption standard that Congress established in section 1321(d) of the Affordable Care Act applies to a non-exhaustive list of certain non-Federal requirements for these assister programs. HHS has a unique understanding of the statutes it administers and is responsible for interpreting, and Congress has expressly delegated to HHS, under section 1321(a)(1) of the Affordable Care Act, authority for issuing Federal regulations setting standards for meeting the requirements under the Affordable Care Act with respect to the establishment and operation of Exchanges, including the establishment and operation of the Navigator, non-Navigator, and certified application counselor programs. HHS expects that this final rule will provide valuable guidance to both States and assisters, as well as other stakeholders, by helping to resolve questions about the types of non-Federal laws that, in HHS's view, would prevent the application of the provisions of title I of the Affordable Care Act, within the meaning of section 1321(d) of the Affordable Care Act. We recognize that a Federal court might find that other non-Federal requirements not listed in this rule would prevent the application of Federal requirements within the meaning of section 1321(d).
First, we are adding language to current § 155.210(d)(4), which applies to non-Navigator assistance personnel subject to § 155.215 by cross-reference, as well as to new § 155.225(g)(2) (which is being finalized in this rulemaking) to codify the principle we previously espoused in the preamble to the proposed rule: that a hospital or other health care provider shall not be ineligible to participate in the Navigator, non-Navigator assistance personnel, or certified application counselor program solely because it receives payment for health services from health insurance issuers. Our approach to finalizing this provision reflects the fact that HHS continues to have concerns regarding certain types of non-Federal requirements that were described in the preamble to the proposed rule. Specifically, we continue to have concerns about non-Federal requirements that would prohibit a hospital or other health care provider from participating in an assister program solely because it receives payment for health services from a health insurance issuer, because such non-Federal requirements could prevent the Exchange from operating an assister program that includes individuals and entities that are otherwise extremely well qualified.
We also continue to have concerns about non-Federal requirements that require Navigators, non-Navigator assistance personnel subject to § 155.215, and certified application counselors or certified application counselor designated organizations to maintain their principal place of business in the State, even though we are not finalizing the specific provisions that were directed at these types of non-Federal requirements in proposed §§ 155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv). We have therefore decided to add text to the Federal standards being finalized in this rulemaking at §§ 155.210(e)(7) and 155.215(h) to clarify that although Navigators and non-Navigator personnel subject to § 155.215 must maintain a physical presence in the Exchange service area, they shall not be rendered ineligible to participate in the
We are also amending § 155.210(e)(2) in the final rule, to specify, consistent with our discussion in the preamble to the proposed rule (see, for example, 79 FR 15828–15829), that in addition to the existing requirements under this provision and 155.210(e)(3) that Navigators must provide information and services in a fair, accurate, and impartial manner and must facilitate selection of a QHP, the duties of a Navigator include providing information that assists consumers with submitting the eligibility application; clarifying the distinctions among health coverage options, including QHPs; and helping consumers make informed decisions during the health coverage selection process. Under existing provisions at 45 CFR 155.215(a)(2)(i), these duties will also apply to non-Navigators subject to § 155.215. In addition, in this rulemaking, we are finalizing a new § 155.225(c)(1), to make certified application counselors subject to a similar set of duties.
We have also made a minor change to the parallel provisions for Navigators, non-Navigator personnel subject to § 155.215, and certified application counselors that are being finalized under § 155.210(c)(1)(iii)(E), § 155.215(f)(4) and § 155.225(d)(8)(iv). Specifically, we changed the reference to standards that would, as applied or as implemented in a State, prevent the application of Federal requirements applicable to the Exchange's implementation of the respective Navigator, non-Navigator assistance personnel or certified application counselor program “consistent with Federal requirements,” by deleting “consistent with Federal requirements” to eliminate redundancy.
It is unclear to HHS why some commenters believe that a certified application counselor program operating in an FFE should not be subject to non-Federal requirements simply because it was established through an HHS regulation implementing the Affordable Care Act, rather than being expressly provided for by the statute. As we have previously explained, the Secretary established the certified application counselor program under the authority provided in section 1321(a)(1) of the Affordable Care Act. Section 1321(a)(1) directs and authorizes the Secretary to issue regulations setting standards for meeting the requirements under title I of the Affordable Care Act, with respect to, among other things, the establishment and operation of Exchanges. Therefore, the certified application counselor program is authorized by the statute, even if the program was established through rulemaking. Whether a certified application counselor organization should be subject to non-Federal requirements will turn on application of the preemption standard set forth in section 1321(d) of the Affordable Care Act, namely whether the non-Federal requirement prevents the application of the provisions of title I of the Affordable Care Act, regardless of whether it is operating in an FFE.
A few commenters, while supporting the proposed provision's specification that mandated referrals to third parties not required to provide information in a fair, impartial, accurate manner are in conflict with applicable Federal standards, also requested that we explain that this provision applies only to non-Federal requirements that mandate such referrals, and asked that we confirm that assisters would be permitted to refer consumers to agents and brokers voluntarily in specific circumstances, such as when the consumer's needs exceed the assister's expertise, or when the assister or entity lacks the capacity and resources to assist all individuals who seek assistance. In addition, a few commenters recommended that HHS clarify that this provision should not be construed to mean that assisters are barred from making referrals to entities not required to provide fair, accurate, and impartial information. These commenters suggested, for example, that assisters should be permitted to make such referrals when a consumer requests a specific recommendation regarding which plan to choose, because making a specific plan recommendation might violate an assister's duties under the
We agree with the commenters who supported our view in the proposed rule that a non-Federal requirement mandating that Navigators, non-Navigator assistance personnel subject to § 155.215, and certified application counselors refer consumers to third parties not obligated to provide fair, accurate, and impartial information would conflict with the Federal duties required of Navigators, non-Navigator assistance personnel subject to § 155.215, and certified application counselors and their designated organizations under various authorities: for Navigators, sections 1311(i)(3)(B) and 1311(i)(5) of the Affordable Care Act, as well as 45 CFR 155.210(e)(2) and 155.215(a)(1)(iii); for Non-Navigator assistance personnel, 45 CFR 155.215 (a)(2)(i) and (iv); and for certified application counselors, 45 CFR 155.225(c)(1) as amended in this final rule. In light of the regulation text changes, discussed in greater detail below, that we make under § 155.225(c)(1) to align that provision more consistently with the standards that apply across Exchange consumer assistance programs, and to explicitly specify that certified application counselors must provide information “in a fair, accurate, and impartial manner,” we are clarifying the language of final § 155.225(d)(8)(i). Specifically, we are finalizing § 155.225(d)(8)(i) to specify that a referral to a third party that is not required to “act in the best interest” of applicants assisted, as required under § 155.225(d)(4), or to a third party that is not required to provide information in a fair, accurate, and impartial manner, as required under the clarifications to § 155.225(c)(1) that we make in this final rule, would prevent certified application counselors from meeting Federal standards that apply to them. To reiterate and, in recognition of the fact that a third party may be required to act in the best interest of the applicants they assist or provide information in a fair, accurate, and impartial manner to the same extent that a certified application counselor is required to, we would not construe a non-Federal requirement that required such a referral to that particular type of third party to prevent the application of the provisions of title I of the Affordable Care Act.
In addition, these comments present us with the opportunity to explain that we interpret certain Federal standards applicable to Navigators, non-Navigator assistance personnel subject to § 155.215, and certified application counselors and their designated organizations to prohibit these assisters from making specific plan recommendations. With respect to Navigators and the non-Navigator assistance personnel who are subject to § 155.215, the recommendation of a specific plan would be inconsistent with CMS's interpretation of 45 CFR 155.210(e)(2) and (3) (applicable to Navigators in all Exchanges) and 45 CFR 155.215(a)(1)(iii) (applicable to Navigators in an FFE) and (a)(2)(i) and (iv) (applicable to non-Navigator assistance personnel subject to § 155.215, which require these assisters to provide information in a fair, accurate, and impartial manner, including by acknowledging other programs; to provide information to individuals and employees about the full range of QHP options and insurance affordability programs for which they are eligible; and to facilitate selection of a QHP. With respect to certified application counselors, the recommendation of a specific plan would violate their duties to act in the best interests of the consumer (45 CFR 155.225(d)(4)), to provide information to individuals and employees about the full range of QHP options and insurance affordability programs for which they are eligible, and help to facilitate their enrollment in QHPs and insurance affordability programs (45 CFR 155.225(c)(1) and (3)). Specifically, in our view, permitting assisters to recommend a specific plan would undermine one overall purpose of consumer assistance programs, which is to provide interpretive guidance that enables consumers to become fully informed and health literate, to assess the full range of their coverage options and the strengths and weaknesses of different options or plans based on the information provided to them, and ultimately to be able to make their own informed choices about which coverage option best meets their needs and budget. Further, Federal standards require an assister to act to “facilitate” plan selection or enrollment (as applicable), which we interpret to mean that the act of plan selection and enrollment itself rests with the consumer (see our previously expressed interpretations of these requirements in preamble at 78 FR 42844–45). Consistent with these principles, we are amending § 155.210(e)(2) in the final rule, to specify that in addition to the existing requirement under this provision that Navigators provide information and services in a fair, accurate, and impartial manner, the duties of a Navigator include providing information that assists consumers with submitting the eligibility application; clarifying the distinctions among health coverage options, including QHPs; and helping consumers make informed decisions during the health coverage selection process. We are also adding these standards through amendments to § 155.225(c)(1) in the final rule, to clarify the existing duty of certified application counselors to provide information to individuals and employees about the full range of QHP options and affordability programs for which they are eligible which includes providing fair, impartial, and accurate information that assists consumers with submitting the eligibility application; clarifying the distinctions among health coverage options, including QHPs; and helping consumers make informed decisions during the health coverage selection process.
While consumers need to make the ultimate decision regarding the type of coverage that best meets their health care needs and budget, assisters may
To the extent an assister is asked by a consumer to recommend a plan, we interpret the above-cited authorities as requiring the assister to refrain from providing a recommendation or otherwise steering a consumer to a particular plan. In addition, if a consumer asks an assister to recommend a specific plan, an assister should remind the consumer that they are prohibited from making plan recommendations because Federal standards require them to remain fair and impartial. The assister may, consistent with the consumer's expressed needs and desires, determine that it is appropriate to inform the consumer of the general availability of licensed, Exchange-trained health insurance agents and brokers as a resource that could provide specific plan recommendations, if licensed health insurance agents or brokers are permitted to do so under State law. The assister may direct the consumer to listings of agents and brokers; however, the assister should not make a referral to any specific agent or broker or specific set of agents or brokers.
With one limited exception,
Further, we note that under existing regulations at § 155.210(d)(4) and 155.215(a)(2)(i) and regulations finalized in this final rule at § 155.225(g)(2), Navigators, non-Navigator assistance personnel subject to § 155.215, and certified application counselors are subject to a conflict of interest standard which prohibits them from receiving consideration, directly or indirectly, in connection with enrollment in a QHP or non-QHP; and the requirement that one of these assisters refer or direct a consumer to another individual, such as an agent or broker, who receives such consideration in connection with QHP enrollment, would be inconsistent with this conflict of interest requirement under Federal law.
In addition, we agree that while consumers need to make the ultimate decision about what type of coverage meets their health care needs and budget, providing comprehensive information about the substantive benefits and features of a plan, clarifying the similarities and distinctions among plans, and assisting consumers with making informed decisions in the plan selection process, consistent with the consumer's expressed interests and needs, are a critical part of assisters' required duties, particularly for consumers, who, without such assistance, might otherwise not complete the enrollment process or might not have all of the information they need to make a plan selection. Therefore, a non-Federal requirement that prohibits assisters from providing “advice” regarding substantive benefits or comparative features of different health plans would prevent the application of the provisions of title I of the Affordable Care Act, insofar as such a requirement, as interpreted or applied under State law, would prohibit assisters from doing any of the following: (1) Providing fair, impartial, and accurate information that assists consumers with submitting the eligibility application; (2) clarifying the distinctions among health coverage options, including QHPs; or (3) helping consumers make informed decisions during the health coverage selection process. We have always interpreted the Affordable Care Act and our regulations implementing its provisions to prohibit Navigators, non-Navigator personnel subject to § 155.215, and certified application counselors from recommending a particular plan or steering a consumer toward a particular plan or plans as because of their specified duties to distribute fair and impartial information to consumers and act in the consumer's best interests, while at the same time requiring them to provide consumers with all relevant and applicable information about the coverage options available to them. For example, we have stated that a Navigator cannot make the decision for an applicant as to which QHP to select, but they may play an important role in facilitating a consumer's enrollment in a QHP by providing fair, impartial, and accurate information that assists consumers with submitting the eligibility application, clarifying the distinctions among QHPs, and helping qualified individuals make informed decisions during the health plan selection process (78 FR 20583; see also 79 FR 15829).
In addition, at this time, we believe it is appropriate to limit the scope of this provision so that it is directed only at non-Federal laws requiring Navigators to hold an agent or broker license and are not finalizing the reference to laws that require Navigators to carry errors or omissions insurance, as proposed. As we explained in the preamble to the proposed rule, requiring that each Navigator be a licensed agent or broker would mean, in effect, that all Navigators would be agents and brokers, and would therefore prevent the application of § 155.210(c)(2), which established the requirement that in all Exchanges, at least two types of entities, including one community and consumer-focused nonprofit group, must serve as Navigators. HHS has previously advised (see 77 FR 18331–32) that such requirements would prevent the application of § 155.210(c)(2). Since we understand, based on the comments, that in at least some jurisdictions, errors and omissions insurance coverage is not exclusively available to agents and brokers and other types of professionals might carry it, we cannot discern a facial conflict between a non-Federal requirement requiring errors and omissions insurance and Federal requirements applicable to Navigators or the Exchange. However, as we made clear in prior rulemaking and now make explicit here in finalizing the regulation text, any non-Federal requirement that would, in effect, require all Navigators to be licensed agents or brokers would prevent the application of the Federal standards that apply to an Exchange's operation of the Navigator program (specifically, would prevent the application of 45 CFR 155.210(c)(2)) and therefore would prevent the application of the provisions of title I of the Affordable Care Act. By removing the reference to errors and omissions coverage, we do not intend to foreclose the possibility that there might be specific factual circumstances under which a non-Federal financial responsibility requirement that does not facially conflict with a Federal requirement might, as applied or implemented, prevent the application of Federal requirements for Navigators within the meaning of section 1321(d) of the Affordable Care Act.
In the proposed rule, we also proposed a number of provisions to bring the standards for Navigators, non-Navigator assistance personnel subject to § 155.215, and certified application counselors into alignment. Specifically, with respect to Navigators and non-Navigator assistance personnel subject to § 155.215, we proposed that they must obtain consumer authorization before accessing an applicant's personally identifiable information (PII), and that a record of authorization be provided, just as is already the case for certified application counselors under § 155.225(f). In addition, we proposed that Navigators and non-Navigator assistance personnel subject to § 155.215 must not charge any applicant or enrollee, or request or receive any form of remuneration from or on behalf of an applicant or enrollee, for application or other assistance related to the applicable assister's duties, just as is already the case for certified application counselors under § 155.225(g). With respect to the certified application counselor program, we proposed that certified application counselors must be recertified on at least an annual basis and complete Exchange-required training, just as is already the case for Navigators in FFEs and State Partnership Exchanges and Non-Navigator assistance personnel subject to § 155.215, under § 155.215(b). Further, we proposed that certified application counselors and their organizations would be prohibited from receiving consideration, directly or indirectly, from health insurance issuers or stop loss issuers in connection with the enrollment of any individuals in a QHP or a non-QHP, just as is already the case for all Navigators and for non-Navigator assistance personnel subject to § 155.215, under §§ 155.210(d)(4) and 155.215(a)(2)(i).
We also proposed a number of new standards for Navigators, non-Navigator assistance personnel subject to § 155.215, and certified application counselors. First, we proposed to require that these entities and individuals maintain a physical presence in their Exchange service area. We also proposed the following prohibitions on their conduct: providing compensation to individual Navigators, non-Navigator assistance personnel subject to § 155.215, or certified application counselors on a per-application, per-individual assisted, or per-enrollment basis; providing gifts, including gift cards or cash, unless they are of a nominal value, or providing promotional items that market or promote the products or services of a third party, to any applicant or potential enrollee in connection with or as an inducement for application assistance or enrollment; soliciting any consumer for application or enrollment assistance by going door-to-door or through other unsolicited means of direct contact, including calling a consumer to provide application or enrollment assistance without the consumer initiating the contact; and initiating any telephone call to a consumer using an automatic telephone dialing system, or an artificial or prerecorded voice.
We are making these modifications in an effort to balance the interests of the FFEs and State Exchanges. We understand that there are some State Exchanges currently using these types of compensation models for Navigators, non-Navigator assistance personnel, and/or certified application counselors. These States have noted successful enrollment efforts with these compensation models, and it is not our intent to disrupt compensation practices that are currently used or authorized by State Exchanges. However, for assisters operating in the FFEs, including State Partnership Exchanges, we have an interest and a concern in ensuring that they are not incentivized to hurry through an assistance session with a consumer, and possibly to avoid assisting those consumers who may have complex situations that require them to have extra time for completing an application. Additionally, these compensation structures create an incentive for Navigators, non-Navigator assistance personnel, and certified application counselors to focus primarily on facilitating enrollment in or selection of a QHP, as applicable, which is only one of the several duties required of Navigators and certified application counselors, and is not a required duty under Federal regulations for non-Navigator assistance personnel (although non-Navigator assistance personnel subject to § 155.215 may provide this assistance).
For all assisters to whom the final provisions will apply, the provisions prohibiting compensation on a per-application, per-individual-assisted, or per-enrollment basis will become applicable November 15, 2014 to coincide with the beginning of the 2015 open enrollment period for the individual market Exchanges.
Further, the nominal value limit does not apply to third-party promotional items, so these items may exceed $15 in value. We note that we would consider items such as diabetic testing supplies to be third-party promotional items to the extent that they have the effect of promoting the brand for the supplies that are provided. We also note that there may be other Federal laws regarding providing promotional-items to consumers, and these regulations do not supersede those laws. Therefore, assisters should ensure their compliance with all applicable laws.
We are also modifying this provision to make clear that reimbursement for legitimate expenses, such as (but not limited to) expenses for travel or postage that a consumer incurs in seeking Exchange application assistance may exceed the nominal value threshold of $15. We anticipate that the circumstances where such reimbursement exceeds this amount will be rare. However, we acknowledge that commenters have indicated there may be times when consumers might incur expenses that exceed $15 when seeking Exchange application assistance, and we would not want to prohibit a reimbursement for legitimate expenses that exceed this amount.
Because we are modifying the provisions to be less proscriptive, we are also adding a new provision at § 155.210(d)(7) (applicable to non-Navigator assistance personnel to whom § 155.215 applies through a cross-reference to § 155.210(d) in § 155.215(a)(2)(i)) to clarify that in no event is it permissible for a Navigator or for non-Navigator assistance personnel subject to § 155.215 to use Exchange funds to purchase gifts or third-party promotional items for provision to applicants or potential enrollees. Pursuant to Affordable Care Act section 1311(d)(5)(B), all Exchanges, both FFEs (including State Partnership Exchanges) and State Exchanges, are prohibited from using any funds intended for the administrative and operational expenses of the Exchange for promotional giveaways. HHS would consider any funds used by an Exchange to pay for Navigator grants, to contract with or otherwise pay non-Navigator assistance personnel subject to § 155.215 carrying out the consumer assistance functions under 45 CFR 155.205(d) and (e), and any Federal Exchange Establishment grant funds used to pay for non-Navigator activities,
We are not including a provision regarding the use of Exchange funds by certified application counselors because certified application counselors generally are not expected or required to receive Exchange funds.
We clarify that nothing in these provisions would prohibit a Navigator, non-Navigator assistance personnel, or certified application counselor from providing in-home application assistance, if such assistance is requested by a consumer. We note that in cases where a consumer is ill or has a disability that would make meeting an assister outside of the consumer's home difficult or impossible, in-home application and enrollment assistance might be appropriate. In these or other cases in which the consumer prefers in-home assistance or such assistance is appropriate for the consumer, the request for in-home assistance must come from the consumer and the consumer must give their consent. In such cases, we also recommend that two assistance personnel should go to the home, not one, because this is a best practice that promotes the safety of both the consumer and the assister.
We further explain that by “unsolicited means,” we refer to any means of contacting consumers directly to help them apply for or enroll in coverage through the Exchange, where the consumer did not initiate, request, or give prior consent to the contact, although we reiterate that this provision does not apply to public education and outreach activities. Additionally, we have added language to allow for assisters to contact consumers for application assistance in cases where the individual assister or assister entity has a relationship with the consumer, but we note that other State or Federal laws may apply with regards to these preexisting relationships, and those laws must also be complied with.
We are not adding language to include an automatic expiration date for the authorization because it could become burdensome for a consumer consistently seeking services from the same assister to have to routinely fill out a new authorization form, and for the assister to have to maintain each new form for a minimum of six years. We do note, however, that consumers are allowed to revoke their authorization at any time, and may place a time restriction on the authorization, if they desire.
We acknowledge that the language regarding the form and manner of obtaining or maintaining the authorization was not included with respect to certified application counselors at proposed § 155.225(f)(2). To align the provision with those provisions applicable to Navigators and non-Navigator assistance personnel subject to § 155.215, we are adding this language to § 155.225(f)(2).
Finally, we are deleting the cross references in proposed § 155.210(e)(6)(ii) to 45 CFR 92.42 and 45 CFR 74.53 due to the potential for these cross references to become obsolete or inaccurate in the future. We believe the remaining phrase “other applicable Federal law” will capture the intent of the cross references to ensure that Navigators comply with retention periods for maintaining these records in accordance with all Federal laws that may apply. This cross reference was only included in the proposed provision applicable to Navigators; therefore no change is necessary to the provisions at § 155.215(g)(2) or § 155.225(f)(2).
In light of the comments we received indicating that this requirement may be too restrictive for certified application counselor organizations already providing remote assistance, we are not finalizing proposed § 155.225(b)(1)(iii) which would have required certified application counselor organizations to maintain a physical presence in the Exchange service area. We understand that unique circumstances may exist that would make remote assistance more effective or practical than face-to-face assistance, particularly when a certified application counselor is providing services to individuals or populations that might otherwise be difficult to reach. We continue to believe that face-to-face, in-person assistance is important, and we encourage certified application counselors to provide this type of assistance as much as possible. We will continue to evaluate the effectiveness of remote assistance offered by certified application counselors and certified application counselor organizations, to determine whether a physical presence requirement may be necessary in the future.
We are finalizing these requirements at § 155.210(e)(7) and § 155.215(h) that Navigators and non-Navigator assistance personnel subject to § 155.215 must maintain a physical presence in the Exchange service area, so that face-to-face assistance can be provided to applicants and enrollees. We believe this provision will improve the ability of Navigators and non-Navigator assistance personnel subject to § 155.215 to provide culturally competent application and enrollment assistance. As we explained in the preamble to the proposed rule, this requirement may also facilitate State consumer protection efforts.
We agree with commenters that remote application and enrollment assistance can be extremely important and effective, especially as a way to provide this assistance to consumers in rural or remote areas. Therefore, we want to make clear that nothing in this provision prohibits Navigators or non-Navigator assistance personnel subject to § 155.215 from providing assistance via the telephone, Internet, or through other remote means, as long as the organization with which they are affiliated also maintains a physical presence in the Exchange service area, consistent with § 155.210(e)(7) and § 155.215(h). We also clarify that Exchange service area refers to the entire area served by the Exchange, and not to smaller regions within the area served by the Exchange.
We disagree with comments suggesting that these assister organizations should be required to maintain a principal place of business within their Exchange service area. Many trusted national organizations have State or local branches that operate as Navigators, non-Navigator assistance personnel subject to § 155.215, or certified application counselors, and who, partly because of their physical presence in the State, are able to provide high-quality assistance tailored to the needs of their communities. Therefore, we are finalizing § 155.210(e)(7) as proposed with a modification to specify that in an FFE, no individual or entity shall be ineligible to operate as a Navigator solely because its principal place of business is outside of the Exchange service area. With respect to the certified application counselor program, we are adding a new § 155.225(b)(3) to specify that in an FFE, no individual or entity shall be ineligible to operate in this program solely because its principal place of business is outside of the Exchange service area.
We indicated in the preamble to the proposed rule that we were proposing to make the same provision specifying that Navigators maintain a physical presence in their Exchange service area under § 155.210(e)(7) also applicable to non-Navigator assistance personnel subject to § 155.215, and we proposed adding a new paragraph under § 155.215 for that purpose. However, the rule text of the proposed rule omitted the new paragraph under § 155.215. In the final rule, therefore, we are correcting this oversight, and adding this standard to § 155.215 as a new paragraph § 155.215(h) to specify that all non-Navigator assistance personnel subject to § 155.215 who operate in FFEs must maintain a physical presence in the Exchange service area, so that face-to-face assistance can be provided to applicants and enrollees. Similarly, we are modifying this provision to add a specification that no individual or entity shall be ineligible to operate as non-Navigator assistance personnel subject to § 155.215 solely because its principal place of business is outside of the Exchange service area.
We revised § 155.210(c)(1)(iii) to remove reference to “errors and
We are not finalizing proposed §§ 155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv).
We renumbered proposed §§ 155.210(c)(1)(iii)(F) and 155.225(d)(8)(v) as new §§ 155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv). We modified newly renumbered §§ 155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv) to extend these provisions to all Exchanges by removing the reference to “in a Federally-facilitated Exchange” and by specifying that non-Federal standards that would, as applied or implemented in a State, prevent the application of Federal requirements applicable to Navigators (or non-Navigator assistance personnel subject to § 155.215), or certified application counselors or designated organizations or, as added in this final rule, “the Exchange's implementation of the [respective assister] program” would prevent the application of the provisions of title I of the Affordable Care Act. We revise § 155.215(f) to add subparagraphs (1) through (4) explicitly under that provision, rather than incorporating by reference parallel provisions in the applicable Navigator standards under § 155.210(c)(1)(iii), as was proposed.
We revised §§ 155.210(d)(4) and 155.225(g)(2) to add that in an FFE no health care provider individual or entity shall be ineligible to operate as Navigators (or non-Navigator assistance personnel subject to § 155.215), or certified application counselors or certified application counselor designated organizations solely on the basis of receiving consideration from a health insurance issuer for health care services provided.
We also revised § 155.210(e)(7) to provide that in an FFE, no individual or entity shall be ineligible to operate as a Navigator solely because its principal place of business is outside of the Exchange service area. We added § 155.215(h) to create a parallel provision to §§ 155.210(e)(7) for non-Navigator assistance personnel subject to § 155.215, as was discussed in the preamble to the proposed rule. We did not finalize § 155.225(b)(1)(iii), but we added a new § 155.225(b)(3) to specify that in an FFE, no individual or entity shall be ineligible to operate as a certified application counselor or designated organization solely because its principal place of business is outside of the Exchange service area.
We moved § 155.210(d)(6) to § 155.215(i) and limited this provision, as well as § 155.225(g)(3), to Navigators, non-Navigator assistance personnel, and certified application counselors operating in FFEs, including State Partnership Exchanges, and revised these provisions to specify that they do not take effect until November 15, 2014.
We renumbered proposed § 155.210(d)(7) to § 155.210(d)(6), and revised newly renumbered § 155.210(d)(6) along with § 155.225(g)(4) to clarify that gifts, gift cards, or cash, and promotional items that market or promote the products or services of a third party provided by assisters to consumers are prohibited for the purposed of inducing enrollment, and that gifts, gift cards, or cash may exceed nominal value for the purpose of providing reimbursement for legitimate expenses incurred by a consumer in effort to receive Exchange application assistance, such as (but not limited to) travel or postage expenses. We also add new § 155.210(d)(7) to prohibit the use of Exchange funds to purchase gifts or gift cards, or promotional items that market or promote the products or services of a third party, that would be provided to any applicant or potential enrollee.
We revised §§ 155.210(d)(8) and 155.225(g)(5) to clarify that the prohibitions on door-to-door solicitation for application or enrollment assistance do not prohibit Navigators, non-Navigator assistance personnel, or certified application counselors from going door-to-door to conduct general consumer education or outreach, or from soliciting consumers with whom the assister has a preexisting relationship so long as other applicable State and Federal laws are complied with.
We revised §§ 155.210(d)(9) and 155.225(g)(6) to clarify that the prohibitions on using an automatic telephone dialing system or an artificial or prerecorded voice to initiate a telephone call to a consumer, do not prohibit Navigators, non-Navigator assistance personnel, or certified application counselors from using those means to communicate with consumers with whom they already have a relationship, so long as other applicable State and Federal laws are complied with.
We revised §§ 155.210(e)(2) and 155.225(c)(1) to add that the duties of Navigators, non-Navigator assistance personnel subject to § 155.215, and certified application counselors includes a duty to provide information in a fair, accurate, and impartial manner to individuals and employees about the full range of QHP options and insurance affordability programs for which they are eligible, which includes providing fair, impartial, and accurate information that assists consumers with submitting the eligibility application, clarifying the distinctions among QHPs, and helping consumers make informed decisions during the health coverage selection process.
We made technical edits to preserve the grammatical pattern that appears in the existing list at § 155.210(d)(1)–(4) and extended it through § 155.210(d)(9) by placing semicolons after each subparagraph and moving the “or” following proposed § 155.210(d)(5) to follow § 155.210(d)(8).
We revised §§ 155.210(e)(6)(ii) and 155.215(g)(2) to change the word “Secretary” to “Exchange” to allow for State Exchanges to determine their own appropriate form and manner for obtaining the consumer authorization that is required for a Navigator or non-Navigator assistance personnel to obtain access to the consumer's personally identifiable information. We also specified that the Navigator and non-Navigator assistance personnel subject to § 155.215 must maintain a record of the authorization provided “in a form and manner as determined by the Exchange,” and that the period is no less than six years (not three years, as proposed), unless a different and longer retention period has already been provided. In § 155.210(e)(6)(iii), we removed reference to 45 CFR 92.42 and 45 CFR 74.53 and retain only “other applicable Federal law.” We also revised § 155.225(f)(2) to add parallel language to require certified application counselors to obtain and maintain record of the authorization in a form and manner as determined by the Exchange, and to specify that the retention period is no less than six years, unless a different and longer retention period has already been provided under other applicable Federal law.
We revised proposed § 155.225(d)(8)(i) to replace the phrase “act in the best interest of applicants” with the phrase “provide fair, accurate, and impartial information.”
In order to address situations in which enrollees have mid-month changes in enrollment, we proposed in § 155.240(e) standards for providing partial month premiums. First, we proposed to provide flexibility for Exchanges to establish a standardized methodology for partial month premiums or to rely on issuers to prorate premiums in accordance with
We are finalizing the provisions proposed in § 155.240 without modification.
We proposed amending § 155.260(g) to add a reference to § 155.285, which is being added as part of this final rule. Section 155.285 specifies the grounds for imposing CMPs, the notice required to be given to a person when a civil money penalty is assessed, and factors to be used to determine the amount of CMPs assessed, as well as some aspects of the process for imposing CMPs. We proposed this addition to § 155.260(g) to clearly link these two regulatory provisions and to ensure that readers fully understand how CMPs will be assessed for any improper use or disclosure of information.
We are finalizing the addition to § 155.260 as proposed, with a minor change where we have inserted the numerical penalty amount instead of a reference to section 1411(h) of the Affordable Care Act where the maximum penalty is specified.
In § 155.285(a), in accordance with the grounds on which penalties may be imposed as specified in section 1411(h) of the Affordable Care Act, we proposed the circumstances under which HHS may impose CMPs on a person if HHS determines that the person has provided false or fraudulent information as prohibited by section 1411(h)(1) or improperly used or disclosed information in violation of section 1411(g). In § 155.285(a)(1)(i), we proposed that if any person fails to provide correct information under section 1411(b) of the Affordable Care Act and such failure is attributable to negligence or disregard of any regulations of the Secretary, the person may be subject to a CMP. Under proposed § 155.285(a)(1)(i), if a person fails to make a reasonable attempt to provide accurate, complete and comprehensive information and as a result provides incorrect information, the person may be subject to a CMP.
Second, in § 155.285(a)(1)(ii), we proposed that if a person knowingly and willfully provides false or fraudulent information under section 1411(b) of the Affordable Care Act, the person may be subject to a CMP. We noted that if consumer assistance personnel such as an agent, broker, Navigator, certified application counselor, or non-Navigator assistance personnel, were to in some manner directly provide false or incorrect information required under section 1411(b), they may also be subject to a CMP. Third, in § 155.285(a)(1)(iii), we proposed that if a person knowingly and willfully uses or discloses information in violation of Affordable Care Act section 1411(g), the person may be subject to a CMP. In § 155.285(a)(1)(iii)(A) through (C), we proposed types of activities that would be in violation of section 1411(g) of the Affordable Care Act and in § 155.285(a)(2), we proposed a definition of the term “person.”
In § 155.285(b), we proposed the factors that HHS may take into consideration when determining the amount of CMPs to impose. In § 155.285(b)(3), we implemented the reasonable cause exception of section 1411(h)(1)(A)(ii) of the Affordable Care Act pursuant to which no penalty will be imposed under § 155.285(a)(1)(i) if HHS determines that there was a reasonable cause for the failure to provide correct information required on an Exchange application and that the person acted in good faith.
In § 155.285(c), we proposed maximum penalties for each different type of violation. In § 155.285(d), we proposed standards for a notice of intent to issue a CMP that HHS must send to the person against whom the CMP may be imposed. In § 155.285(d)(1)(i)–(viii), we proposed eight elements that must be included in the notice. We proposed that the person may request a hearing before an ALJ on the proposed penalty by filing a request pursuant to the procedure that will be outlined in the notice of intent to impose a penalty that the person receives.
In § 155.285(e), we proposed the consequences for a person who fails to request a hearing in a timely manner. We proposed that HHS may assess the proposed CMP 60 calendar days after the date of issuance printed on the notice of intent to issue a CMP. In § 155.285(e)(1), we proposed that HHS will notify the person in writing of any penalty that has been imposed, the means by which the person can satisfy the penalty, and the date on which the penalty is due. We proposed in § 155.285(e)(2) that a person has no right to appeal a penalty with respect to which the person has not timely requested a hearing.
In § 155.285(f), we proposed to use the existing appeals framework in regulation at 45 CFR Part 150, Subpart D. In § 155.285(g), we proposed that CMS and OIG will share enforcement authority to impose the CMPs in § 155.285.
In § 155.285(h), we proposed a settlement authority provision to ensure CMS is able to settle any issue or case described in § 155.285(a) if necessary. Finally, in § 155.285(i), we proposed a six year statute of limitations, beginning from the date on which the violation occurred, within which HHS may impose a CMP against a person.
We are finalizing the provisions proposed in § 155.285 of the proposed rule regarding CMPs, with the following modifications: In an effort to prevent confusion, in § 155.285(c) we have removed the references to section 1411(h)(1) and (2) of the Affordable Care Act and have instead inserted the numerical maximum penalty amounts. In § 155.285(a)(1)(ii), we have added “or fraudulent” after “knows to be false” to make the text consistent with section 1411(h)(1) of the Affordable Care Act. In § 155.285(b)(1) and (2), we have added language to clarify that the factors in these provisions are “including, but not limited to” the factors listed in their subparagraphs. In § 155.285(b)(1)(viii), we have added a factor allowing HHS to take into consideration whether other remedies or penalties have been imposed for the same conduct or occurrence. We have clarified the scope of the factors in subparagraphs (b)(2)(i) and (ii) to account for violations that could have resulted in actual or potential financial harm or could have resulted in actual or potential harm to an individual's reputation, respectively. We have made a minor change to the wording in § 155.285(d)(2) by substituting the word “appeal” for “request.” We have also made a technical correction to substitute “the notice of intent to issue a civil money penalty” in § 155.285(d)(2) with a cross reference to § 155.285(f). In § 155.285(f), we have rephrased the paragraph to read “HHS has proposed to impose” rather than “HHS has imposed.” Finally, we are substituting the reference to “CMS” with “HHS” in (g)(1) and, in consultation with OIG, we are finalizing concurrent jurisdiction with respect to § 155.285(a)(1)(ii) and not § 155.285(a)(1)(iii) at this time.
In § 155.320(d)(4), we established an option under which a State Exchange could rely on HHS to conduct verifications of enrollment in an eligible employer-sponsored plan and eligibility for qualifying coverage in an eligible employer-sponsored plan for purposes of eligibility for advance payments of the premium tax credit. This option was made available for eligibility determinations that are effective on or after January 1, 2015. However, we have
We are finalizing the changes to § 155.320(d)(4) as proposed but note that we are extending the flexibility previously provided at 78 FR 42257 to permit State Exchanges to implement the sample-based reviews for employer-sponsored coverage for eligibility determinations for insurance affordability programs starting January 1, 2016.
In the proposed rule, we proposed a technical correction in paragraph (d)(2)(ii) of § 155.330 to remove the reference to paragraph (e)(3) of this section. In the final rule, titled, “Medicaid and Children's Health Insurance Programs: Essential Health Benefits in Alternative Benefit Plans Eligibility Notices, Fair Hearing and Appeal Processes and Premiums and Cost Sharing; Exchanges: Eligibility and Enrollment, 78 FR 32319, we previously removed paragraph (e)(3) from this section. As such, we clarified in the proposed rule that paragraph (d)(2)(ii) should only refer to the standards specified in paragraph (e)(2) of this section.
We did not receive any comments on this proposal and are finalizing the provision as proposed.
In § 155.400, we proposed to add paragraph (e) to establish that Exchanges may, and the FFE would, require payment of the first month's premium to effectuate enrollments.
We also proposed to add paragraph (f), which would authorize Exchanges to provide requirements to QHP issuers regarding the instructions for processing electronic enrollment-related transactions.
Additionally, in § 156.265 we proposed to establish a requirement for issuers in the FFEs to collect premiums no later than the day before the coverage effective date. Our intention was to give the Exchange the flexibility to establish policy and process rules regarding premium payment.
We are finalizing § 155.400(e) and (f) of the proposed rule without modification. Additionally, we are finalizing the provisions proposed in § 156.265(d)(1) of the proposed rule as the entire paragraph (d), and we are not finalizing any § 156.265(d)(2), allowing each Exchange to establish its own premium payment dates.
In 45 CFR 155.410(d), we specified that starting in 2014, the Exchange must provide a written annual open enrollment notification to each enrollee no earlier than September 1, and no later than September 30. In 45 CFR 155.335(d), we specified that notice of annual redetermination for coverage effective January 1, 2015 be provided as a single, consolidated notice with the notice specified in 45 CFR 155.410(d). In the 2015 Payment Notice, we amended 45 CFR 155.410(e) to specify that for the benefit year beginning on January 1, 2015, the annual open enrollment period begins on November 15, 2014. Accordingly, we believe that it is appropriate to modify the timing of the notice of annual open enrollment and annual redetermination. We proposed two options for this notice: (1) shifting the period during which the notice would be sent by a month, so that the notice would be sent no earlier than October 1, and no later than October 31, and (2) shifting the period during which the notice would be sent by a month and lengthening this period so that the notice would be sent no earlier than October 1, and no later than November 15, provided that electronic notices are available for any consumer who contacts the Exchange on November 15. We sought comment on which of these options we should implement, or if we should implement another option.
A limited number of commenters supported timeframes outside the two proposed options. One supported keeping the original timeframe for sending the notice no earlier than September 1 and no later than September 30; another sought flexibility to send notices no earlier than August 1. We also received a comment expressing concern over shifting the timeframe either way due to misalignment between open enrollment notices, issuer 90-day renewal notices, and Exchange redetermination notices.
We are amending § 155.410(d) to state that, starting in 2014, the Exchange must provide written notice of annual open enrollment to each enrollee no earlier than the first day of the month before the open enrollment period begins and no later than the first day of the open enrollment period.
In 45 CFR 155.420, we set forth provisions for special enrollment periods. In the proposed rule, we proposed amending § 155.420(b)(2)(ii), (d)(1), (d)(6)(iii) and (e), which pertain to the special enrollment period for loss of coverage; § 155.420(b)(2)(i) and (iii), which pertain to effective dates for certain special enrollment periods; and § 155.420(c), which pertains to the length of the special enrollment periods.
In paragraph (b)(2)(i), we proposed to provide flexibility for coverage effective dates in the case of birth, adoption, placement for adoption, or placement in foster care. We require the Exchange to ensure that coverage is effective for a qualified individual or enrollee on the date of birth, adoption, placement for adoption, or placement in foster care, unless Exchanges permit the qualified individual or enrollee to elect a later coverage effective date. If the Exchange permits the qualified individual or enrollee to elect a later coverage effective date, the Exchange must ensure coverage is effective on the date elected by the qualified individual or enrollee.
In § 147.104(b)(2), we specified that a health insurance issuer in the individual market must provide, with respect to individuals enrolled in non-calendar year individual health insurance policies, a limited open enrollment period. Accordingly, in order to align Exchange regulations with those of the broader insurance market, in paragraph (d)(1), we proposed that the Exchange permit qualified individuals and their dependents to enroll in or change from one QHP to another if they are enrolled in a non-calendar year individual health insurance policy in 2014 described in § 147.104(b)(2), even if issuers of such non-calendar year policies offer to renew the policy. Thus, consumers whose individual health insurance policies would renew outside the Exchange open enrollment period would have an opportunity to enroll in an Exchange, just as they would if their policies were offered for renewal during the Exchange open enrollment period. Without this addition, consumers with individual health insurance policies renewing outside the Exchange open enrollment period would be required to renew such policies, and wait to terminate the policies during the Exchange open enrollment period, should they wish to enroll through the Exchange, thus disadvantaging these consumers as compared to consumers enrolled in calendar year individual market policies.
In 26 CFR 1.5000A–2(b)(1)(ii)(C), the Secretary of the Treasury specified that coverage of pregnancy-related services under section 1902(a)(10)(A)(i)(IV) and (a)(10)(A)(ii)(IX) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(i)(IV), (a)(10)(A)(ii)(IX)) was not minimum essential coverage. In order to ensure that women losing eligibility for coverage of pregnancy-related services as described above are not left without an option to enroll in a QHP after the conclusion of Medicaid eligibility, in paragraph (d)(1), we proposed that the Exchange permit qualified individuals and their dependents to enroll in a new QHP if they lose eligibility for such pregnancy-related services. We solicited comments regarding whether there are other situations in which an individual loses coverage that is not defined as minimum essential coverage and should be provided with a special enrollment period.
We proposed to add to paragraph (c) to specify that the Exchange must permit qualified individuals and their dependents to access the special enrollment periods described in paragraph (d)(1) for up to 60 days prior to the end of the qualified individual's or his or her dependent's existing coverage. This is consistent with existing regulations in paragraph (d)(6)(iii) that are specific to an individual who is enrolled in an eligible employer-sponsored plan who is determined newly eligible for advance payments of the premium tax credit based in part on a finding that such individual is ineligible for qualifying coverage in an eligible employer-sponsored plan. To improve the clarity and structure of this rule, we proposed to move the language in paragraph (d)(6)(iii) regarding the 60 days prior access to the special enrollment period to paragraph (c). The proposed change, to paragraph (d)(1) that would expand the ability to report a change and select a plan in advance to all individuals who are described in paragraph (d)(1) is designed to allow an individual who is losing eligibility for coverage outside the Exchange to transition to coverage offered through an Exchange without a gap in coverage, but with protections to ensure that advance payments of the premium tax credit are not provided in advance of the loss of eligibility for minimum essential coverage outside the Exchange. Accordingly, we note that individuals are not eligible for advance payments of the premium tax credit until they are no longer enrolled in minimum essential coverage outside the Exchange. While consumers will be able to report the loss of coverage and select a QHP offered on the Exchange in advance of the loss, their coverage effective date will be no earlier than the first day of the month following the loss of coverage (for example, if the loss of minimum essential coverage is on May 31, 2014 and the consumer reports the loss on March 5, 2014, coverage will not be effective until June 1, 2014). Lastly, we proposed to make conforming changes to paragraphs (b)(2)(ii) and (e) to align with the changes in terminology proposed in paragraph (d)(1).
In paragraphs (d)(4), (d)(5), (d)(9) and (d)(10), we provide special enrollment periods for errors of the Exchange or HHS, contract violations by the QHP, exceptional circumstances and misconduct by a non-Exchange entity. Existing paragraph (b)(2)(iii) specifies that for a plan selection made during one of the special enrollment periods under paragraphs (d)(4), (d)(5), and (d)(9), coverage must be effective on an appropriate date based on the circumstances of the special enrollment period, in accordance with guidelines issued by HHS, and provides two options for that effective date. We proposed to add special enrollment periods triggered under paragraph (d)(10) to those special enrollment periods for which these special coverage effective dates are available. In order to ensure that the Exchange has sufficient flexibility with which to address the types of scenarios that may trigger these special enrollment periods, we proposed to amend paragraph (b)(2)(iii) to remove the restriction to these two options. The resulting proposed regulatory text would allow the Exchange to set an effective date based on what is appropriate to the circumstances, in accordance with any guidelines issued by HHS. Similarly, in order to ensure that the Exchange sets the length of these same special enrollment periods to be appropriate to the circumstances of the specific enrollment period, we proposed to modify paragraph (c) to specify that the Exchange may define the length of these special enrollment periods as appropriate based on the circumstances of the special enrollment period, in accordance with any guidelines issued
Section 155.420(e) clarifies what qualifies as loss of coverage for purposes of the special enrollment period described in paragraph (d)(1). We proposed to modify this paragraph to clarify that voluntary termination does not qualify as loss of coverage for purposes of a special enrollment period, since the intent of this special enrollment period is to ensure that an individual who is losing coverage can transition to the Exchange without interruption, and not to allow an individual to switch from another form of coverage to the Exchange during the year when the other form of coverage remains available and he or she does not qualify for another special enrollment period described in this section. We solicited comments regarding this clarification.
We are finalizing the provisions proposed in section § 155.420 of the proposed rule with the following modifications. In paragraph (b)(2)(i), we provide that coverage must be effective on the date of the birth, adoption or placement for adoption, placement for foster care, or the Exchange may allow the consumer to select a coverage effective date of the first of the month following the date of birth, adoption, placement for foster care, or placement for adoption. In paragraph (b)(2)(ii), we clarify that coverage is effective the first day of the month following plan selection. In paragraph (b)(2)(iii) we provide flexibility for Exchanges to ensure coverage is effective based on the specific circumstances of the special enrollment period. We also have added a new paragraph (b)(2)(iv) that clarifies a consumer's ability to select a plan 60 days before and after a loss of coverage described in subparagraph (d)(1) and (d)(6)(iii). Finally, in paragraph (d)(1), we define the date of the loss of coverage for each triggering event described under paragraph and establish a special enrollment period for individuals losing medically needy coverage.
We proposed to add paragraph (e) to § 155.430 to establish the difference between a termination and a cancellation and establish the significance of a reinstatement action in the context of QHP coverage offered through an Exchange. Specifically, we proposed to specify that a cancellation is a specific type of termination action taken that ends a qualified individual's coverage on or before the effective date, thus rendering coverage as never effective. In contrast, a termination is an action taken after the effective date of coverage that ends an enrollee's coverage effective on a date after the coverage effective date. In a cancellation, the effect of the QHP's action would be that a qualified individual does not receive coverage from the QHP, whereas in a termination the QHP covers the enrollee for some period of time and would be liable for covered services that the enrollee received during the time period between the coverage effective date and the termination date, under the terms of the coverage. A reinstatement action is a correction of an erroneous termination or cancellation action resulting in restoration of an enrollment with no break in coverage.
In addition to establishing the difference between cancellations and terminations, we also proposed that an Exchange may establish operational standards for QHP issuers for implementing terminations, cancellations, and reinstatements. Enrollment systems for both SBEs and the FFE continue to evolve, and we believe that the Exchange's ability to issue operational instructions will enable both the Exchange and the issuer community to respond more effectively to changing systems and changing processes. We believe the effectiveness of this approach has been demonstrated in other programs administered by CMS, specifically the Medicare Advantage and Medicare Part D programs.
Further, we proposed to clarify in paragraph (d)(6) that the termination effective date for a QHP would be the day before the effective date of coverage in a different QHP even in cases of retroactive enrollments. This could occur when a consumer is granted a special enrollment period to change QHPs with a retroactive coverage effective date under 155.420(b)(2)(iii). For coverage that is terminated retroactively, CMS would adjust any applicable payments to the original QHP issuer based on the retroactive termination date, in order to recoup any advance payments of the premium tax credit and cost-sharing reductions made to the former issuer for the enrollee. The Exchange would be required to ensure that the former issuer refunds or credits any premium paid to the issuer by the enrollee and reverse claim payments for services rendered during the retroactive coverage period. We sought comment on whether to add a specific requirement to this effect on issuers in Part 156.
Conversely, in the case of a retroactive coverage date, CMS would provide the gaining issuer any applicable advance payments of the premium tax credit and CSRs based on the retroactive coverage effective date. CSR reconciliation would occur for all CSRs provided beginning with the retroactive coverage date. The gaining issuer would collect the enrollee's portion of the premium for all months of coverage and would be required to adjudicate the enrollee's claims incurred during the retroactive period, and provide any applicable CSRs.
The gaining issuer in turn, should collect the enrollee's portion of the premium and is responsible for any covered services incurred, in each case for the period following the retroactive effective date of coverage. CMS will also provide the gaining issuer any applicable advance payments of the premium tax credit and CSRs for the enrollee back to the retroactive effective date of coverage. (We intend to provide additional guidance regarding how issuers should handle a claim that spans a period of time in which the enrollee has coverage from two separate issuers in such circumstances.) Providers are responsible for billing the gaining issuer for any covered services incurred back the retroactive enrollment date, and the issuer must ensure that the provider collects only the cost sharing for the covered service to reflect the enrollee's cost-sharing obligation for the service under the gaining issuer. We acknowledge that such an adjustment may result in the enrollee owing the provider additional funds, depending on the cost sharing and benefit structure of the new plan. We note that consistent with 45 CFR 156.410(c)(1) and our CMS Bulletin to Exchanges on the Availability of Retroactive Advance Payments of the PTC and CSRs in 2014 Due to Exceptional Circumstances, dated February 27, 2014, any refund or credit for any excess cost sharing or premium paid for or on behalf of the individual must be provided (or begin to be provided in the case of a credit) with 45 calendar days of the date of discovery of the excess cost sharing or premium paid.
If an applicant switches QHP issuers, we do not require out-of-pocket amounts paid under the prior plan to carry over to the new QHP issuer, but defer to issuers and State laws with regard to how out-of-pocket payments under the former issuer's plan should be accounted for in the deductibles and limitations on cost sharing under the new issuer's plan.
Under the policy and processes set forth in this final rule, prescription claims should be treated in the same manner as other claims.
We are finalizing the provisions proposed in § 155.430 of the proposed rule without modification. However, we are adding § 156.270(j) to specify that QHP issuers must follow the transaction rules established by the Exchange in accordance with § 155.430(e) based on comments we solicited and ensuring a consistency of operational procedures among issuers in the Exchange.
In § 155.505, we proposed a technical correction to paragraph (b)(4) by removing “; and” at the end of the paragraph and adding a period in its place.
We receive no comments on this proposal and are finalizing the provision as proposed.
In § 155.530, we proposed to amend paragraph (a)(1) to provide an additional method for appellants to withdraw appeal requests. The existing provision requires an appellant who wishes to withdraw his or her appeal request to do so in writing (hard copy or electronic). We proposed to include the alternative for an appellant to withdraw his or her appeal by telephone, if the appeals entity is capable of accepting telephonic withdrawals. In paragraphs (a)(1)(i)(A) and (B), we proposed the requirements for providing a telephonic withdrawal process. Specifically, we proposed that the appeals entity must record in full the appellant's statement and telephonic signature made under penalty of perjury, and provide a written (in hard copy or electronically) confirmation to the appellant documenting the telephonic interaction. We sought comment on this proposed amendment, including the proposed requirements for accepting telephonic withdrawals and the potential misalignment with Medicaid fair hearing rules caused by this proposed amendment.
We are finalizing the provision as proposed and note, as in the proposed rule, that this change also impacts employer appeal withdrawals by cross-reference at § 155.555(f)(1).
We proposed to amend § 155.555 by redesignating paragraphs (d)(1) through (d)(4) to more clearly delineate between the requirements associated with valid appeal requests versus invalid appeal requests. We note that under this proposed redesignation, paragraph (d)(4) would become new paragraph (d)(2), stating that upon receipt of an invalid appeal request, the appeals entity must promptly and without undue delay send written notice to the employer that the appeal request is not valid because it fails to meet the requirements of this section. New paragraph (d)(2) would also provide introductory language for the requirements provided in paragraphs (d)(2)(i) through (iv). The result of these proposed revisions would be to separate the requirements for valid appeal requests in redesignated paragraph (d)(1) and the requirements for invalid appeal requests in new paragraph (d)(2).
We received no comments on the proposed redesignations and are finalizing the redesignations as proposed.
Under section 5000A of the Code, an individual must maintain minimum essential coverage for each month, qualify for an exemption, or make a shared responsibility payment. Sections 5000A(d) and (e) provide for nine categories of exemptions, and authorize the Secretary to determine individuals' eligibility for some of the exemptions, including the hardship exemption. Sections 1.5000A–3(a) through (h) of 26 CFR enumerate the circumstances in which an individual may be exempt from the shared responsibility payment. These grounds for exemption include: (1) under 26 CFR 1.5000A–3(e), the individual lacks affordable coverage because the individual's annualized required contribution for minimum essential coverage for the month exceeds the required contribution percentage of the individual's household income; (2) under 26 CFR 1.5000A–3(h), the individual has in effect a hardship exemption certification issued by an Exchange because, based on the individual's projected household income, the individual is not eligible for affordable minimum essential coverage; and (3) as described in 45 CFR 155.605(g)(5), the individual and one or more employed members of his or her family have been determined eligible for affordable self-only employer-sponsored coverage through their respective employers, but the aggregate cost of employer-sponsored coverage for all the employed members of the family exceeds 8 percent of household income for that calendar year. Determining eligibility for these exemptions requires comparison between the individual's share of the costs for obtaining minimum essential coverage and a certain percentage of the individual's household income, actual or projected, for the taxable year (the required contribution percentage). Under section 5000A(e)(1)(A) of the Code, the required contribution percentage is 8 percent. Section 5000A(e)(1)(D) of the Code and 26 CFR 1.5000A–3(e)(2)(ii) further provide that, for plan years beginning in any calendar year after 2014, the percentage will be the percentage determined by the Secretary to reflect the excess of the rate of premium growth between the preceding calendar year and 2013 over the rate of income growth for that period.
As discussed below, in this final rule, we establish a methodology for determining the excess of the rate of premium growth over the rate of income growth for a period, and establish the required contribution percentage for the 2015 calendar year. For calendar years after 2015, the required contribution percentage will be published in the annual HHS notice of benefit and payment parameters. We also define the required contribution percentage under § 155.600(a) to mean the product of 8 percent and the rate of premium growth over the rate of income growth for the calendar year, rounded to the nearest one-hundredth of one percent. Finally, we modify § 155.605(g)(5), which currently sets the required contribution percentage at 8 percent, so that the required contribution percentage for purpose of section 5000A in future years reflects the required contribution percentage for the applicable calendar year.
In the proposed rule, we outlined and requested comments on methodologies for determining the excess of the rate of premium growth over the rate of income growth. We discussed an approach under which the rate of premium growth over the rate of income growth for a particular calendar year would be calculated as the quotient of (x) one plus the rate of premium growth between the preceding calendar year and 2013, divided by (y) one plus the rate of income growth between the preceding calendar year and 2013. We sought comment on whether we should constrain this ratio to be greater than or equal to one, as well as the impact of these constraints on the excess of the rate of premium growth over the rate of income growth. We sought comment on this and other approaches for determining the excess of the rate of premium growth over the rate of income growth, and in particular, whether the excess of the rate of premium growth over income growth should be
In response to comments, we are finalizing the methodology outlined in the proposed rule, such that the rate of premium growth over the rate of income growth for a particular calendar year will be the quotient of (x) one plus the rate of premium growth between the preceding calendar year and 2013, carried out to ten significant digits, divided by (y) one plus the rate of income growth between the preceding calendar year and 2013, carried out to ten significant digits. The quotient will be carried out to ten significant digits, and multiplied by the required contribution percentage for 2014 (8 percent). The result will then be rounded to the nearest hundredth of a percent, to yield the required contribution percentage for the calendar year. We do not constrain this percentage to be greater than or equal to one, or subject it to other adjustments or constraints.
Taking into consideration the comments received, we are finalizing our proposal to measure the rate of premium growth for a calendar year by using the premium adjustment percentage for the year, without any adjustments or constraints. We provided in the 2015 Payment Notice
In response to comments, in this final rule, we are establishing as the measure of income growth for a calendar year the percentage by which the per capita GDP for the preceding calendar year exceeds the per capita GDP for 2013, carried out to ten significant digits, using the
The required contribution percentage for 2014 is 8.00 percent. Based on the methodology finalized in this final rule, the rate of premium growth over the rate of income growth for 2015 is 1.04213431463/1.0360845879 or 1.005839028. This results in a required contribution percentage for 2015 of 8.00*1.005839028, or 8.05 percent, when rounded to the nearest one-hundredth of one percent.
We define the required contribution percentage under § 155.600(a) to mean the product of eight percent and the rate of premium growth over the rate of income growth for the calendar year, rounded to the nearest one-hundredth of one percent. We are also amending § 155.605(g)(5), so that the required contribution percentage for this exemption in future years reflects the required contribution percentage for the applicable calendar year.
In § 155.625, we established an option under which a State Exchange could adopt an eligibility determination for an exemption from the shared responsibility payment that was made by HHS, provided that certain conditions were met. We proposed to revise § 155.625 to remove the option for a State Exchange to adopt an eligibility determination for an exemption from the shared responsibility payment made by HHS for applications submitted on or after November 15, 2014. Under this proposal, HHS would continue to provide support in this area for applications up until that date.
Additionally, and as previously stated in the proposed rule, we support this change because the current procedure introduces significant information technology development and administrative burden into a process that could otherwise be executed at a single entity. For example, it requires coordinated information sharing systems between State Exchanges and HHS to send, receive, and process the information needed to make an exemption determination, particularly for those exemptions that require information only held by the State Exchange, such as the cost of the lowest-cost bronze plan net of advance payments of the premium tax credit. Furthermore, the current process requires dual customer service responsibilities at both HHS and the State Exchange, which creates challenges for consumers and Exchange customer service representatives. Therefore, we do not believe that there are significant efficiencies to be gained by HHS providing this service to State Exchanges.
HHS is committed to providing technical assistance to State Exchanges to develop the capacity to handle the minimum functions of granting certificates of exemption. HHS has
We are amending § 155.625(a) and (b) to state that the Exchange may adopt an exemption eligibility determination made by HHS for applications submitted before the start of open enrollment for the 2016 plan year.
Sections 155.705(b)(2) and (3) currently provide that, for plan years beginning on or after January 1, 2015, all SHOPs must make available to qualified employers the option of selecting an actuarial value level of coverage as described in section 1302(d)(1) of the Affordable Care Act and make all QHPs at that level available to qualified employees (“employee choice”). Additionally, pursuant to section 1312(a)(2) of the Affordable Care Act, qualified employers may provide support for coverage of employees under a QHP by selecting any level of coverage under section 1302(d) to be made available to employees, and each employee of an employer that elects a level of coverage may choose to enroll in a QHP that offers coverage at that level. Based on communications with issuers and State Insurance Commissioners early in 2014, HHS became concerned that, in some circumstances, implementing employee choice in 2015 might significantly disrupt some small group markets, and it might therefore have a negative effect on the ability of small business owners to access coverage.
To address these concerns, we proposed to amend § 155.705(b)(2) and (3) to provide for a one year transition policy under which a SHOP would be permitted to not implement employee choice in 2015 under specific circumstances: (1) if employee choice would result in significant adverse selection in the State's small group market that could not be fully remediated by the single risk pool or premium stabilization programs; or (2) if there is an insufficient number of issuers offering QHPs or qualified SADPs to allow for meaningful plan choice among QHPs or qualified SADPs for all actuarial value levels in the State's SHOP. We proposed that meaningful choice would mean sufficient competition in the market to allow for participation in the SHOP from multiple issuers throughout the State.
We proposed that a State regulatory agency, such as the State Department of Insurance, could submit a recommendation to the State's SHOP (or in the case of an FF–SHOP, to the Secretary) showing why either of the two proposed circumstances applied in 2015. We sought comment on whether the State regulatory agency recommendation should include a mitigation plan describing the process the State regulatory agency would take to ensure that full implementation of employee choice in 2016 would not result in the occurrence of either proposed circumstance. We proposed that the State would be required to provide in the recommendation to the SHOP concrete evidence that one of the two proposed circumstances applied. The SHOP would then evaluate the State's recommendation and determine whether the State's small group market would be significantly adversely affected as a result of the implementation of employee choice.
In the preamble to the proposed rule, we also recognized the importance of the timing of a State regulatory agency's recommendation and the SHOP's decision regarding employee choice under this proposal. Whether or not employee choice is available in a SHOP may be relevant information for issuers to consider as they make QHP submissions, but State regulatory agencies also need time to evaluate market dynamics before they can make a recommendation about whether the SHOP should not implement employee choice in 2015. We considered establishing a deadline for the State regulatory agency's recommendation to the SHOP. We considered a timeline under which State regulatory agencies would make recommendations prior to the close of the initial QHP certification application window, with sufficient time for issuers to decide whether or not to participate in SHOP for the following plan year. We also considered a second timeline as follows: (1) All issuers interested in participating in SHOP would apply during the initial application window; (2) State regulatory agencies then would have a specific window of time within which to make a recommendation regarding whether to not implement employee choice in 2015 based on the applications received; (3) the SHOP would then have a specific window of time to decide whether to implement employee choice in 2015 based on that recommendation; (4) issuers could, based upon the SHOP's decision, decide whether to maintain, modify, or withdraw their QHP applications. In the FF–SHOPs, under this second scenario, issuers would be able to submit applications after the initial deadline to apply for QHP certification had passed.
We are finalizing this provision with the following modifications. First, based on a careful re-evaluation of the two conditions under which the State regulatory agency could make the proposed recommendation, we have recognized that some issuers have concerns about the potential for adverse selection in the small group market under employee choice and these concerns might cause them to price their products and plans higher than they might otherwise price them if the SHOP did not offer employee choice. Therefore, in the final rule, we specify that a State Insurance Commissioner could recommend to the SHOP that employee choice not be implemented in that State in 2015 if the Commissioner can adequately explain that this would be in the best interest of small employers and their employees and dependents, given the likelihood that implementing employee choice would cause issuers to price their products and plans higher than they would otherwise price them. Second, we are finalizing the first timeline in the proposed rule, and are requiring that a State Insurance Commissioner make its recommendation to the SHOP, and that the SHOP make its decision about implementing employee choice, sufficiently in advance of the end of the QHP certification application window such that issuers can make informed decisions about whether to participate in the SHOP. In the FF–SHOPs, State Insurance Commissioner must submit to HHS their recommendation on or before June 2, 2014. This will provide HHS (as operator of the FF–SHOPs) sufficient time to review any recommendations. HHS anticipates that its decision regarding the implementation of employee choice in States with an FF–SHOP would be made by June 10, 2014, which would provide sufficient time for
Therefore, consistent with the proposal that this policy reflect issuer and State concerns about adverse selection we are finalizing § 155.705(b)(3)(vi) to allow a SHOP to elect to provide employers only with the option set forth at paragraph (b)(3)(ii)(B), or in the case of a FF–SHOP, only with the option set forth at paragraph (b)(3)(iv)(B) only if the State's Insurance Commissioner can adequately explain that it is his or her expert judgment, based on a documented assessment of the full landscape of the small group market in his or her State, that not implementing employee choice in 2015 would be in the best interest of small employers and their employees and dependents, given the likelihood that implementing employee choice would cause issuers to price products and plans higher in 2015 due to the issuers' beliefs about adverse section. This transitional policy only applies for plan years beginning in 2015. We expect that by 2016, States and issuers will be able to learn from the experiences of issuers in a wider range of SHOPs that have implemented employee choice so that any adverse selection concerns will no longer be material. For example, we believe that by 2016, issuers will have much more information on which to make pricing and plan design decisions for an employee choice environment. HHS anticipates that the conditions for a State to recommend a transition in employee choice will apply in a subset of markets, and HHS remains committed to implementing employee choice in all SHOPs by 2016. In any event, in light of the statutory language providing that employee choice should be implemented in all SHOPs, this policy will not be extended beyond 2015. HHS will approve an FF–SHOP State's recommendations with the understanding that the transitional policy applies for one year.
While the rule would also permit State-based SHOPs to decide against implementing employee choice in 2015, HHS believes it is unlikely that State-based SHOPs will opt not to implement employee choice in 2015 because most of them currently offer employee choice.
We are not finalizing the proposal that States include a statement describing how the plan to increase meaningful choice or reduce adverse selection concerns for 2016 and beyond in their recommendation because HHS anticipates that the conditions that would support the State recommendation required under this final rule will not apply in most markets.
This timeline reduces uncertainty for issuers because issuers will know if employee choice is being offered in a SHOP prior to the end of the QHP application period. Issuers will be able to make a decision about SHOP participation based on final information about whether employee choice will be implemented and will be less likely to seek to modify their rates or withdraw their applications.
State-based SHOPs will be required to follow the same timeline as FF–SHOPs, but exact dates for State Insurance Commissioner recommendations and SHOP decisions may differ from the FF–SHOP.
We are finalizing the provision as proposed, with the modification that a SHOP's decision not to implement employee choice in 2015 should be based on a written recommendation submitted by the State Insurance Commissioner adequately explaining that it is the Insurance Commissioner's expert judgment, based on a documented assessment of the full landscape of the small group market in his or her State, that not implementing employee choice would be in the best interests of small employers and their employees and dependents, given the likelihood that implementing employee choice would cause issuers to price products and plans higher in 2015 due to the issuers' beliefs about adverse selection. A State Insurance Commissioner's recommendation must be based on concrete evidence, including but not limited to discussions with those issuers expected to participate in the SHOP in 2015. We clarify that this policy only applies in 2015 by adding the word “only.” We also changed in § 155.705(b)(3)(vi) the word options to be singular as one option is available for FF–SHOPs and another for State-based SHOPs. Finally, we have established in the final rule the first of two proposed timelines under which States to make their recommendations to SHOP.
We proposed amendments to § 155.725(c) and (e) to amend the dates for the annual open enrollment periods for qualified employers and qualified employees in all SHOPs, both State-based and Federally-facilitated. In proposed §§ 155.725(c)(1), we proposed to align the start of annual employer election periods in all SHOPs for plan years beginning in 2015 with the start of open enrollment in the corresponding individual market Exchange for the 2015 benefit year. Under the proposal, the annual employer and employee election periods would begin no sooner than November 15, 2014 with employers making selections first, followed by employees. We are finalizing this proposal with one modification. Based on comments we received through the public comment period, we are modifying § 155.725(c)(1) to limit this provision to FF–SHOPs. State-based SHOPs may start their annual employer election periods earlier than November 15, 2014. We further clarify that nothing in this rule eliminates the rolling monthly enrollments in the SHOPs outlined at 45 CFR 155.725(b) and the requirement also outlined at 45 CFR 155.725(b) that a plan year in the SHOP be 12 months.
We note that pursuant to § 147.104(b)(1)(i), group coverage purchased in the SHOP between November 15 and December 15 of each year is not subject to employer contribution or group participation rules. As explained in Chapter 5 of the 2015 Letter to Issuers published on March 14, 2014, FF–SHOPs do not enforce minimum participation requirements between November 15 and December 15 of each year, but they are enforced upon initial enrollment and at renewal outside of this window. Aligning the start of the annual employer election period in the FF–SHOPs with the start of the individual market Exchange such that the employer election period would begin no sooner than November 15, 2014, will provide qualified employers and employees with a period of time to enroll for 2015 coverage when the FF–SHOP minimum participation provisions are not enforced. State-based SHOPs wishing to begin annual employer election periods prior to November 15 may extend the window of time when employers are not subject to employer contribution or group participation rules. For example, a State-based SHOP may extend the window of time during which minimum contribution and participation rules are not applicable from October 15 through December 15, so long as November 15 through December 15 is included in the time period.
In §§ 155.725(c)(2) and 155.725(e), we proposed to remove the required minimum lengths of both the annual employer election period and the employee open enrollment period to provide additional flexibility to all SHOPs and qualified employers. The existing minimum standards may make it difficult for groups participating in the SHOP to renew coverage in a timely manner, as under those minimums, it might take 75 days or longer to complete a group renewal. This proposal will permit employers to expedite their enrollment timeline. Also, this proposal increases a qualified employer's access to the most up-to-date rate information by permitting alignment with the quarterly rate update cycle. We are finalizing these provisions as proposed.
We are finalizing the amendments proposed in § 155.725 of the proposed rule with the modification that the provision aligning the annual employer election period with the start of the start of open enrollment in the corresponding individual market Exchange for the 2015 benefit year applies only in FF–SHOPs. State-based SHOPs may start their annual employer election periods earlier than November 15, 2014.
We proposed to amend § 155.740(g) by redesignating paragraphs (g)(1) through (g)(3) to more clearly delineate the requirements associated with valid appeals separately from those associated with invalid appeals.
We proposed to amend § 155.740(i)(1)(i) by cross-referencing the withdrawal standards proposed in the individual market at § 155.530(a)(1). Under current rules, an appellant who wishes to withdraw his or her appeal request must do so in writing (hard copy or electronic). The amended provision would allow an appellant to withdraw his or her appeal request in writing or by telephone, if the appeals entity is capable of accepting telephonic withdrawals.
We are finalizing the provisions proposed in § 155.740 without modification.
In § 155.1400, we proposed that the Exchange must prominently display on its Web site, in accordance with 45 CFR 155.205(b)(1)(v), quality rating information assigned for each QHP under the QRS, as calculated by HHS and in a form and manner specified by HHS, starting in 2016. We stated our intentions to have a beta testing period in 2015 to provide early feedback to Exchanges and QHP issuers and begin public reporting of quality rating information during the 2016 open enrollment period for the 2017 coverage year. The standards for QHP issuers regarding the collection and submission of validated quality measures data for the QRS are described in Part 156, Subpart L of this final rule.
For the reasons described above, we are finalizing the provision as proposed.
In § 155.1405, we proposed that the Exchange would prominently display results from the ESS on its Web site, in accordance with § 155.205(b)(1)(iv), as calculated by HHS, and in a form and manner specified by HHS, starting in 2016. We also proposed that the display of the QRS information (which incorporates member experience data from the ESS) by an Exchange would meet the requirement of displaying the ESS information and satisfy the standard outlined in 45 CFR 155.205(b)(1)(iv). The standards for QHP issuers regarding the collection and submission of validated data for the ESS are described in Part 156, Subpart L of this final rule.
We are finalizing this provision as proposed.
Section 156.122(c) requires issuers that provide EHB to have procedures in place that allow an enrollee to request and gain access to clinically appropriate drugs not covered by the plan. In the proposed rule, we sought comment on amending the sought comment on amending the formulary exceptions standards under § 156.122(c) to require that these processes can be expedited when necessary based on exigent circumstances, such as when an enrollee is suffering from a serious health condition or an enrollee is in a current course of treatment using a non-formulary drug. We considered, for example, whether issuers should be required to render decisions regarding formulary exceptions requests within 24 hours following the issuers' receipt of the exceptions requests, as suggested in the “2014 Letter to Issuers on Federally-facilitated and State Partnership Exchanges” (2014 Letter to Issuers).
We believe an exigency exists when an enrollee is suffering from a health condition that may seriously jeopardize the enrollee's life, health, or ability to regain maximum function or when an enrollee is undergoing a current course of treatment using a non-formulary drug. Either the enrollee (or enrollee's designee) or prescribing physician (or other prescribing provider as appropriate) may submit the request for an expedited review based on exigent circumstances. Issuers must be equipped to intake these requests in writing, electronically, and telephonically.
As part of the request for an expedited review based on exigent circumstances, the prescribing physician or other prescriber should support the request by including an oral or written statement that (1) an exigency exists and the basis for the exigency (that is, the harm that could reasonably come to the enrollee if the requested drug were not provided within the timeframes specified by the issuer's standard drug exceptions process), and (2) a justification supporting the need for the non-formulary drug to treat the enrollee's condition, including a statement that all covered formulary drugs on any tier will be or have been ineffective, would not be as effective as the non-formulary drug, or would have adverse effects.
Following a favorable decision on the expedited request, the enrollee must be provided access to the prescribed drug without unreasonable delay. Therefore, issuers need to be prepared to communicate rapidly with pharmacies and pharmacy benefit managers, as applicable. At a minimum, we expect issuers to update certificates of coverage to reflect the availability of this process and to be able to provide instruction to enrollees or their designees and providers or their designees regarding how to use the process. While these review standards are specific to the expedited review process, we encourage issuers to have a similar type of review process in place for their non-expedited review under § 156.122(c).
While some commenters recommended that issuers be required to provide coverage of the drug in question pending the outcome of the expedited request, we are also cognizant that some commenters opposed the proposal altogether and that we are finalizing an expedited timeframe for coverage determination under this process due to exigency as no more than 24 hours. Therefore, while we encourage issuers to provide the drug pending the outcome of the exceptions request, we are not requiring it at this time.
We are also concerned about enrollees having to continue to make requests under § 156.122(c) throughout the plan year to access the same clinically appropriate drug not on the plan's formulary, whether for each refill or otherwise, and for exceptions granted pursuant to the exigent circumstance exceptions process, issuers must make the drug available to the enrollee for the duration of the exigency. We will monitor this issue to consider whether we should propose additional standards through rulemaking.
Based on comments received, we are finalizing revisions to § 156.122(c) to require that a health plan's procedures include an expedited exceptions process based on exigent circumstances that is defined as when an enrollee is suffering from a health condition that may seriously jeopardize the enrollee's life, health, or ability to regain maximum function or when an enrollee is undergoing a current course of treatment using a non-formulary drug and that the health plan must make its coverage determination on such requests within no more than 24 hours after receiving them and continue to provide the drug for the duration of the exigency.
Under § 156.130(a), cost sharing for 2014 for self-only coverage may not exceed the annual dollar limit described in section 223(c)(2)(A)(ii)(I) of the Code. The proposed rule also provided that under § 156.130(b), for a plan year beginning in calendar year 2014, the annual deductible for a health plan in the small group market for self-only coverage could not exceed $2,000. However, § 156.130(b) is being removed from the regulation text to comply with Public Law 113–93, which eliminated the limits on deductibles for plans in the small group market.
For 2015 and later years, the annual limitation on cost sharing is to be increased by an amount equal to the product of the annual dollar amount described in section 223(c)(2)(A)(ii)(I) of the Code and the premium adjustment percentage established pursuant to paragraph (e) of that section. (The limitation for other than self-only coverage is twice the limitation for self-only coverage.) Under § 156.130(d), any increase in these annual limits that does not result in a multiple of $50 is to be rounded to the next lowest multiple of 50 dollars.
Section 156.130(e) provides that the premium adjustment percentage is the percentage (if any) by which the average per capita premium for health insurance coverage for the preceding calendar year exceeds such average per capita premium for health insurance for 2013, and that this percentage will be published annually in the HHS notice of benefit and payment parameters. The 2015 Payment Notice established our methodology for calculating the premium adjustment percentage.
In calculating limitations on cost sharing and small group deductible in the proposed 2015 Payment Notice, we rounded these limitations
As a result, we proposed to align our rounding rules with those used by the Department of the Treasury and the Internal Revenue Service, by amending § 156.130(d) to specify that when indexing the annual limitation on cost sharing and the annual limitation on small group deductibles for years after 2014, we will round to the multiple of 50 dollars that is lower than the number calculated by the formula.
Under the proposed amendment, using the 2015 premium adjustment percentage of 4.213431463 percent we established in the 2015 Payment Notice and the 2014 maximum annual limitation on cost sharing of $6,350 for self-only coverage, which was published by the IRS on May 2, 2013,
Similarly, under the proposed amendment to § 156.130(d), we applied the premium adjustment percentage for 2015 to calculate the annual limit on deductibles for the small group market for 2015. However, after the proposed rule was published, on April 1, 2014, the President signed into law Protecting Access to Medicare Act for 2014, which includes a provision that eliminates the annual limitation on deductibles for plans in the small group market. Therefore, there is no annual limitation on deductibles for small group plans, and the premium adjustment percentage is no longer applicable.
We are finalizing our proposal regarding rounding as proposed, and we are removing from our regulations references to the annual limit on deductibles for plans in the small group market under § 156.130(b) from § 156.130(c) and (d), and are removing § 156.130(b). The 2015 maximum annual limitation on cost sharing is $6,600 for self-only coverage and $13,200 for other than self-only coverage.
In § 156.200(b)(5), we proposed technical amendments to clarify that implementing and reporting for the QRS and implementing a quality improvement strategy are conditions of participation in an Exchange. Specifically, we proposed to include a reference to sections 1311(c)(3) and (c)(1)(E) of the Affordable Care Act to correctly align with other quality standards listed as part of QHP certification standards, including the ESS.
We also proposed to amend § 156.200 to add paragraph (h) to require that, in order to receive QHP certification, the offering issuer attest that, subsequent to receiving such certification, it will comply with all operational requirements contained in Part 156, Subparts D, E, H, K, L, and M. We proposed to add paragraph (h) to ensure that issuers seeking QHP certification understand and have fully committed to compliance with all operational requirements.
We received comments in support of the proposed amendments and therefore are finalizing § 156.200(b)(5) and (h) as proposed.
We refer readers to the preamble in connection with § 155.400 of this final rule for a discussion of comments on § 156.265.
The Affordable Care Act added section 5000A of the Code, which requires all non-exempt individuals to maintain minimum essential coverage or pay the individual shared responsibility payment. Section 5000A(f) of the Code defines minimum essential coverage as any of the following: (1) Coverage under a specified government sponsored program; (2) coverage under an eligible employer-sponsored plan; (3) coverage under a health plan offered in the individual market within a State; (4) coverage under a grandfathered health plan. In addition, section 5000A(f)(1)(E) of the Code directs the Secretary, in coordination with the Secretary of the Treasury, to designate other health benefits coverage as minimum essential coverage.
The Treasury Department and the IRS published final regulations under Code section 5000A on August 30, 2013 (78 FR 53646).
We proposed to amend § 156.602 by adding paragraph (e) to designate certain types of foreign group health coverage for expatriates as minimum essential coverage. These proposed provisions would codify previous CMS guidance published on October 31, 2013,
We are not finalizing this section of the proposed rule at this time. We will consider finalizing the proposal in the future, and will address comments received on the proposal at that time. In the interim, stakeholders and others can rely on the published October 31, 2013 guidance.
We are not finalizing the provision proposed in § 156.602(e) of the proposed rule at this time.
We proposed a technical correction in § 156.604 to clarify that health insurance issuers and plan administrators, in addition to sponsors of coverage and government agencies, may apply to HHS on behalf of a plan or coverage for recognition as minimum essential coverage.
We received no comments on this proposal and are finalizing the provision as proposed.
In § 156.800(d), we proposed that HHS may consult and share information about QHP issuers with other Federal and State regulatory and enforcement entities to the extent that the consultation and information is necessary for HHS to determine whether an enforcement remedy under subpart I is appropriate.
We are finalizing § 156.800(d) as proposed, with the modification of removing “to the extent that the consultation and information is necessary for HHS to determine whether an enforcement remedy under subpart I is appropriate” and replacing it with “to the extent that the consultation and information is necessary for purposes of State or Federal oversight activities.”
We did not receive comments on the proposed addition of § 156.805(d)(3) and are finalizing the provision as proposed.
We proposed adding § 156.806 to explain that HHS will provide a written notice to the issuer, to include a description of the potential violation, a 30-day period for the QHP issuer to respond and to provide additional information to refute an alleged violation.
We are finalizing the provisions proposed in § 156.806 of the proposed rule without modification.
In § 156.810, we proposed several modifications to better align our bases for decertification, including bases for expedited decertifications, with regulatory provisions which have been finalized and to clarify certain regulatory text. We proposed rewording paragraph (a)(6) to clarify that the certification criteria means the standards under subpart C of this part. We also proposed in § 156.810(d) that the FFE will be able to pursue an expedited decertification for violation of paragraph (a)(6). Additionally, we proposed clarifying in paragraph (a)(9) that violation of State or Federal law relating to internal claims and appeals and external review processes are bases for decertification under this paragraph. We proposed aligning the standards set forth under subparts K and M with the bases for decertification. We proposed adding a paragraph (12) to reflect that HHS may decertify a QHP if the QHP issuer substantially fails to meet the requirements related to the cases forwarded to QHP issuers under Subpart K, and adding a paragraph (13) to reflect that HHS may decertify a QHP if the QHP issuer substantially fails to meet the requirements in Subpart M.
We are finalizing the provisions proposed in § 156.810 of the proposed rule, correcting only the numbering of the added provisions in paragraph (a).
We proposed to amend § 156.1105 to include monitoring and appeals processes for HHS-approved ESS vendors that would apply for plan years beginning 2015. In paragraph (d), we proposed that HHS will monitor HHS-approved ESS vendors to ensure ongoing compliance with the application and approval standards in paragraphs (a) and (b). Further, we proposed that if HHS determines that an approved vendor is non-compliant with the standards outlined in paragraph (b), they may be removed from the approved list described in paragraph (c) and/or the submitted survey results may be ineligible to be included for ESS results. Lastly, we proposed in paragraph (e) an appeals process for an ESS vendor that submits an application to HHS for approval, as described in paragraph (a), and is not approved. Specifically, we proposed that an ESS vendor may appeal HHS's decision by notifying HHS in writing within 15 days of the notification of not being approved by HHS and submitting additional documentation demonstrating how the vendor meets the standards in paragraph (b). HHS would review the submitted documentation and make a final approval determination within 30 days from receipt of the additional documentation. An ESS vendor that becomes approved via the appeals process would be included in the approved list, described in paragraph (c).
We are finalizing the provisions proposed in § 156.1105 of the proposed rule without modification.
In § 156.1120, we proposed standards for QHP issuers offering coverage on Exchanges to collect and report the necessary information to implement the QRS pursuant to section 1311(c)(3) of the Affordable Care Act. In paragraph (a), we proposed data submission requirements for a QHP issuer for the information necessary to calculate the quality ratings for coverage offered on Exchanges under the QRS, and in § 156.1120(b), we proposed to direct a QHP issuer to annually submit data necessary to calculate the QHP's quality ratings to HHS and the Exchange, on a timeline and in a standardized form and manner specified by HHS. In paragraph (a)(1), we proposed that a QHP issuer must submit data to calculate quality ratings for each QHP that has been offered in an Exchange for at least one year. In paragraph (a)(2), we proposed to direct a QHP issuer to submit data that has been validated in a form and manner specified by HHS.
In paragraph (a)(3), we proposed that a QHP issuer must include information in its data submission only for those QHP enrollees at the reporting level specified by HHS that is necessary to calculate the quality ratings.
We noted that multi-State plans, as defined in § 155.1000(a), are subject to reporting QRS data for calculation of quality ratings by HHS, as described in paragraph (a). The U.S. Office of Personnel Management (OPM) will provide guidance on quality reporting to issuers with whom it holds multi-State plan contracts.
Lastly, in paragraph (c), we proposed that an issuer may reference its QHP's quality rating information in its marketing materials, in a manner specified by HHS. Similarly, in the subsequent section 156.1125 regarding the ESS, we proposed a similar marketing standard in § 156.1125(c) that a QHP issuer may reference the ESS results for its QHPs in its marketing materials, in a manner specified by HHS.
We are finalizing the proposed provision with the following modification: In paragraph § 156.1120(a)(3), we replace “at the reporting level specified by HHS” with “at the level specified by HHS” to better distinguish between the level at which collection of QRS data as well as the level of public display of QRS data that would be required.
At § 156.1125(a), we proposed to direct QHP issuers to contract with an HHS-approved ESS vendor, as identified by § 156.1105, to administer the ESS of the QHP's enrollees. We also proposed to direct a QHP issuer to authorize its contracted ESS vendor to report survey results to HHS and the Exchange on the issuer's behalf. In paragraph (b), we proposed several data requirements to clarify the standards for collection and submission of ESS data. At § 156.1125(b)(1), we proposed to direct a QHP issuer to collect data of eligible enrollees for each QHP with more than 500 enrollees in the previous year that has been offered in an Exchange for at least one year following a survey sampling methodology provided by HHS. In paragraph (b)(2), we proposed to direct a QHP issuer to submit data, necessary to conduct the ESS, that has been validated in a form and manner specified by HHS.
In paragraph (b)(3), we proposed to direct a QHP issuer to include only those QHP enrollees at the reporting level specified by HHS, for data submitted for the ESS.
In paragraph (d), we proposed to direct a QHP issuer to submit data necessary to conduct the survey to its contracted ESS vendor on a timeline and in a form and manner specified by HHS. We stated our intention to align the timeframes of the proposed reporting requirements for the ESS and the QRS.
We also noted that Multi-State Plans, as defined in 45 CFR 155.1000(a), are subject to providing the data described in paragraph (b). The OPM will provide guidance on ESS reporting to issuers with whom it holds Multi-State Plan contracts.
Sections 1313 and 1321(a) of the Affordable Care Act provide the Secretary with general authority to establish standards and regulations related to Exchanges, QHPs, and other components of title I of the Affordable Care Act. In § 155.1200(b)(3), we direct State Exchanges to submit performance monitoring data on an annual basis, which would include information on consumer satisfaction. Pursuant to this legal authority, HHS proposed a consumer experience survey, or the Marketplace survey, to assess consumer experience with the Exchanges
We are finalizing the proposals for ESS and Marketplace Surveys with the following modification: In paragraph § 156.1125(b)(3), we replace “at the reporting level specified by HHS” with “at the level specified by HHS” to better distinguish between the level at which collection and submission of ESS data by QHP issuers that would be required, as opposed to the level of public display or reporting of ESS data by Exchanges that would be required.
In September 2012, the Secretary changed the date on which issuers are required to adopt ICD–10 as the standard medical code set from October 1, 2013 to October 1, 2014. Subsequently, the Protecting Access to Medicare Act of 2014 (Pub. L. 113–93), enacted on April 1, 2014, mandated that this date be further delayed to October 1, 2015. Because the ICD–10 implementation date has been postponed past 2013, issuers may incur conversion costs beyond 2013 that would otherwise have been incurred only in 2012 and 2013. Therefore, in the proposed rule, we proposed to permit issuers to continue including their ICD–10 conversion costs as activities that improve health care quality (QIA), up to 0.3 percent of an issuer's earned premium in the relevant State and market, through the MLR reporting year in which ICD–10 implementation is required by the Secretary.
We are finalizing the changes to § 158.150 as proposed.
In the proposed rule, we proposed to amend § 158.220(a) and § 158.231(a) to specify that the individual and small group market data must always be aggregated if a State requires these two markets to be merged, and to amend § 158.211 to clarify that if a State establishes a higher MLR standard for the merged market, this higher standard must be used to calculate any rebates for the merged market.
We are finalizing the amendments proposed in §§ 158.211, 158.220, and 158.231 of the proposed rule without modification.
On November 14, 2013, the Federal government announced a policy under which, if certain conditions were met, it would decline to enforce certain specified 2014 market reforms against certain non-grandfathered health insurance coverage in the individual or small group market renewed between January 1, 2014 and October 1, 2014, and requested that States adopt a similar non-enforcement policy.
As we explained in the proposed rule, issuers that provided transitional coverage may have incurred additional administrative costs, such as expenses related to developing and sending required consumers notices, and creating and submitting new policy and rate filings. As further stated in the proposed rule, we also recognize that issuers of QHPs in the individual and small group markets may have incurred costs due to technical issues during the launch of the State Exchanges and FFEs.
Therefore, in the proposed rule, we proposed to account for the special circumstances of plans affected by the transitional policy and plans affected by the technical issues during the launch of the State Exchanges and FFEs by amending § 158.221 to allow for an adjustment to the MLR calculation for such issuers. Specifically, we proposed to allow issuers offering transitional coverage in the individual and small group markets to multiply the incurred claims and expenses for quality improving activities incurred in 2014 in the MLR numerator by 1.0001. We also proposed to allow issuers offering coverage through the State and Federal Exchanges in the individual and small group markets to multiply the incurred claims and expenses for quality improving activities incurred in 2014 in the MLR numerator by 1.0004. These adjustments would only extend to issuers in the individual and/or small group markets that offered transitional coverage or participated in the State Exchanges and FFEs, and only for the 2014 reporting year. A transitional policy cost adjustment to the formula for calculating an issuer's MLR would not apply in States that did not implement the transitional policy, or in States that did, to issuers that did not elect to implement it. Similarly, the proposed adjustment to the formula for calculating an issuer's MLR related to the initial Exchange technical issues would not be available to issuers that did not elect to participate in the Exchanges.
In contrast, other commenters expressed concern that adjustments to the MLR formula may undermine the MLR program's effectiveness in keeping premiums down, and urged CMS not to extend the proposed adjustments beyond 2014. One commenter further requested that issuers be required to demonstrate that they in fact incurred additional administrative costs.
We are finalizing the amendments proposed in § 158.221 of the proposed rule without modification.
The MLR December 7, 2011 final rule defines the threshold amounts below which rebates are considered to be
We are not finalizing the amendments proposed in § 158.243 of the proposed rule at this time.
For the most part, this final rule incorporates the provisions of the proposed rule. Those provisions of this final rule that differ from the proposed rule are as follows:
• Adds definitions of “product” and “plan” and clarifies that standards for uniform modification related to benefits and cost sharing apply at the plan-level.
• Applies the definition of uniform modification of coverage and renewal notice requirements to issuers offering coverage in the small group market.
• Indicates that a State may only broaden the uniform modification standard criteria addressing cost-sharing structure and service area.
• Adds language to clarify and amend the term “pursuant to applicable Federal or State requirements.”
• Deletes the reference to “counties” in the service area criterion.
• Adds that an opt-out election for multiple self-funded, non-Federal governmental plans subject to a single collective bargaining agreement must specify each group health plan subject to the agreement.
• Adds that a sponsor submitting opt-out elections for multiple self-funded, non-Federal governmental plans that are not subject to a collective bargaining agreement, must submit a separate opt-out election document for each such plan.
• Replaces the special rule for timely filings of opt-out elections by U.S. mail with a special rule for timely filings of opt-out elections in electronic format, and provides that if the latest filing date falls on a Saturday, Sunday, or a State or Federal holiday, CMS accepts filings submitted the next business day.
• Applies the definition of uniform modification of coverage and renewal notice requirements only to issuers offering coverage in the individual and small group markets.
• Adds language to clarify and amend the term “pursuant to applicable Federal or State requirements.”
• Indicates that a State may only broaden the uniform modification standard criteria addressing cost-sharing structure and service area.
• Deletes the reference to “counties” in the service area criterion.
• Adds that Medicare eligibility or entitlement is not a basis for nonrenewal or termination of an individual's health insurance coverage in the individual market.
• Applies the definition of uniform modification of coverage and renewal notice requirements to issuers offering coverage in the individual market.
• Adds language to clarify and amend the term “pursuant to applicable Federal or State requirements.”
• Indicates that a State may only broaden the uniform modification standard criteria addressing cost-sharing structure and service area.
• Deletes the reference to “counties” in the service area criterion.
• Aligns introductory text with the statutory language.
• Clarifies that, to be an excepted benefit, fixed indemnity insurance in the individual market can be provided only to individuals who attest in their application (1) that they have other health coverage that is minimum essential coverage; or (2). that they are treated as having minimum essential coverage due to their status as a bona fide resident of any possession of the United States pursuant to Code section 5000A(f)(4)(B).
• Clarifies that fixed indemnity insurance pays in a fixed dollar amount per period of hospitalization or illness, per service, or both.
• Requires notice to be displayed in the application for the fixed indemnity insurance (as opposed to the plan materials).
• Adds a new paragraph specifying an applicability date for the minimum essential coverage and notice requirements to policies issued on or after January 1, 2015. For policies issued before that date, this paragraph also specifies an applicability date for the notice requirement to plan years beginning on or after January 1, 2015, and for the attestation requirement, to plan years beginning on or after October 1, 2016.
• Modifies our allocation of reinsurance collections if those collections fall short of our estimates for a particular benefit year: we will allocate the reinsurance collections for that benefit year first to the reinsurance payment pool, and second to administrative expenses and the U.S. Treasury.
• Makes technical revisions to § 155.120(c) to clarify that organizations must comply with other, non-Exchange, applicable non-discrimination statutes.
• Revises § 155.120(c)(2) to clarify that organizations that limit their provision of certified application counselor services to a defined population under this exception must still comply with the non-discrimination provisions in paragraph (c)(1)(ii) with respect to the provision of these services to that defined population.
• Clarifies that the requirements applicable to consumer assistance entities under this section refer to the applicable Federal regulatory requirements that have been implemented pursuant to section 1321(a)(1) of the Affordable Care Act, including provisions of any agreements, contracts, and grant terms and conditions between HHS and the consumer assistance entity that interpret those statutory and regulatory requirements or establish procedures for compliance with them.
• Clarifies that HHS must provide a written notice to a consumer assistance entity of its investigation, rather than requiring HHS to provide a written notice to an entity each time HHS learns of a potential violation.
• Adds a factor allowing HHS to take into consideration whether other remedies or penalties have been imposed for the same conduct or occurrence.
• Provides a six-year statute of limitations period.
• Removes the provision specifying non-Federal standards that prohibit any individual or entity from acting as Navigators that would be eligible to participate under standards applicable to the FFE.
• Renumbers and extends to all Exchanges the provision regarding non-Federal standards that would, as applied or implemented in a State, prevent the application of Federal requirements applicable to Navigators. Adds specification for requirements that prevent the Exchange's implementation of the Navigator program consistent with Federal requirements.
• Revises the provision specifying requirements to carry errors and omissions coverage and replaces it with “any requirement that, in effect, would render all Navigators in the Exchange to be licensed agents and brokers.”
• Adds that in an FFE, no health care provider individual or entity shall be ineligible to operate as a Navigator solely because it receives consideration from a health insurance issuer for health care services provided.
• Adds that in an FFE, no individual or entity shall be ineligible to operate as a Navigator solely on the basis that it does not maintain its principal place of business in the Exchange service area.
• Moves the provision prohibiting compensation on a per-application, per-individual-assisted, or per-enrollment basis to § 155.215 to apply only in the FFE.
• Adds that gifts, gift cards, or cash may exceed nominal value for the purpose of providing reimbursement for legitimate expenses incurred by a consumer in effort to receive Exchange application assistance, such as, but not limited to, travel or postage expenses.
• Adds that Exchange funds cannot be used to purchase gifts or gift cards, or promotional items that market or promote the products or services of a third party.
• Adds that consumers may be solicited by going door-to-door or other unsolicited means of direct contact, including calling a consumer if there is a pre-existing relationship and other applicable laws are complied with.
• Adds that outreach and education activities may include going door-to-door or other unsolicited means of direct contact, including calling a consumer.
• Adds that automatic telephone dialing system or an artificial or prerecorded voice may be used to initiate contact consumers if there is a pre-existing relationship and other applicable laws are complied with.
• Changes the requirement to obtain authorization to access a consumer's personally identifiable information in a form and manner determined by the Secretary to a form and manner determined by the Exchange, adds that the authorization must be retained in a form and manner determined by the Exchange, and clarifies the retention period is no less than six years. Removes explicit reference to Federal regulations at 45 CFR 92.42 and 45 CFR 74.53.
• Clarifies that the duty to provide information in a fair, accurate and impartial manner includes providing fair, impartial, and accurate information that assists consumers with submitting the eligibility application, clarifying the distinctions among QHPs, and helping consumers make informed decisions during the health coverage selection process.
• Expressly enumerates, rather than incorporates applicable provisions under § 155.210 by reference, the provisions regarding non-Federal standards that would prevent the application of the provisions of title I of the Affordable Care Act as applied to the non-Navigator assistance personnel program subject to § 155.215.
• Removes the provision specifying non-Federal standards that prohibit any individual or entity from acting as non-Navigator assistance personnel subject to § 155.215 that would be eligible to participate under standards applicable to the FFE.
• Extends to all Exchanges the provision regarding non-Federal standards that would, as applied or implemented in a State, prevent the application of Federal requirements applicable to non-Navigator assistance personnel subject to § 155.215. Adds specification for requirements that prevent the Exchange's implementation of the non-Navigator assistance program consistent with Federal requirements.
• Adds that in an FFE, no health care provider individual or entity shall be ineligible to operate as non-Navigator assistance personnel solely because it receives consideration from a health insurance issuer for health care services provided.
• Adds that in an FFE, no individual or entity shall be ineligible to operate as non-Navigator assistance personnel solely on the basis that it does not maintain its principal place of business in the Exchange service area.
• Adds a provision prohibiting compensation on a per-application, per-individual-assisted, or per-enrollment basis to § 155.215 to apply only in the Federally-facilitated Exchange.
• Adds an effective date of November 15, 2014 for the prohibition on compensation on a per-application, per-individual-assisted, or per-enrollment basis.
• Changes the requirement to obtain and maintain authorization to access a consumer's personally identifiable information in a form and manner determined by the Secretary to a form and manner determined by the Exchange, and clarifies the retention period is no less than six years.
• Adds duty to provide information to individuals and employees about the full range of QHP options and insurance affordability programs for which they are eligible, which includes providing fair, impartial, and accurate information that assists consumers with submitting the eligibility application, clarifying the distinctions among QHPs, and helping consumers make informed decisions during the health coverage selection process.
• Revises provision specifying referrals to third parties not required to act in the best interest of applicants assisted to those not required to provide fair, accurate, and impartial information.
• Removes the provision specifying non-Federal standards that prohibit any individual or entity from acting as certified application counselors that would be eligible to participate under standards applicable to the FFE.
• Renumbers and extends to all Exchanges the provision regarding non-Federal standards that would, as applied or implemented in a State, prevent the application of Federal requirements applicable to certified application counselors. Adds specification for requirements that prevent the Exchange's implementation of the certified application counselor program consistent with Federal requirements.
• Adds that in an FFE, no health care provider individual or entity shall be ineligible to operate as certified application counselors solely because it receives consideration from a health insurance issuer for health care services provided.
• Removes proposed requirement to maintain a physical presence in the Exchange service area. Adds that in an FFE, no individual or entity shall be ineligible to operate as a certified application counselor solely on the basis that it does not maintain its principal place of business in the Exchange service area.
• Adds that gifts, gift cards, or cash may exceed nominal value for the purpose of providing reimbursement for legitimate expenses incurred by a consumer in effort to receive Exchange application assistance, such as, but not limited to, travel or postage expenses.
• Adds that consumers may be solicited by going door-to-door or other unsolicited means of direct contact, including calling a consumer if there is a pre-existing relationship and other applicable laws are complied with.
• Adds that outreach and education activities may include going door-to-door or other unsolicited means of direct contact, including calling a consumer.
• Adds that automatic telephone dialing system or an artificial or prerecorded voice may be used to initiate contact consumers if there is a pre-existing relationship and other applicable laws are complied with.
• Adds an effective date of November 15, 2014 for the prohibition on compensation on a per-application, per-individual-assisted, or per-enrollment basis, and limits the application of this provision to certified application counselors in FFEs.
• Adds a requirement to obtain and maintain authorization to access a consumer's personally identifiable information in a form and manner determined by the Secretary to a form and manner determined by the Exchange, and changes the retention period for the authorization to access a consumer's personally identifiable information to no less than six years.
• Inserts the numerical penalty amount instead of a reference to section 1411(h) of the Affordable Care Act where the maximum penalty is specified.
• Revises the provisions proposed in 156.265(d)(1) of the proposed rule as the entire paragraph (d), and removes all 156.265(d)(2), allowing each Exchange to establish its own premium payment dates.
• Directs that QHP issuers must follow the transaction rules established by the Exchange in accordance with § 155.430(e).
• Removes the references to sections 1411(h)(1) and (2) of the Affordable Care Act and instead inserts the numerical maximum penalty amounts.
• Adds a factor allowing HHS to take into consideration whether other remedies or penalties have been imposed for the same conduct or occurrence at § 155.285(b)(1)(viii).
• Clarifies that starting in 2014, the Exchange must provide written notice of annual open enrollment to each enrollee no earlier than the first day of the month before the open enrollment period begins and no later than the first day of the open enrollment period.
• Clarifies that later coverage effective dates for birth, adoption, placement for adoption, or placement for foster care will be effective the first of the month.
• Clarifies that earlier effective dates are allowed if all issuers in an Exchange agree to effectuate coverage only on the first day of the specified month.
• Adds that consumers may report a move in advance of the date of the move.
• Establishes a special enrollment period for individuals losing medically needy coverage.
• Clarifies, in paragraphs (a) and (b), that the Exchange may adopt an exemption eligibility determination made by HHS for applications submitted before the start of open enrollment for 2016.
• Revises the conditions under which a SHOP may permit a one-year transition to employee choice.
• Adds a time frame for submission of the State Insurance Commissioner's recommendation that employee choice not be implemented and for the SHOP's decision based on that recommendation.
• Clarifies that the transitional policy only applies in 2015.
• Revised in 155.705(b)(3)(vi) that options should be singular as one option is available for FF–SHOPs and another for State-based SHOPs
• Limits the annual employer and employee election period, which begins no sooner than November 15, 2014, so that it applies only in FF–SHOPs.
• Requires a health plan's exception process to include the ability to expedite the reviews for exigent circumstances.
• Removes the annual limitation on deductibles for small group plans.
• Clarifies, for the QRS and the ESS, the distinction between the required level of data submission and collection by QHP issuers, specified by HHS, and the level of public reporting or display by Exchanges.
• Does not finalize requirements for distribution of
Section 553(d) of the APA (5 U.S.C. 553(d)) requires that a final rule be effective not less than 30 days from the date of its publication in the
A 30-day delay in the effectiveness of the amendments made to § 155.705 in this rule would mean that, in States with an FF–SHOP, State Insurance Commissioners could not comply with the deadline to recommend that employee choice not be implemented, and for a SHOP to make a decision based on that recommendation, as set forth in the rule. Pursuant to § 155.705(b)(3)(vii), HHS requires that both the State Insurance Commissioner's recommendation and the SHOP's decision be completed prior to the end of the window within which QHPs can submit applications for QHP certification, and that in States with an FF–SHOP, the State Insurance Commissioner's recommendations must be submitted on or before June 2, 2014. The QHP certification application window for the FFE is expected to open on May 27, 2014, and is expected to close on June 27, 2014. This would mean that issuers would not know whether employee choice would be available in a State within an FF–SHOP prior to the close of the QHP application window. Accordingly, issuers would be unable to make fully informed decisions about SHOP participation and appropriate product pricing when compiling and submitting their QHP certification applications, including the rate information included in their applications. This uncertainty regarding implementation of employee choice potentially could result in fewer QHPs being offered in the State's FF–SHOP or products being unnecessarily priced higher than necessary, which would negatively affect the small employers that would participate in the FF–SHOP, as well as their employees. In order to avoid these potential harms to small employers and employees, we believe the 30-day delay in the effective date of this provision would be impracticable and contrary to the public interest.
Additionally, it was impracticable for HHS to have proposed this approach sooner. The full scope of the issuer and State concerns about implementing employee choice that motivated the amendments to § 155.705 were not made known to HHS until early 2014. HHS previously had anticipated that its 2013 decision not to require employee choice in SHOPs in 2014 would provide issuers of QHPs and SADPs with ample time to prepare to fully implement employee choice for plan years beginning in 2015. However, early in 2014, HHS learned that some issuers and State Departments of Insurance continued to be concerned about the potential effect of employee choice on State small group markets. Because employee choice is, for the most part, a relatively new concept in the small group market and because many issuers and States do not have a lot of experience in an employee choice environment, we understand that some issuers believe they do not have sufficient information to make pricing and plan design decisions for 2015 that would not adversely affect small group market consumers.
For the reasons outlined above, CMS finds good cause under the APA, 5 U.S.C. 553(d)(3) to waive the delay in effective date and proceed directly with the issuance of a final rule with an immediate effective date.
Under the Paperwork Reduction Act (PRA) of 1995, we are required to provide 30-day notice in the
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
We are soliciting public comment on each of these issues, which contain ICRs. All comments received on these ICRs will be addressed at the time the 30-day notice is published to solicit public comments.
Under § 155.225(d)(7), certified application counselors are required to be recertified on at least an annual basis after successfully completing recertification training as required by the Exchange. Each Exchange is required to establish its own recertification process and standards consistent with these requirements. We expect that establishing a process for recertification will include creating a recertification request form (or similar document) in Exchanges that directly certify certified application counselors. We estimate that up to 18 State Exchanges will develop their own recertification request form.
There are recordkeeping requirements associated with developing and maintaining a request form. We estimate that the time burden associated with maintaining a copy of the request form will be .016 hours (1 minute); we assume that a mid-level health policy analyst will maintain electronic copies
There will also be third-party disclosure requirements for 18 State Exchanges associated with reviewing each certified application counselor's recertification request, which will require the Exchange to notify the individual of the result of its review and issue a new certificate for each individual who successfully completes recertification. This notice requirement will apply to the Exchange on an annual basis. We estimate that it will take a mid-level health policy analyst in the Exchange up to .08 hours (5 minutes) to notify an individual. The estimated cost burden is $4.11 for each individual notice, including the certificate. For purposes of this analysis, we estimate that there will be approximately 30,000 certified application counselors nationwide, or approximately 10,600 application counselors in 18 State Exchanges. The total cost burden will be approximately $2,422 for each State Exchange. The total burden for 18 State Exchanges will be approximately 883 hours and the total cost burden will be $43,593. There will be recordkeeping requirements associated with issuing each individual notice. We estimate that the time burden associated with maintaining a copy of the notice and certificate will be .016 hours (1 minute); we assume that a mid-level health policy analyst, with a labor cost of $49.35 an hour, will maintain electronic copies of the form at minimal cost, which we estimate as $0.79 per notice for each individual certified application counselor. The total recordkeeping burden for 10,600 certified application counselors in 18 State Exchanges is estimated to be 170 hours and the total cost burden will be $8,374, or $265 per Exchange.
For Exchanges that designate organizations to directly certify certified application counselors under § 155.225(b)(1), there will be requirements associated with implementing a recertification process under the applicable Exchange's standards. We expect that this process will include creating and issuing a recertification request form (or similar document) for an organization's certified application counselors to submit to indicate their intention to be recertified and provide an updated conflicts of interest disclosure or other attestations as may be required. We estimate that up to 5,000 designated organizations will develop their own recertification request form. We estimate that the development of a recertification request form will take a health policy analyst (at $49.35 labor cost per hour) up to 1 hour to create, a senior manager (at $79.08 labor cost per hour) up to .5 hours (30 minutes) for review, and an attorney (at $90.15 labor cost per hour) up to .5 hours (30 minutes) for legal review. We estimate that the one-time cost burden will be $134 for each organization. The total one-time burden for 5,000 organizations nationwide will be 10,000 hours and the total cost burden will be $670,000.
There will be recordkeeping requirements associated with developing and maintaining a request form. We estimate that the time burden associated with maintaining a copy of the request form will be .016 hours (1 minute); we assume that a mid-level health policy analyst with a labor cost of $49.35 an hour will maintain electronic copies of the form at minimal cost, which we estimate as $0.79 as a one-time requirement for each organization. The total one-time burden for 5,000 organizations nationwide is estimated to be 80 hours and the total cost burden will be $3,950.
There will also be third-party disclosure requirements for designated organizations associated with reviewing each certified application counselor's recertification request, which will require the organization to notify the individual of the result of its review and issue a new certificate as appropriate. This notice requirement will apply to the organization on an annual basis. For purposes of estimating the burden on designated organizations, we assume that of the estimated 30,000 certified application counselors nationwide, approximately 19,400 will be directly certified by designated organizations, or four certified applications counselors on average per designated organization. We estimate that it will take a mid-level health policy analyst up to .08 hours (5 minutes) to notify an individual and issue a new certificate. The estimated cost burden is $4.11 for each individual notice. For an estimated 19,400 certified application counselors nationwide, or approximately four certified application counselors on average in each organization, the total cost burden will be approximately $16.44 for each organization. The total burden for 5,000 designated organizations nationwide will be approximately 1,617 hours and the total cost burden will be approximately $79,734.
There will be recordkeeping requirements associated with issuing a certificate. We estimate that the time burden associated with maintaining a copy of each certificate issued at recertification will be .016 hours (1 minute). We assume that a mid-level health policy analyst with a labor cost of $49.35 an hour will maintain electronic copies of the form at minimal cost, which we estimate as $0.79 per certificate for each organization. The total recordkeeping cost per organization will be $3.16. The total burden for 5,000 organizations nationwide will be 323 hours and the total cost burden will be approximately $ 15,326.
There will be third-party disclosure requirements for individual certified application counselors associated with completing the requirements for recertification, whether done directly through the Exchange or through an Exchange-designated certified application counselor organization. Such recertification requirements will include completing Exchange required training and might also include satisfying other requirements consistent with the Exchange-established processes, such as providing conflicts of interest disclosures, other attestations and submitting a recertification request form (or similar document) and other attestations. These requirements will apply to certified application counselors on an annual basis. Although nothing prohibits individual certified application counselors or organizations from being funded through sources such as applicable private, State, or Federal programs, we expect that certified application counselors will not be guaranteed any specific funding. We estimate the professional wage of certified application counselors for this type of work as equivalent to that of an eligibility interviewer for assistance from government programs and agency resources. We estimate that it will take a certified application counselor with a labor cost of $26.65 an hour up to 0.17 hours (10 minutes) to complete and submit the recertification request to the organization or Exchange, as applicable. The estimated cost burden will be $4.53 for each individual seeking recertification. We estimate that there will be approximately 30,000 recertification requests provided, for a total burden of 5,000 hours and a total cost burden of $135,915 for all certified application counselors nationwide.
There will be third-party disclosure requirements associated with taking recertification training. We expect that an individual certified application counselor will provide proof to the organization or Exchange that he or she has successfully completed the recertification training, in accordance with the Exchange's process. We
In addition, there will be recordkeeping requirements associated with the training certification. We expect each person who receives training will obtain and maintain a record of training certification. We estimate that the time burden associated with maintaining proof of training certification is .016 hours (1 minute), since we assume this proof will be maintained through electronic copies, at minimal cost. The total cost estimated for each individual to maintain proof of training certification will be $0.43. The total burden will be 500 hours and the total cost burden will be $12,900 for all certified application counselors nationwide.
For purposes of the ICRs associated with these provisions, we use the same labor cost estimates that were used in the final Navigator and non-Navigator assistance personnel standards rule (Patient Protection and Affordable Care Act; Exchange Functions: Standards for Navigators and Non-Navigator Assistance Personnel, July 17, 2013, 78 FR 42842). Navigator personnel and non-Navigator assistance personnel to which § 155.215 applies are estimated to have a labor cost of $20 per hour. Project leads for Navigator and non-Navigator assistance entities to which § 155.215 applies are estimated to have a labor cost of $29 per hour. Senior executives for Navigator and non-Navigator assistance entities to which § 155.215 applies are estimated to have a labor cost of $48 per hour. These are estimates commonly used for estimating paperwork burden and do not represent a recommendation or a requirement of how much Navigator and non-Navigator personnel to which § 155.215 applies are to be paid. There is nothing in the regulations that require any of these workers to be paid any specific amount.
In the ICR currently approved under OMB control number 0938–1220, we noted that there were 105 Navigator grantee organizations at that time in FFEs, including SPEs, and we estimated that there were 3,000 individuals working as Navigators. We estimated the number of non-Navigator assistance project leads to be 300 and 1,800 for personnel and we use those estimates here as well.
In accordance with § 155.210(e)(6) and § 155.215(g), Navigators, as well as those non-Navigator personnel to whom § 155.215 applies, will be required to maintain procedures to inform consumers of the functions and responsibilities of Navigators and non-Navigator assistance personnel (as applicable), and to obtain authorization for the disclosure of consumer information to the Navigator or non-Navigator assistance personnel (as applicable). This will be a one-time requirement for the organization. We estimate that it will take a Navigator or non-Navigator assistance personnel project lead up to 2 hours to create the form for providing authorization to applicants, and a Navigator or non-Navigator senior executive up to 1 hour to review the procedure, for a total time burden of up to 3 hours. We estimate the cost burden associated with creating this procedure will be $106 per organization. The total cost for all 105 Navigator grantee organizations is estimated to be $11,130. The total cost for all 300 non-Navigator assistance personnel organizations is estimated to be $31,800.
There are also recordkeeping requirements associated with developing and maintaining a model agreement and authorization form. Each organization is expected to maintain a copy of the executed forms. We estimate that the time burden associated with maintaining a copy of executed agreement and authorization forms for each consumer will be 0.016 hours (1 minute); we assume these will be maintained through electronic copies with minimal cost.
In addition, there will be burdens on individual Navigators, as well as those non-Navigator assistance personnel to whom § 155.215 applies. Under § 155.210(e)(6) and § 155.215(g), respectively, Navigators and non-Navigator assistance personnel will be required to inform consumers of the functions and responsibilities of Navigators and non-Navigator assistance personnel and obtain authorization for the disclosure of consumer information to a Navigator or non-Navigator assistance personnel prior to obtaining the consumer's personally identifiable information. In the final rule on certified application counselors (78 FR 42824, 42854–42855), we estimated that it will take a certified application counselor 0.25 hours (15 minutes) to provide consumers with information about the functions and responsibilities of a certified application counselor, obtain their authorizations, and provide any applicable conflict of interest disclosures. Because here we are only estimating the time required to provide consumers with information about the functions and responsibilities of a Navigator or non-Navigator assistance personnel and obtain their authorization, we estimate that it will take a Navigator or non-Navigator assistance personnel 0.1667 hours (10 minutes) to perform this task. The total cost estimate for the consumer authorization process for Navigators and non-Navigator assistance personnel therefore will be $3.33. The total time burden on all 3,000 Navigators is estimated to be approximately 500 hours, and the total cost burden on all 3,000 Navigators is estimated to be $9,990. The total time burden on all 1,800 non-Navigator assistance personnel is estimated to be 300 hours, and the total cost burden on all 1,800 non-Navigator assistance personnel is estimated to be $5,994.
In § 156.1105 of this rule, we establish a monitoring and appeals process for HHS-approved ESS vendors. Specifically, in § 156.1105(d), we establish a process in which HHS will monitor approved vendors for ongoing compliance. HHS may require additional information from approved vendors to be periodically submitted in order to ensure continued compliance. We estimate that HHS will receive applications from approximately 40 ESS vendors. We estimate that it will take no longer than one hour for each vendor (at a cost of $24.10 per hour) to comply with any additional monitoring by HHS. Therefore, we estimate a total annual burden of 40 hours for all vendors for a total cost burden estimate of $964.00.
In § 156.1105(e) of this rule, we establish a process by which an ESS vendor that is not approved by HHS can appeal HHS's determination. It is estimated that filing an appeal with HHS will take no longer than one hour. We estimate that five survey vendors that apply may not be approved and all of those vendors will appeal HHS's determination and submit additional documentation to HHS. Therefore, we estimate five responses, for a total of five burden hours, for a total cost of $120.50.
The burden estimate associated with quality standards for QHP issuers related to the ESS outlined in
The burden with the Marketplace survey under § 155.1200(b)(3) will include the time, cost and effort related to survey respondents and has been approved under OMB Control Number 0938–1221. In addition, we will revise the information collection currently approved under OMB Control Number 0938–1119 to account for any additional burden for an Exchange if sampling data is needed from State Exchanges for CMS to administer the Marketplace survey.
The burden and cost estimates associated with quality standards for QHP issuers related to the QRS outlined in § 156.1120 include estimates for QRS measure data collection, validation, and submission to CMS. We estimate that a total of 575 QHP issuers will collect and report QRS measure data, by product type, using administrative data sources and medical records. Using the BLS labor category estimates for a general operations manager, computer programmer, business operations specialist, registered nurse, and medical records and health information analyst, the estimated annual cost and hourly burden for a QHP issuer will be 1650 hours or $117,424, for an issuer who has performance measures data collection experience. We estimate that approximately eighty percent of all issuers, or 460 issuers, have such experience. We anticipate additional software purchases to generate measure data and rates and increased third-party data validation fees for issuers that do not have the experience in data collection and reporting for the QRS as required in § 156.1120. Therefore, we estimate that the additional cost burden for each of the remaining 115 issuers will be approximately $102,500 in the initial year as they develop their data collection systems and processes, for a total of approximately $11,787,500. We estimate 948,750 hours or $67,518,800 as the total annual burden for the anticipated 575 QHP issuers to collect and report QRS data.
In § 155.1400 and § 155.1405, we direct that each Exchange must display, on its Web site, quality rating and ESS result information for QHPs offered on the Exchange. We estimate 18 State Exchanges and the FFE will collect the relevant QRS and ESS information for display. The burden estimate associated with these standards will include collection of the necessary data by each Exchange to display on its Web site. This burden and cost for Exchanges are currently approved under OMB Control Number 0938–1156 in the total estimates related to § 155.205(b) which requires the Exchange to maintain an up-to-date Internet Web site that provides information including ESS and quality ratings, on available QHPs offered on the Exchange. The provisions of this final rule will not affect the burden.
This rule amends the MLR provisions regarding the treatment of ICD–10 conversion costs. This rule further provides MLR calculation adjustments for issuers affected by the transitional policy announced in the CMS letter dated November 14, 2013 and for issuers participating in the Exchanges. This rule also clarifies how issuers are to calculate their MLRs in States that require the small group market and individual market to be merged. Both MLRs and rebates are reported on the MLR annual reporting form.
The burden for the existing information collection requirement is approved under OMB Control Number 0938–1164. This includes the annual reporting form and instructions that are currently used by issuers to submit MLR information to HHS. The MLR annual reporting form collects information on all distributed and owed rebate amounts. Prior to the July 31, 2015 deadline for the submission of the annual MLR report for the 2014 MLR reporting year, and in accordance with the PRA, HHS plans to solicit public comment and seek OMB approval for an updated MLR annual form that will reflect the changes in MLR calculations. We do not anticipate that the amendments finalized in this rule will increase the burden on issuers because the changes utilize data that is a subset of information that issuers already submit to HHS.
Section 155.206 describes the bases and processes HHS proposes to use to impose CMPs on noncompliant consumer assistance personnel and organizations. Section 155.285 describes the bases and processes HHS proposes to use to impose CMPs on persons who provide false or fraudulent information required under section 1411(b) of the Affordable Care Act or who knowingly and willfully use or disclose information in violation of section 1411(g) of the Affordable Care Act. The ICRs in these provisions are exempt from PRA requirements in accordance with 5 CFR 1320.4(a)(2) because this information will be collected during the conduct of an administrative action or investigation involving an agency against specific individuals or entities.
In § 148.220 of this rule, we require that issuers of individual market fixed indemnity insurance provide a notice stating that the coverage is not a substitute for major medical coverage and that lack of minimum essential coverage may result in an additional payment with one's taxes. For policies issued after January 1, 2015 the notice must be included in the application for coverage and for policies issued before that date, the notice must be delivered shortly before the first renewal date occurring on or after January 1, 2015. HHS has provided the exact text of the notice and it will not need to be customized. Sections 146.152, 147.106 and 148.122 of this rule provide that issuers that discontinue a product in the group or individual market, and issuers that provide the option to renew coverage in the small group or individual market, must provide written notices to enrollees in a form and manner specified by the Secretary. HHS will provide the exact text of the notices in future guidance and they will not need to be customized. The burden associated with these notices are not subject to the Paperwork Reduction Act of 1995 in accordance with 5 CFR 1320.3(c)(2).
Certifications of creditable coverage under § 148.124 will no longer be required to be provided starting December 31, 2014. The burden is currently approved under OMB Control Number 0938–0702. In the individual
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing a summary of this proposed information collection for public comment. Interested persons are invited to send comments regarding this collection's proposed burden estimates or any other aspect of this collection of information, including any of the following subjects: (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.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, we have also submitted to the Office of Management and Budget (OMB) the proposed information collection for their emergency review. While the collection is necessary to ensure compliance with an initiative of the Administration, we are requesting emergency review under 5 CFR 1320(a)(2)(i) because public harm is reasonably likely to result if the regular clearance procedures are followed. The approval of this data collection process is essential to ensuring that States seeking to transition to employee choice in 2015 can submit recommendations to the SHOP by the deadline established in this final rule, which, in the FF–SHOPs, is on or before June 2, 2014. Without an emergency clearance process, many States seeking to not implement employee choice in 2015 will not be able to submit their recommendation and have it reviewed in a timely manner by the SHOP. Given the short time until the QHP certification window opens and closes, it is critical that the information concerning this process be posted by the day of publication of this final rule so issuers are aware if their particular States will not be implementing employee choice in 2015 before they decide to participate and submit their final rates for certification during the initial QHP certification window. If CMS is required to delay recommendation collection and review, this will severely impede its ability to implement this transitional policy in the FF–SHOPs.
For the FF–SHOP States that would like to submit a recommendation that the FF–SHOP not implement employee choice in 2015, pursuant to § 155.705(b)(2), there will be a formal application process. This process will include the submission of a recommendation by the State's Insurance Commissioner. The written recommendation must adequately explain that it is the State Insurance Commissioner's expert judgment, based on a documented assessment of the full landscape of the small group market in his or her State, that not implementing employee choice would be in the best interests of small employers and their employees and dependents, given the likelihood that implementing employee choice would cause issuers to price products and plans higher in 2015 due to the issuers' beliefs about adverse selection. A State Insurance Commissioner's recommendation would need to be based on concrete evidence, including but not limited to discussions with those issuers expected to participate in the SHOP in 2015.
We estimate that the development of an application by the Insurance Commissioner will take up to 40 hours to create (at $50.00 labor cost per hour). We estimate that up to 16 States will submit the application and the one-time cost burden will be $2,000 for each State. The total burden for all States is estimated to be 640 hours or $32,000.
We are requesting OMB review and approval of this emergency collection by
Copies of the supporting statement and any related forms can be found at:
When commenting on this proposed information collection, please reference the CMS document identifier and the OMB control number. To be assured consideration, comments and recommendations must be received in one of the following ways by
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This final rule addresses various requirements applicable to health insurance issuers, Exchanges, Navigators, non-Navigator assistance personnel, and other entities under the Affordable Care Act. Specifically, the rule establishes standards related to product discontinuation and renewal, quality reporting, non-discrimination standards, minimum certification standards and responsibilities of QHP issuers, the SHOP, and enforcement remedies in FFEs. It also provides a number of amendments relating to the premium stabilization programs, calculation of annual limit on cost sharing, the MLR program, certified application counselor programs, affordability exemptions, standards regarding how enrollees may request access to non-formulary drugs under exigent circumstances, and guaranteed availability and renewability of coverage requirements. Additionally, it establishes the grounds for imposing CMPs on persons who provide false or fraudulent information to the Exchange and on persons improperly using or disclosing information; and modifies standards related to opt-out provisions for self-funded non-Federal
CMS has crafted this rule to implement the protections intended by Congress in an economically efficient manner. We have examined the effects of this rule as required by Executive Order 12866 (58 FR 51735, September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96–354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4), Executive Order 13132 on Federalism, and the Congressional Review Act (5 U.S.C. 804(2)). In accordance with OMB Circular A–4, CMS has quantified the benefits, costs and transfers where possible, and has also provided a qualitative discussion of some of the benefits, costs and transfers that may stem from this final rule.
Executive Order 12866 (58 FR 51735) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects; distributive impacts; and equity). Executive Order 13563 (76 FR 3821, January 21, 2011) is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866.
Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a final rule—(1) having an annual effect on the economy of $100 million or more in any one year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year), and a “significant” regulatory action is subject to review by the OMB. HHS has concluded that this rule is likely to have economic impacts of $100 million or more in any one year, and therefore meets the definition of “significant rule” under Executive Order 12866. Therefore, HHS has provided an assessment of the potential costs, benefits, and transfers associated with this final regulation.
Starting in 2014, qualified individuals and qualified employers are able to obtain coverage provided through Exchanges. The provisions, amendments and clarifications in this final rule address stakeholder concerns and inquiries and help ensure smooth functioning of health insurance markets and Exchanges and ensure that individuals have access to high quality and affordable health insurance coverage. In addition, this rule amends the methodologies for calculating the MLR to address ICD–10 conversion costs, MLR and rebate calculations in States that require the individual and small group markets to be merged, and to accommodate the special circumstances of issuers affected by the transitional policy announced in the CMS letter dated November 14, 2013, and issuers participating in the State and Federal Exchanges.
In accordance with OMB Circular A–4, Table VII.1 below depicts an accounting statement summarizing CMS's assessment of the benefits, costs, and transfers associated with this regulatory action. The period covered by the RIA is 2014–2018.
HHS anticipates that the provisions of this final rule will help ensure that all consumers have access to quality and affordable health care coverage and are able to make informed choices, ensure smooth operation of Exchanges, ensure that premium stabilization programs work as intended, provide flexibility to SHOPs and employers, and protect consumers from fraudulent and criminal activities and help to mitigate issuers' unexpected administrative costs and uncertainties around operations and the risk pool, and to stabilize the market as it continues to transition to full compliance with Affordable Care Act requirements. Affected entities such as QHP issuers, Navigators and non-Navigator assistance personnel, designated certified application counselor organizations, certified application counselors, survey vendors, and States may incur costs to comply with the provisions in this final rule, including administrative costs related to notices, surveys, training, and recertification requirements. In accordance with Executive Order 12866, HHS believes that the benefits of this regulatory action justify the costs.
The impacts of the existing regulations that are being amended and clarified in this final rule have already been addressed in RIAs included in previous rulemaking. This RIA only includes the impacts of new provisions and any changes to previous estimates as a result of amendments to existing provisions.
Provisions of this final rule will help ensure that all individuals have access to affordable and quality health insurance coverage and the necessary information to make informed choices. Making quality rating and ESS information available to consumers will allow them to make informed choices and provide issuers with an incentive to improve quality of care and consumer experience. The results from the Marketplace survey will drive quality improvement in Exchanges by collecting information on the consumer experience with the Exchange. In addition, the quality rating and ESS information will also provide regulators and stakeholders with information to use for monitoring and oversight purposes. The amendments to special enrollment periods will ensure that individuals who experience loss of coverage or exceptional circumstances have continued access to healthcare. The provisions regarding the formulary exceptions process will ensure that enrollees will have continued access to necessary prescription drugs.
The provisions of this final rule also establish minimum Federal standards that determine whether coverage modifications constitute continuance of an existing product in a market within a State for products offered both through and outside of an Exchange in the individual and small group markets. This will minimize unnecessary terminations of coverage and ensure predictability and continuity for consumers, while providing issuers the flexibility to make the necessary adjustments to coverage. The notices of product discontinuance and renewal will ensure that consumers have necessary information regarding their choices and the changes in coverage.
The amendments for fixed indemnity insurance will allow such plans to be sold as secondary to other health insurance coverage that meets the definition of minimum essential coverage. Such plans may also be sold to individuals who are deemed to have minimum essential coverage based on their status as bona fide residents of U.S. territories. This will allow individuals that buy such coverage to lower their out-of-pocket costs.
The adjustments to the transitional reinsurance program will help ensure that the reinsurance payment pool is sufficient to provide the premium stabilization benefits intended by the statute. This policy may lower premiums by reducing the uncertainty associated with reinsurance payments to individual market plans eligible for reinsurance payments. The adjustments to the risk corridors formula for the 2015 benefit year will help to mitigate issuers' unexpected administrative costs and uncertainties around operations and the risk pool, and to stabilize the market as it continues to transition to full compliance with Affordable Care Act requirements.
The provisions in this final rule will ensure that non-Federal requirements do not prevent Navigators, non-Navigator assistance personnel, certified application counselors and organizations from providing information and assisting individuals to make informed choices and obtain health insurance coverage. The provisions in this rule also specify some of the standards for Navigator and certified application counselor conduct that will ensure consumer protection
Aligning the start of annual employer election periods in the FF–SHOPs with the start of open enrollment in the corresponding individual market Exchange will benefit issuers. A uniform QHP filing and review timeline for both markets for 2015 will reduce confusion and provide efficiencies to scale in review, providing potential resource savings to QHP issuers. Removing the required minimum lengths of both the employer election period and the employee open enrollment period will provide additional flexibility to State-based SHOPs and employers and allow employers to select plans with the most up-to-date rate information.
The amendment to provide a one-year transition policy under which a SHOP will be permitted to not implement employee choice in 2015 will alleviate State and issuer concerns that employee choice would cause issuers to price their products and plans higher in 2015 due to issuers' beliefs about adverse selection. Allowing for this transitional policy in 2015 will provide minimal disruption to small group markets.
The amendment to our methodology for calculating the annual limitation on cost sharing may reduce cost sharing paid by some enrollees in the individual market.
The amendments to the MLR methodology in States that require the small group market and individual market to be merged will improve the consistency of MLR calculations among issuers in those States and improve the accuracy of rebate payments.
The methodology for determining the required contribution percentage will provide that determinations of affordability exemptions will take into account the rate of premium growth over the rate of income growth. We do not anticipate that this approach will significantly alter the number of individuals who are expected to enroll in health insurance plans or make shared responsibility payments.
Affected entities will incur costs to comply with the provisions of this final rule. Costs related to ICRs subject to PRA are discussed in detail in section VI and include administrative costs incurred by survey vendors to appeal application denials; costs to QHP issuers related to data submissions for QRS, ESS administration; costs related to notice and disclosure requirements for certified application counselor recertification, consumer authorization for Navigators and non-Navigator assistance personnel; costs to States to submit a recommendation for a 2015 transition to employee choice; and a reduction in costs for issuers in the individual market due to discontinuation of certification of creditable coverage. In this section, we discuss other costs related to the provisions of this rule.
Each Exchange must establish its own recertification process for certified application counselors and designated certified application counselor organizations. We expect that establishing a process for recertification will include updating recertification training materials in all Exchanges. We estimate that up to 18 State Exchanges will develop their own training materials. We expect that an Exchange will develop training materials for recertification on an annual basis. We assume that it will take a mid-level health insurance analyst (with an hourly labor cost of $49.35) 8 hours to update the training, 4 hours for a computer programmer (at $52.50 per hour) to update the online training module and 1 hour by a senior manager (at $79.08 per hour) to review. The total cost for each State Exchange is estimated to be approximately $680, and the total cost for18 State Exchanges will be approximately $12,240.
The requirement for appeals entities to dismiss an appeal if the request is received via telephonic signature (if the appeals entity is capable of accepting telephonic withdrawals) will make the process more efficient and may reduce costs to the appellant.
The ESS will impact enrollees responding to the survey, survey vendors and QHP issuers offering coverage in the Exchanges. In 2014, a psychometric test of the survey will be carried out, while in 2015 a beta test will be performed. The cost to issuers is addressed in section VI. We anticipate that in 2014, 4,200 enrollees will participate in the psychometric test and in 2015 onwards, 6,000,040 enrollees will complete the survey. The total cost in 2014 of administering the survey to enrollees is estimated to be approximately $45,549 and the total cost to enrollees and survey vendors is estimated to be approximately $6,507,964 in 2015 and future years. In 2014, only one survey vendor will conduct the psychometric test and in the following years, about 40 vendors are expected to conduct the survey.
The Marketplace survey will be administered by a survey vendor under contract with HHS. A psychometric test will be conducted in 2014 with a beta test in 2015. Consumers will incur burden to respond to the survey. We estimate that each response will take 0.4 hours for a total of 3,150 responses requiring 1,260 hours in 2014 and a total of 61,200 responses requiring 24,480 hours in 2015 onwards. Total costs will be approximately $30,366 in 2014 and $589,968 in following years.
Issuers that provide EHB should already have procedures in place that allow an enrollee to request and gain access to clinically appropriate drugs not covered by the plan. This final rule includes standards for a health plan's exception process that includes an expedited process for exigent circumstances. This final rule requires issuers to provide a decision on an exception request based on exigent circumstances and notify the enrollee or the enrollee's designee and the prescribing physician (or other prescriber as appropriate) of the determination no later than 24 hours after receiving the request. Depending on their current formulary exceptions processes, some issuers may incur costs to modify them to comply with these requirements.
Previously, the MLR regulation permitted inclusion of ICD–10 conversion costs in quality improving activity expenses only through the 2013 MLR reporting year. However, the date by which issuers are required to adopt ICD–10 as the standard medical code has been postponed past 2013. Therefore, this final rule permits issuers to include their ICD–10 conversion costs through the MLR reporting year in which the Secretary requires conversion to be completed. Based on the 2012 MLR data, we estimate that the ICD–10 provision reduced total rebates for 2012 by less than 2 percent.
This final rule also accounts for the special circumstances of issuers affected by the CMS November 2013 transitional policy by allowing those issuers to multiply the incurred claims and expenses for quality improving activities incurred in 2014 in the MLR numerator by 1.0001. This adjustment is limited to issuers that provided transitional coverage in the individual or small group markets in States that adopted the transitional policy. In addition, this final rule accounts for the special circumstances of the issuers that provided coverage through the State and Federal Exchanges by allowing those issuers to multiply the incurred claims and expenses for quality improving activities incurred in 2014 in the numerator by 1.0004. This adjustment is limited to issuers offering coverage in the individual or small group markets through the Exchanges. Based on the 2012 MLR data, we estimate that the adjustment for issuers affected by the transitional policy and for issuers affected by the Exchanges rollout may reduce the total rebates by 0.5 percent for 2014.
In addition, this final rule amends the MLR methodology to clarify how issuers must calculate MLRs in States that require the small group market and individual market to be merged for MLR calculation purposes. This will improve the consistency of MLR calculations among issuers in those States and improve the accuracy of rebate payments. Currently, only Massachusetts and Vermont require the small group market and individual market to be merged Vermont requirements take effect in 2014). If an issuer met the respective MLR standards in the separate markets, then this provision will not have any impact on rebates. However, if an issuer met the MLR standards only in one market and merging the two markets results in the issuer meeting (or being unable to meet) the MLR standards in the merged market, the issuer may have to pay lower (or higher) rebates and there will be a transfer from enrollees to issuers (or from issuers to enrollees). Based on the 2012 MLR data, we anticipate that this change may result in issuers paying an additional $3.8 million in rebates.
This rule revises the allocation of reinsurance contributions collected for the 2014 and 2015 benefit years so that if reinsurance collections fall short of our estimates, reinsurance collections are allocated first to the reinsurance pool, and second to administrative expenses and the U.S. Treasury on a pro rata basis. We expect that this policy will not have a significant effect on transfers, because we estimate that we will collect the full amount of reinsurance contributions to fully fund the reinsurance payment pool. This policy may lower premiums by reducing the uncertainty associated with reinsurance payments to individual market plans eligible for reinsurance payments. The Affordable Care Act creates a temporary risk corridors program for the years 2014, 2015, and 2016 that applies to QHPs, as defined in § 153.500. The risk corridors program creates a mechanism for sharing gains and losses between the Federal government and QHP issuers. The Affordable Care Act establishes the risk corridors program as a Federal program; consequently, HHS will operate the risk corridors program under Federal rules. The risk corridors program will help protect against inaccurate rate setting in the early years of the Exchanges by limiting the extent of issuer losses and gains. For the 2015 benefit year, we are adjusting the risk corridors formula to help mitigate QHP issuers' unexpected administrative costs. Although our initial modeling suggests that this adjustment can increase the total risk corridors payment amount made by the Federal government and decrease risk corridors receipts, we believe that this temporary program will be budget neutral on the net over three years.
Under the Executive Order, CMS is required to consider alternatives to issuing rules and alternative regulatory approaches. CMS considered the regulatory alternatives below:
Under this alternative, HHS would have required QHPs to collect ESS data from a single sample for each product (versus each product in each metal tier). This option would have reduced the cost for issuers who offer the same product in multiple tiers. However, collecting data at the product level would have prevented consumers from understanding differences in enrollee satisfaction at the individual product per tier level, which may vary with differences in cost sharing. This would have reduced the benefits that consumers derive from ESS data.
Under this alternative, HHS would have required QHPs to collect enrollee satisfaction information using the Medicaid CAHPS® instrument without further enhancement. The ESS will include more questions than the Medicaid CAHPS®—including detailed questions about the patient's costs—that are particularly appropriate to Exchange enrollees. Eliminating these questions would have reduced the cost to issuers, but also would have reduced benefits that consumers derive from the ESS data.
Under this alternative, HHS would have required QHPs to collect the QRS data at the same level (individual product per metal tier) as they collect ESS information. Assuming that QHPs offer each product in two metal tiers this option would have doubled the cost to QHPs of collecting QRS data. However, it might not have appreciably increased consumer information about QHPs in the early years of the Exchanges if the quality of care in the same product does not differ significantly within tiers (that is, the variation should only be by the configuration of cost sharing within a limited range of actuarial value). Further, a QHP's enrollment size at the product metal level may be too small in the early years of Exchange implementation to ensure reliable results.
Under this alternative, HHS would have required QHPs to collect enrollee satisfaction information from Exchange enrollees using the MA CAHPS® instrument. The ESS presently includes 29 more questions than MA CAHPS®. Use of the MA CAHPS® would have reduced the cost to consumers and also the QHP cost of data entry. However, the MA CAHPS® instrument and Star ratings are designed for a different population and are not necessarily suitable to measure experience among
CMS believes that the options adopted for this final rule will be more efficient ways to extend the protections of the Affordable Care Act to enrollees without imposing significant burden on issuers and States.
The Regulatory Flexibility Act (RFA) requires agencies that issue a rule to analyze options for regulatory relief of small businesses if a rule has a significant impact on a substantial number of small entities. The RFA generally defines a “small entity” as—(1) a proprietary firm meeting the size standards of the Small Business Administration (SBA), (2) a nonprofit organization that is not dominant in its field, or (3) a small government jurisdiction with a population of less than 50,000 (States and individuals are not included in the definition of “small entity”). HHS uses as its measure of significant economic impact on a substantial number of small entities a change in revenues of more than 3 percent to 5 percent.
As discussed in the Web Portal interim final rule with comment period published on May 5, 2010 (75 FR 24481), HHS examined the health insurance industry in depth in the RIA we prepared for the proposed rule on establishment of the Medicare Advantage program (69 FR 46866, August 3, 2004). In that analysis it was determined that there were few, if any, insurance firms underwriting comprehensive health insurance policies (in contrast, for example, to travel insurance policies or dental discount policies) that fell below the size thresholds for “small entity” established by the SBA. Based on data from MLR annual report submissions for the 2012 MLR reporting year,
The amendments to the annual employer and employee election periods in the SHOPs, including removing the required minimum lengths of both the employer election period and the employee open enrollment period will benefit State-based SHOPs and employers. HHS does not anticipate that this will impose any costs on small employers.
Some of the entities that voluntarily act as Navigators and non-Navigator assistance personnel subject to § 155.215, or as designated certified application counselor organizations, may be small entities and will incur costs to comply with the provisions of this final rule. It should be noted that HHS, in its role as the operator of the FFEs, does not impose any fees on these entities for participating in their respective programs, nor are there fees for taking the Federally required training or completing continuing education or recertification in FFEs. Further, the cost burden related to continuing education and recertification, and recordkeeping will generally be considered an allowed cost that will be covered by the Navigator grants for the FFEs, and these grant funds may be drawn down as the grantee incurs such costs. The costs associated with these proposals may also be covered by other compensation provided by an Exchange, such as payments through contracts to non-Navigator assistance personnel. Though it is very likely that all costs associated with these proposals will be largely covered by affected entities' and individuals' funding sources, HHS cannot guarantee that all such costs will be covered because of the possibility of budget limitations applicable to the FFE in any given period, and because there may be variations in how State Exchanges provide funding for these programs. To the extent that all such costs will not be covered by these funding sources, other outside sources may also be available to cover unfunded costs that remain. Costs incurred by designated certified application counselor organizations related to continuing education and recertification and recordkeeping are expected to be low. In some circumstances funds from sources outside of the Exchange, including Federal funds such as Health Resources and Services Administration (HRSA) grants to health centers, or private or State funds may be available to cover certified application counselor costs.
Section 202 of the Unfunded Mandates Reform Act (UMRA) of 1995 requires that agencies assess anticipated costs and benefits before issuing any final rule that includes a Federal mandate that could result in expenditure in any one year by State, local or tribal governments, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold level is approximately $141 million.
UMRA does not address the total cost of a final rule. Rather, it focuses on certain categories of cost, mainly those “Federal mandate” costs resulting from—(1) imposing enforceable duties on State, local, or tribal governments, or on the private sector; or (2) increasing the stringency of conditions in, or decreasing the funding of, State, local, or tribal governments under entitlement programs.
This final rule includes mandates on State governments and the private sector. Issuers, non-Navigator assistance personnel, certified application counselors and Exchanges are expected to incur costs of approximately $13 million in 2014 and approximately $85 million in 2015 onwards to comply with the provisions of this final rule. However, beginning in 2015, issuers in the individual market will experience a reduction in costs of approximately $26 million due to the discontinuation of the certification of creditable coverage. Consistent with policy embodied in UMRA, this final rule has been designed to be the least burdensome alternative for State, local and tribal governments, and the private sector while achieving the objectives of the Affordable Care Act.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a final rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications.
Since States are the primary regulators of health insurance coverage, State laws will continue to apply to health insurance coverage and the business of insurance. A State's authority to pass and implement
The final rule provides that non-Navigator assistance personnel subject to § 155.215, and certified application counselors must meet any licensing, certification or other standards prescribed by the State so long as such standards do not prevent the application of the provisions of title I of the Affordable Care Act, within the meaning of section 1321(d) of the Affordable Care Act. The final rule also includes a non-exhaustive list of non-Federal requirements applicable to Navigators, non-Navigator assistance personnel subject to § 155.215, and certified application counselors that, in HHS's view, prevent the application of the provisions of title I of the Affordable Care Act, within the meaning of section 1321(d) of the Affordable Care Act. They include non-Federal requirements that require referrals to entities or individuals not required to provide impartial information or act in a consumer's best interest; non-Federal requirements that prevent Navigators, non-Navigator assistance personnel subject to § 155.215, or certified application counselors from providing services to all individuals seeking assistance; non-Federal requirements that prevent these assisters from providing information regarding substantive benefits or comparative benefits of different health plans; non-Federal requirements that facially, or as applied, make it impossible to fulfill required duties; non-Federal standards that would, as applied or as implemented in a State, prevent an Exchange's implementation of the programs for Navigators, non-Navigator personnel subject to § 155.215 and certified application counselors consistent with Federal requirements; and non-Federal requirements that Navigators hold an agent or broker license or requirements that, in effect, would require all Navigators in the Exchange to be licensed agents and brokers. These provisions provide HHS's interpretation of how the preemption standard that Congress established in section 1321(d) of the Affordable Care Act applies to this non-exhaustive list of non-Federal requirements for these assister programs.
The final rule establishes Federal standards to determine whether coverage modifications constitute the continuance of an existing product in a market within a State for coverage offered both through and outside of an Exchange in the individual and small group markets. Some States may have different definitions of what changes to a health insurance product constitute modifications and what changes constitute terminations and re-filings of new products. The definitions finalized in this rule will preempt any conflicting State definitions. The guaranteed renewability sections of the PHS Act provide in pertinent part that a uniform modification of coverage must be “consistent with State law.” We interpret this statutory language as governing the extent or type of modifications that may legally be made under State law. As discussed in the preamble to the final rule published on February 27, 2013 under section 2703 of the PHS Act (78 FR 13419), State laws that prevent issuers from uniformly modifying coverage to comply with Federal law requirements would, in effect, prevent the application of such requirements and therefore be preempted. States, however, have the flexibility to broaden the scope of two of the criteria for what is considered a uniform modification, but not narrow its scope.
Some States already have requirements for and publicly report health plan quality and outcomes data, and we want to encourage State flexibility and innovation, consistent with the Affordable Care Act. In addition to prominently displaying quality rating information for each QHP, as calculated by HHS in accordance with the QRS, a State Exchange may display additional QHP quality-related information, as appropriate.
In compliance with the requirement of Executive Order 13132 that agencies examine closely any policies that may have Federalism implications or limit the policymaking discretion of the States, HHS has engaged in efforts to consult with and work cooperatively with affected States. HHS has consulted with stakeholders on policies related to the operation of Exchanges, including the SHOP and the premium stabilization programs. HHS has held a number of listening sessions with State representatives to gather public input. HHS consulted with State representatives through regular meetings with the NAIC and regular contact with States through the Exchange Establishment grant and Exchange Blueprint approval processes.
Throughout the process of developing this final rule, HHS has attempted to balance the States' interests in regulating health insurance issuers and other entities, such as Navigators, non-Navigator assistance personnel, and certified application counselors with creating a Federal baseline for protecting the consumers' interests. By doing so, it is HHS' view that it has complied with the requirements of Executive Order 13132. Under the requirements set forth in section 8(a) of Executive Order 13132, and by the signatures affixed to this rule, HHS certifies that the CMS Center for Consumer Information and Insurance Oversight has complied with the requirements of Executive Order 13132 for the attached final rule in a meaningful and timely manner.
This final rule is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), which specifies that before a rule can take effect, the Federal agency promulgating the rule shall submit to each House of the Congress and to the Comptroller General a report containing a copy of the rule along with other specified information, and has been transmitted to Congress and the Comptroller General for review.
Health care, Health insurance, Reporting and record keeping requirements.
Health care, Health insurance, Reporting and recordkeeping requirements.
Health care, Health insurance, Reporting and recordkeeping requirements, State regulation of health insurance.
Administrative practice and procedure, Health care, Health insurance, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Adverse selection, Health care, Health insurance, Health records, Organization and functions
Administrative practice and procedure, Claims, Health care, Health insurance, Health plans, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Health care access, Health insurance, Reporting and recordkeeping requirements, State and local governments, Cost-sharing reductions, Advance payments of premium tax credit, Administration and calculation of advance payments of the premium tax credit, Plan variations, Actuarial value.
Administrative appeals, Administrative practice and procedure, Administration and calculation of advance payments of premium tax credit, Advertising, Advisory Committees, Brokers, Conflict of interest, Consumer protection, Cost-sharing reductions, Grant programs-health, Grants administration, Health care, Health insurance, Health maintenance organization (HMO), Health records, Hospitals, American Indian/Alaska Natives, Individuals with disabilities, Loan programs-health, Organization and functions (Government agencies), Medicaid, Payment and collections reports, Public assistance programs, Reporting and recordkeeping requirements, State and local governments, Sunshine Act, Technical assistance, Women, and Youth.
Administrative practice and procedure, Claims, Health care, Health insurance, Health plans, Penalties, Reporting and recordkeeping requirements, Premium revenues, Medical loss ratio, Rebating.
For the reasons set forth in the preamble, the Department of Health and Human Services amends 45 CFR parts 144, 146, 147, 148, 153, 154, 155, 156, and 158 as set forth below:
Secs. 2701 through 2763, 2791, and 2792 of the Public Health Service Act, 42 U.S.C. 300gg through 300gg–63, 300gg–91, and 300gg–92.
Secs. 2702 through 2705, 2711 through 2723, 2791, and 2792 of the PHS Act (42 U.S.C. 300gg–1 through 300gg–5, 300gg–11 through 300gg–23, 300gg–91, and 300gg–92).
The revision and addition read as follows:
(b) * * *
(4)
(c) * * *
(1) The issuer provides notice in writing, in a form and manner specified by the Secretary, to each plan sponsor provided that particular product in that market (and to all participants and beneficiaries covered under such coverage) of the discontinuation at least 90 days before the date the coverage will be discontinued;
(f)
(i) Large group market; and
(ii) Small group market if, for coverage available in this market (other than only through one or more bona fide associations), the modification is consistent with State law and is effective uniformly among group health plans with that product.
(2) For purposes of paragraph (f)(1)(ii) of this section, modifications made uniformly and solely pursuant to applicable Federal or State requirements are considered a uniform modification of coverage if:
(i) The modification is made within a reasonable time period after the imposition or modification of the Federal or State requirement; and
(ii) The modification is directly related to the imposition or modification of the Federal or State requirement.
(3) For purposes of paragraph (f)(1)(ii) of this section, other types of modifications made uniformly are considered a uniform modification of coverage if the health insurance coverage for the product in the small group market meets all of the following criteria:
(i) The product is offered by the same health insurance issuer (within the meaning of section 2791(b)(2) of the PHS Act);
(ii) The product is offered as the same product network type (for example, health maintenance organization, preferred provider organization, exclusive provider organization, point of service, or indemnity);
(iii) The product continues to cover at least a majority of the same service area;
(iv) Within the product, each plan has the same cost-sharing structure as before the modification, except for any variation in cost sharing solely related to changes in cost and utilization of medical care, or to maintain the same metal tier level described in sections 1302(d) and (e) of the Affordable Care Act; and
(v) The product provides the same covered benefits, except for any changes in benefits that cumulatively impact the rate for any plan within the product within an allowable variation of +/−2 percentage points (not including changes pursuant to applicable Federal or State requirements).
(4) A State may only broaden the standards in paragraphs (f)(3)(iii) and (iv) of this section.
(h)
(a)
(i) Limitations on preexisting condition exclusion periods in accordance with section 2701 of the PHS Act as codified before enactment of the Affordable Care Act.
(ii) Special enrollment periods for individuals and dependents described under section 2704(f) of the PHS Act.
(iii) Prohibitions against discriminating against individual participants and beneficiaries based on health status under section 2705 of the PHS Act, except that the sponsor of a self-funded non-Federal governmental plan cannot elect to exempt its plan from requirements under section 2705(a)(6) and 2705(c) through (f) that prohibit discrimination with respect to genetic information.
(iv) Standards relating to benefits for mothers and newborns under section 2725 of the PHS Act.
(v) Parity in mental health and substance use disorder benefits under section 2726 of the PHS Act.
(vi) Required coverage for reconstructive surgery following mastectomies under section 2727 of the PHS Act.
(vii) Coverage of dependent students on a medically necessary leave of absence under section 2728 of the PHS Act.
(2)
(3)
(4)
(ii)
(5)
(B) [Reserved]
(ii) If a group health plan is co-sponsored by two or more employers, then only plan enrollees of the non-Federal governmental employer(s) with a valid election under this section are affected by the election.
(6)
(i) Subject to paragraph (a)(6)(ii) of this section, the purchase of stop-loss or excess risk coverage by a self-funded non-Federal governmental plan does not prevent an election under this section.
(ii) Regardless of whether coverage offered by an issuer is designated as “stop-loss” coverage or “excess risk” coverage, if it is regulated as group health insurance under an applicable State law, then for purposes of this section, a non-Federal governmental plan that purchases the coverage is considered to be fully insured. In that event, a plan may not be exempted under this section from the requirements described in paragraph (a)(1) of this section.
(7)
(b)
(i) Be made in an electronic format in a form and manner as described by the Secretary in guidance.
(ii) Be made in conformance with all of the plan sponsor's rules, including any public hearing requirements.
(iii) Specify the beginning and ending dates of the period to which the election is to apply. This period can be either of the following periods:
(A) A single specified plan year, as defined in § 144.103 of this subchapter.
(B) The “term of the agreement,” as specified in paragraph (b)(2) of this section, in the case of a plan governed by collective bargaining.
(iv) Specify the name of the plan and the name and address of the plan administrator, and include the name and telephone number of a person CMS may contact regarding the election.
(v) State that the plan does not include health insurance coverage, or identify which portion of the plan is not funded through health insurance coverage.
(vi) Specify each requirement described in paragraph (a)(1) of this section from which the plan sponsor elects to exempt the plan.
(vii) Certify that the person signing the election document, including (if
(viii) Include, as an attachment, a copy of the notice described in paragraph (f) of this section.
(ix) In the case of a plan sponsor submitting one opt-out election for all group health plans subject to the same collective bargaining agreement, include a list of plans subject to the agreement.
(x) In the case of a plan sponsor submitting opt-out elections for more than one group health plan that is not subject to a collective bargaining agreement, submit a separate election document for each such plan.
(2) “
(i) In the case of a group health plan for which the last plan year governed by a prior collective bargaining agreement expires during the bargaining process for a new agreement, the term of the prior agreement includes all plan years governed by the agreement plus the period of time that precedes the latest of the following dates, as applicable, with respect to the new agreement:
(A) The date of an agreement between the governmental employer and union officials.
(B) The date of ratification of an agreement between the governmental employer and the union.
(C) The date impasse resolution, arbitration or other closure of the collective bargaining process is finalized when agreement is not reached.
(ii) In the case of a group health plan governed by a collective bargaining agreement for which closure is not reached before the last plan year under the immediately preceding agreement expires, the term of the new agreement includes all plan years governed by the agreement excluding the period that precedes the latest applicable date specified in paragraph (b)(2)(i) of this section.
(3)
(ii)
(c)
(2)
(3)
(4)
(5)
(d)
(i) The last day of the plan year.
(ii) The 45th day after the date of CMS's written notification requesting additional information.
(2)
(3)
(e)
(ii) The notice must be in writing and, except as provided in paragraph (e)(2) of this section with regard to initial notices, must be provided to each enrollee at the time of enrollment under the plan, and on an annual basis no later than the last day of each plan year (as defined in § 144.103 of this subchapter) for which there is an election.
(iii) A plan may meet the notification requirements of paragraph (e) of this section by prominently printing the notice in a summary plan description, or equivalent description, that it provides to each enrollee at the time of enrollment, and annually. Also, when a plan provides a notice to an enrollee at the time of enrollment, that notice may serve as the initial annual notice for that enrollee.
(2)
(ii) In the case of a collectively bargained plan, with regard to the initial plan year to which an election under this section applies, the plan must provide the initial annual notice of the election to all enrollees before the first day of the plan year, or within 30 days after the latest applicable date specified in paragraph (b)(2)(i) of this section if
(A) Enroll on or after the first day of the plan year, when closure of the collective bargaining process is reached before the plan year begins; or
(B) Enroll on or after the latest applicable date specified in paragraph (b)(2)(i) of this section if that date falls on or after the first day of the plan year.
(3)
(i) The specific requirements described in paragraph (a)(1) of this section from which the plan sponsor is electing to exempt the plan, and a statement that, in general, Federal law imposes these requirements upon group health plans.
(ii) A statement that Federal law gives the plan sponsor of a self-funded non-Federal governmental plan the right to exempt the plan in whole, or in part, from the listed requirements, and that the plan sponsor has elected to do so.
(iii) A statement identifying which parts of the plan are subject to the election.
(iv) A statement identifying which of the listed requirements, if any, apply under the terms of the plan, or as required by State law, without regard to an exemption under this section.
(f)
(2)
(3)
(4)
(ii) If a single plan applies to more than one bargaining unit, and the plan is governed by collective bargaining agreements of varying lengths, paragraph (c)(2) of this section, with respect to an election renewal, applies to the plan as governed by the agreement that results in the earliest filing date.
(g)
(2)
(h)
(ii)
(iii)
(B)
(2)
(ii)
(i)
(1) CMS notifies the plan sponsor (and the plan administrator if other than the plan sponsor and the administrator's address is known to CMS) in writing that CMS has made a preliminary determination that an election is invalid, and States the basis for that determination.
(2) CMS's notice informs the plan sponsor that it has 45 days after the date of CMS's notice to explain in writing why it believes its election is valid. The plan sponsor should provide applicable statutory and regulatory citations to support its position.
(3) CMS verifies that the plan sponsor's response is timely filed as provided under paragraph (c)(3) of this section. CMS will not consider a response that is not timely filed.
(4) If CMS's preliminary determination that an election is invalid remains unchanged after CMS considers the plan sponsor's timely response (or in the event that the plan sponsor fails to respond timely), CMS provides written notice to the plan sponsor (and the plan administrator if other than the plan sponsor and the administrator's address is known to CMS) of CMS's final determination that the election is invalid. Also, CMS informs the plan sponsor that, within 45 days of the date of the notice of final determination, the plan, subject to paragraph (i)(1)(iii) of this section, must comply with all requirements of this part for the specified period for which CMS has determined the election to be invalid.
(j)
(k)
(1) Establishing, and enforcing compliance with, the requirements of State law (as defined in § 146.143(d)(1)), including requirements that parallel provisions of title XXVII of the PHS Act, that apply to non-Federal governmental plans or sponsors.
(2) Prohibiting a sponsor of a non-Federal governmental plan within the State from making an election under this section.
Secs. 2701 through 2763, 2791, and 2792 of the Public Health Service Act (42 U.S.C. 300gg through 300gg–63, 300gg–91, and 300gg–92), as amended.
(b) * * *
(1) * * *
(i)
(B) In the case of a group health plan in the small group market that cannot comply with employer contribution or group participation rules for the offering of health insurance coverage, as allowed under applicable State law and in the case of a QHP offered in the SHOP, as permitted by § 156.1250(c) of this subchapter, a health insurance issuer may restrict the availability of coverage to an annual enrollment period that begins November 15 and extends through December 15 of each calendar year.
(C) With respect to coverage in the small group market, and in the large group market if such coverage is offered through a Small Business Health Options Program (SHOP) in a State, coverage must become effective consistent with the dates described in § 155.725(a)(2) of this subchapter, except as provided in paragraph (b)(1)(iii) of this section.
(h)
The revisions and additions read as follows:
(b) * * *
(4)
(c) * * *
(1) The issuer provides notice in writing, in a form and manner specified by the Secretary, to each plan sponsor or individual, as applicable, provided that particular product in that market (and to all participants and beneficiaries covered under such coverage) of the discontinuation at least 90 calendar days before the date the coverage will be discontinued.
(e)
(i) Large group market.
(ii) Small group market if, for coverage available in this market (other than only through one or more bona fide associations), the modification is consistent with State law and is effective uniformly among group health plans with that product.
(iii) Individual market if the modification is consistent with State law and is effective uniformly for all individuals with that product.
(2) For purposes of paragraphs (e)(1)(ii) and (iii) of this section, modifications made uniformly and solely pursuant to applicable Federal or State requirements are considered a uniform modification of coverage if:
(i) The modification is made within a reasonable time period after the imposition or modification of the Federal or State requirement; and
(ii) The modification is directly related to the imposition or modification of the Federal or State requirement.
(3) Other types of modifications made uniformly are considered a uniform modification of coverage if the health insurance coverage for the product in the individual or small group market meets all of the following criteria:
(i) The product is offered by the same health insurance issuer (within the meaning of section 2791(b)(2) of the PHS Act);
(ii) The product is offered as the same product network type (for example, health maintenance organization, preferred provider organization, exclusive provider organization, point of service, or indemnity);
(iii) The product continues to cover at least a majority of the same service area;
(iv) Within the product, each plan has the same cost-sharing structure as before the modification, except for any variation in cost sharing solely related to changes in cost and utilization of medical care, or to maintain the same metal tier level described in sections 1302(d) and (e) of the Affordable Care Act; and
(v) The product provides the same covered benefits, except for any changes in benefits that cumulatively impact the plan-adjusted index rate (as described in § 156.80(d)(2) of this subchapter) for any plan within the product within an allowable variation of +/−2 percentage points (not including changes pursuant to applicable Federal or State requirements).
(4) A State may only broaden the standards in paragraphs (e)(3)(iii) and (iv) of this section.
(f)
(2) If an issuer in the small group market is renewing coverage as described in paragraph (a) of this section, or uniformly modifying coverage as described in paragraph (e) of this section, the issuer must provide to each plan sponsor or individual, as applicable, written notice of the renewal at least 60 calendar days before the date of the coverage will be renewed in a form and manner specified by the Secretary.
(g)
(2) Medicare eligibility or entitlement is not a basis for nonrenewal or termination of an individual's health insurance coverage in the individual market.
Secs. 2701 through 2763, 2791, and 2792 of the Public Health Service Act (42 U.S.C. 300gg through 300gg–63, 300gg–91, and 300gg–92), as amended.
This part implements sections 2741 through 2763 and 2791 and 2792 of the PHS Act. Its purpose is to guarantee the renewability of all coverage in the individual market. It also provides certain protections for mothers and newborns with respect to coverage for hospital stays in connection with childbirth and protects all individuals and family members who have, or seek, individual health insurance coverage from discrimination based on genetic information.
(a)
(2) The requirements that pertain to guaranteed renewability for all individuals, to protections for mothers and newborns with respect to hospital stays in connection with childbirth, and to protections against discrimination based on genetic information apply to all issuers of individual health insurance coverage in the State.
(b)
The rules for guaranteeing the availability of individual health insurance coverage to certain eligible individuals with prior group coverage have been superseded by the requirements of § 147.104 of this subchapter, which set forth Federal requirements for guaranteed availability of coverage in the group and individual markets.
The revision and addition read as follows:
(a)
(c) * * *
(3)
(d) * * *
(1) Provides notice in writing, in a form and manner specified by the Secretary, to each individual provided coverage of that type of health insurance at least 90 calendar days before the date the coverage will be discontinued.
(g)
(2) For purposes of paragraph (g) of this section, modifications made uniformly and solely pursuant to applicable Federal or State requirements are considered a uniform modification of coverage if:
(i) The modification is made within a reasonable time period after the imposition or modification of the Federal or State requirement; and
(ii) The modification is directly related to the imposition or modification of the Federal or State requirement.
(3) For purposes of paragraph (g) of this section, other types of modifications made uniformly are considered a uniform modification of coverage if the health insurance coverage for the product meets all of the following criteria:
(i) The product is offered by the same health insurance issuer (within the meaning of section 2791(b)(2) of the PHS Act);
(ii) The product is offered as the same product network type (for example, health maintenance organization, preferred provider organization, exclusive provider organization, point of service, or indemnity);
(iii) The product continues to cover at least a majority of the same service area;
(iv) Within the product, each plan has the same cost-sharing structure as before the modification, except for any variation in cost sharing solely related to changes in cost and utilization of medical care, or to maintain the same metal tier level described in sections 1302(d) and (e) of the Affordable Care Act; and
(v) The product provides the same covered benefits, except for any changes in benefits that cumulatively impact rate for any plan within the product within an allowable variation of +/− 2 percentage points (not including changes pursuant to applicable Federal or State requirements).
(4) A State may only broaden the standards in paragraphs (g)(3)(iii) and (iv) of this section.
(i)
(a)
(b)
The rules for guaranteeing the availability of individual health insurance coverage to certain eligible individuals with prior group coverage have been superseded by the requirements of § 147.104 of this subchapter, which set forth Federal requirements for guaranteed availability of coverage in the group and individual markets.
The rules for a State to implement an acceptable alternative mechanism for purposes of guaranteeing the availability of individual health insurance coverage to certain eligible individuals with prior group coverage have been superseded by the requirements of § 147.104 of this subchapter, which set forth Federal requirements for guaranteed availability of coverage in the group and individual markets.
The revisions and additions read as follows:
The requirements of this part and part 147 of this subchapter do not apply to any individual coverage in relation to its provision of the benefits described in paragraphs (a) and (b) of this section (or any combination of the benefits).
(b) * * *
(3) Coverage only for a specified disease or illness (for example, cancer policies) if the policies meet the requirements of § 146.145(b)(4)(ii)(B) and (C) of this subchapter regarding noncoordination of benefits.
(4) Hospital indemnity or other fixed indemnity insurance only if—
(i) The benefits are provided only to individuals who attest, in their fixed indemnity insurance application, that they have other health coverage that is minimum essential coverage within the meaning of section 5000A(f) of the Internal Revenue Code, or that they are treated as having minimum essential coverage due to their status as a bona fide resident of any possession of the United States pursuant to Code section 5000A(f)(4)(B).
(ii) There is no coordination between the provision of benefits and an exclusion of benefits under any other health coverage.
(iii) The benefits are paid in a fixed dollar amount per period of hospitalization or illness and/or per service (for example, $100/day or $50/visit) regardless of the amount of expenses incurred and without regard to the amount of benefits provided with respect to the event or service under any other health coverage.
(iv) A notice is displayed prominently in the application materials in at least 14 point type that has the following language: “THIS IS A SUPPLEMENT TO HEALTH INSURANCE AND IS NOT A SUBSTITUTE FOR MAJOR MEDICAL COVERAGE. LACK OF MAJOR MEDICAL COVERAGE (OR OTHER MINIMUM ESSENTIAL COVERAGE) MAY RESULT IN AN ADDITIONAL PAYMENT WITH YOUR TAXES.”
(v) The requirement of paragraph (b)(4)(iv) of this section applies to all hospital or other fixed indemnity insurance policy years beginning on or after January 1, 2015, and the requirement of paragraph (b)(4)(i) of this section applies to hospital or other fixed indemnity insurance policies issued on or after January 1, 2015, and to hospital or other fixed indemnity policies issued before that date, upon their first renewal occurring on or after October 1, 2016.
Secs. 1311, 1321, 1341–1343, Pub. L. 111–148, 24 Stat. 119.
(1) For benefit year 2014, for a QHP offered by a health insurance issuer with allowable costs of at least 80 percent of after-tax premium in a transitional State, the percentage specified by HHS for such QHPs in the transitional State; and otherwise zero percent.
(2) For benefit year 2015, for a QHP offered by a health insurance issuer in any State, two percent.
Section 2794 of the Public Health Service Act (42 U.S.C. 300gg–94).
Title I of the Affordable Care Act, sections 1301, 1302, 1303, 1304, 1311, 1312, 1313, 1321, 1322, 1331, 1332, 1334, 1402, 1411, 1412, 1413, Pub. L. 111–148, 124 Stat. 119 (42 U.S.C. 18021–18024, 18031–18033, 18041–18042, 18051, 18054, 18071, and 18081–18083).
(c)
(i) Comply with applicable non-discrimination statutes; and
(ii) Not discriminate based on race, color, national origin, disability, age, sex, gender identity or sexual orientation.
(2) Notwithstanding the provisions of paragraph (c)(1)(ii) of this section, an organization that receives Federal funds to provide services to a defined population under the terms of Federal legal authorities that participates in the certified application counselor program under § 155.225 may limit its provision of certified application counselor services to the same defined population, but must comply with paragraph (c)(1)(ii) of this section with respect to the provision of certified application counselor services to that defined population. If the organization limits its provision of certified application counselor services pursuant to this exception, but is approached for certified application counselor services by an individual who is not included in the defined population that the organization serves, the organization must refer the individual to other Exchange-approved resources that can provide assistance. If the organization does not limit its provision of certified application counselor services pursuant to this exception, the organization must comply with paragraph (c)(1)(ii) of this section.
(a)
(1) Civil money penalties (CMPs), subject to the provisions of this section.
(2) Corrective action plans. In the notice of assessment of CMPs specified in paragraph (l) of this section, HHS may provide an individual or entity specified in paragraph (b) of this section the opportunity to enter into a corrective action plan to correct the violation instead of paying the CMP, based on evaluation of the factors set forth in paragraph (h) of this section. In the event that the individual or entity does not follow such a corrective action plan, HHS could require payment of the CMP.
(b)
(1) Individual Navigators and Navigator entities in a Federally-facilitated Exchange, including grantees, sub-grantees, and all personnel carrying out Navigator duties on behalf of a grantee or sub-grantee;
(2) Non-Navigator assistance personnel authorized under § 155.205(d) and (e) and non-Navigator assistance personnel entities in a Federally-facilitated Exchange, including but not limited to individuals and entities under contract with HHS to facilitate consumer enrollment in QHPs in a Federally-facilitated Exchange; and
(3) Organizations that a Federally-facilitated Exchange has designated as certified application counselor organizations and individual certified application counselors carrying out certified application counselor duties in a Federally-facilitated Exchange.
(c)
(d)
(i) Complaints from the general public;
(ii) Reports from State regulatory agencies, and other Federal and State agencies; or
(iii) Any other information that indicates that a consumer assistance entity may have engaged or may be engaging in activity specified in paragraph (c) of this section.
(2)
(e)
(1) Description of the activity that is being investigated.
(2) Explanation that the consumer assistance entity has 30 days from the date of the notice to respond with additional information or documentation, including information or documentation to refute an alleged violation.
(3) State that a CMP might be assessed if the allegations are not, as determined by HHS, refuted within 30 days from the date of the notice.
(f)
(g)
(h)
(1) HHS must take into account the following:
(i) The consumer assistance entity's previous or ongoing record of compliance, including but not limited to compliance or noncompliance with any corrective action plan.
(ii) The gravity of the violation, which may be determined in part by—
(A) The frequency of the violation, taking into consideration whether any violation is an isolated occurrence, represents a pattern, or is widespread; and
(B) Whether the violation caused, or could reasonably be expected to cause, financial or other adverse impacts on consumer(s), and the magnitude of those impacts;
(2) HHS may take into account the following:
(i) The degree of culpability of the consumer assistance entity, including but not limited to—
(A) Whether the violation was beyond the direct control of the consumer assistance entity; and
(B) The extent to which the consumer assistance entity received compensation—legal or otherwise—for the services associated with the violation;
(ii) Aggravating or mitigating circumstances;
(iii) Whether other remedies or penalties have been assessed and/or imposed for the same conduct or occurrence; or
(iv) Other such factors as justice may require.
(i)
(j)
(k)
(i) Any violation for the period of time during which none of the consumer assistance entities knew, or exercising reasonable diligence would have known, of the violation; or
(ii) The period of time after any of the consumer assistance entities knew, or exercising reasonable diligence would have known, of the failure, if the violation was due to reasonable cause and not due to willful neglect and the violation was corrected within 30 days of the first day that any of the consumer assistance entities against whom the penalty would be imposed knew, or exercising reasonable diligence would have known, that the violation existed.
(2)
(3)
(l)
(1) A description of the basis for the determination;
(2) The basis for the CMP;
(3) The amount of the CMP, if applicable;
(4) The date the CMP, if applicable, is due;
(5) Whether HHS would permit the consumer assistance entity to enter into a corrective action plan in place of paying the CMP, and the terms of any such corrective action plan;
(6) An explanation of the consumer assistance entity's right to a hearing under paragraph (m) of this section; and
(7) Information about the process for filing a request for a hearing.
(m)
(n)
(2) HHS will notify the consumer assistance entity in writing of any CMP that has been assessed and of the means by which the consumer assistance entity may pay the CMP.
(3) The consumer assistance entity has no right to appeal a CMP with respect to which it has not requested a hearing in accordance with paragraph (m) of this section unless the consumer assistance entity can show good cause in accordance with § 150.405(b) of this subchapter for failing to timely exercise its right to a hearing.
The revision and additions read as follows:
(c) * * *
(1) * * *
(iii) Meet any licensing, certification or other standards prescribed by the State or Exchange, if applicable, so long as such standards do not prevent the application of the provisions of title I of the Affordable Care Act. Standards that would prevent the application of the provisions of title I of the Affordable Care Act include but are not limited to the following:
(A) Except as otherwise provided under § 155.705(d), requirements that Navigators refer consumers to other entities not required to provide fair, accurate, and impartial information.
(B) Except as otherwise provided under § 155.705(d), requirements that would prevent Navigators from providing services to all persons to whom they are required to provide assistance.
(C) Requirements that would prevent Navigators from providing advice regarding substantive benefits or comparative benefits of different health plans.
(D) Requiring that a Navigator hold an agent or broker license or imposing any requirement that, in effect, would require all Navigators in the Exchange to be licensed agents or brokers.
(E) Imposing standards that would, as applied or as implemented in a State, prevent the application of Federal requirements applicable to Navigator entities or individuals or applicable to the Exchange's implementation of the Navigator program.
(d) * * *
(4) Receive any consideration directly or indirectly from any health insurance issuer or issuer of stop loss insurance in connection with the enrollment of any individuals or employees in a QHP or a non-QHP. Notwithstanding the requirements of this paragraph (d)(4), in a Federally-facilitated Exchange, no health care provider shall be ineligible to operate as a Navigator solely because it receives consideration from a health insurance issuer for health care services provided;
(5) Charge any applicant or enrollee, or request or receive any form of remuneration from or on behalf of an individual applicant or enrollee, for application or other assistance related to Navigator duties;
(6) Provide gifts, including gift cards or cash, unless they are of nominal value, or provide promotional items that market or promote the products or services of a third party, to any applicant or potential enrollee as an inducement for enrollment. Gifts, gift cards, or cash may exceed nominal value for the purpose of providing reimbursement for legitimate expenses incurred by a consumer in effort to receive Exchange application assistance, such as, but not limited to, travel or postage expenses;
(7) Use Exchange funds to purchase gifts or gift cards, or promotional items that market or promote the products or services of a third party, that would be provided to any applicant or potential enrollee;
(8) Solicit any consumer for application or enrollment assistance by going door-to-door or through other unsolicited means of direct contact, including calling a consumer to provide application or enrollment assistance without the consumer initiating the contact, unless the individual has a pre-existing relationship with the individual Navigator or Navigator entity and other applicable State and Federal laws are otherwise complied with. Outreach and education activities may be conducted by going door-to-door or through other unsolicited means of direct contact, including calling a consumer or
(9) Initiate any telephone call to a consumer using an automatic telephone dialing system or an artificial or prerecorded voice, except in cases where the individual Navigator or Navigator entity has a relationship with the consumer and so long as other applicable State and Federal laws are otherwise complied with.
(e) * * *
(2) Provide information and services in a fair, accurate, and impartial manner, which includes providing information that assists consumers with submitting the eligibility application; clarifying the distinctions among health coverage options, including QHPs; and helping consumers make informed decisions during the health coverage selection process. Such information must acknowledge other health programs;
(6) Ensure that applicants—
(i) Are informed of the functions and responsibilities of Navigators;
(ii) Provide authorization in a form and manner as determined by the Exchange prior to a Navigator's obtaining access to an applicant's personally identifiable information, and that the Navigator maintains a record of the authorization provided in a form and manner as determined by the Exchange. The Exchange must establish a reasonable retention period for maintaining these records. In Federally-facilitated Exchanges, this period is no less than six years, unless a different and longer retention period has already been provided under other applicable Federal law; and
(iii) May revoke at any time the authorization provided the Navigator pursuant to paragraph (e)(6)(ii) of this section.
(7) Maintain a physical presence in the Exchange service area, so that face-to-face assistance can be provided to applicants and enrollees. In a Federally-facilitated Exchange, no individual or entity shall be ineligible to operate as a Navigator solely because its principal place of business is outside of the Exchange service area.
(f)
(1) Requirements that non-Navigator entities or individuals refer consumers to other entities not required to provide fair, accurate, and impartial information.
(2) Requirements that would prevent non-Navigator entities or individuals from providing services to all persons to
(3) Requirements that would prevent non-Navigator entities or individuals from providing advice regarding substantive benefits or comparative benefits of different health plans.
(4) Imposing standards that would, as applied or as implemented in a State, prevent the application of Federal requirements applicable to non-Navigator entities or individuals or applicable to the Exchange's implementation of the non-Navigator assistance personnel program.
(g)
(1) Are informed of the functions and responsibilities of non-Navigator assistance personnel;
(2) Provide authorization in a form and manner as determined by the Exchange prior to a non-Navigator assistance personnel's obtaining access to an applicant's personally identifiable information, and that the non-Navigator assistance personnel maintains a record of the authorization provided in a form and manner as determined by the Exchange. The Exchange must establish a reasonable retention period for maintaining these records. In Federally-facilitated Exchanges, this period is no less than six years, unless a different and longer retention period has already been provided under other applicable Federal law; and
(3) May revoke at any time the authorization provided the non-Navigator assistance personnel pursuant to paragraph (g)(2) of this section.
(h) All non-Navigator entities carrying out consumer assistance functions under § 155.205(d) and (e) in an Exchange operated by HHS during the exercise of its authority under § 155.105(f) and all non-Navigator assistance personnel funded through an Exchange Establishment Grant under section 1311(a) of the Affordable Care Act must maintain a physical presence in the Exchange service area, so that face-to-face assistance can be provided to applicants and enrollees. In a Federally-facilitated Exchange, no individual or entity shall be ineligible to operate as a non-Navigator entity or as non-Navigator assistance personnel solely because its principal place of business is outside of the Exchange service area.
(i)
The revisions and additions read as follows:
(b) * * *
(3) In a Federally-facilitated Exchange, no individual or entity shall be ineligible to operate as a certified application counselor or organization designated by the Exchange under paragraph (b) of this section solely because its principal place of business is outside of the Exchange service area.
(c) * * *
(1) Provide information to individuals and employees about the full range of QHP options and insurance affordability programs for which they are eligible, which includes providing fair, impartial, and accurate information that assists consumers with submitting the eligibility application; clarifying the distinctions among health coverage options, including QHPs; and helping consumers make informed decisions during the health coverage selection process;
(d) * * *
(7) Is recertified on at least an annual basis after successfully completing recertification training as required by the Exchange; and
(8) Meets any licensing, certification, or other standards prescribed by the State or Exchange, if applicable, so long as such standards do not prevent the application of the provisions of title I of the Affordable Care Act. Standards that would prevent the application of the provisions of title I of the Affordable Care Act include but are not limited to the following:
(i) Requirements that certified application counselors refer consumers to other entities not required to provide fair, accurate, and impartial information.
(ii) Requirements that would prevent certified application counselors from providing services to all persons to whom they are required to provide assistance.
(iii) Requirements that would prevent certified application counselors from providing advice regarding substantive benefits or comparative benefits of different health plans.
(iv) Imposing standards that would, as applied or as implemented in a State, prevent the application of Federal requirements applicable to certified application counselors, to an organization designated by the Exchange under paragraph (b) of this section, or to the Exchange's implementation of the certified application program.
(f) * * *
(1) Are informed of the functions and responsibilities of certified application counselors;
(2) Provide authorization in a form and manner as determined by the Exchange prior to a certified application counselor obtaining access to an applicant's personally identifiable information, and that the organization or certified application counselor maintains a record of the authorization in a form and manner as determined by the Exchange. The Exchange must establish a reasonable retention period for maintaining these records. In Federally-facilitated Exchanges, this period is no less than six years, unless a different and longer retention period has already been provided under other applicable Federal law; and
(g)
(1) Impose any charge on applicants or enrollees for application or other assistance related to the Exchange;
(2) Receive any consideration directly or indirectly from any health insurance issuer or issuer of stop-loss insurance in connection with the enrollment of any individuals in a QHP or a non-QHP. In a Federally-facilitated Exchange, no health care provider shall be ineligible
(3) Beginning November 15, 2014, if operating in a Federally-facilitated Exchange, provide compensation to individual certified application counselors on a per-application, per-individual-assisted, or per-enrollment basis;
(4) Provide gifts, including gift cards or cash, unless they are of nominal value, or provide promotional items that market or promote the products or services of a third party, to any applicant or potential enrollee as an inducement for enrollment. Gifts, gift cards, or cash may exceed nominal value for the purpose of providing reimbursement for legitimate expenses incurred by a consumer in effort to receive Exchange application assistance, such as, but not limited to, travel or postage expenses.
(5) Solicit any consumer for application or enrollment assistance by going door-to-door or through other unsolicited means of direct contact, including calling a consumer to provide application or enrollment assistance without the consumer initiating the contact, unless the individual has a pre-existing relationship with the individual certified application counselor or designated organization and other applicable State and Federal laws are otherwise complied with. Outreach and education activities may be conducted by going door-to-door or through other unsolicited means of direct contact, including calling a consumer; or
(6) Initiate any telephone call to a consumer using an automatic telephone dialing system or an artificial or prerecorded voice, except in cases where the individual certified application counselor or designated organization has a relationship with the consumer and so long as other applicable State and Federal laws are otherwise complied with.
(e)
(1) For a Federally-facilitated Exchange, the premium for coverage lasting less than one month must equal the product of—
(i) The premium for one month of coverage divided by the number of days in the month; and
(ii) The number of days for which coverage is being provided in the month described in paragraph (e)(1)(i) of this section.
(2) [Reserved]
(g)
(a)
(i) Failure to provide correct information under section 1411(b) of the Affordable Care Act where such failure is attributable to negligence or disregard of any rules or regulations of the Secretary with negligence and disregard defined as they are in section 6662 of the Internal Revenue Code of 1986:
(A) “Negligence” includes any failure to make a reasonable attempt to provide accurate, complete, and comprehensive information; and
(B) “Disregard” includes any careless, reckless, or intentional disregard for any rules or regulations of the Secretary.
(ii) Knowing and willful provision of false or fraudulent information required under section 1411(b) of the Affordable Care Act, where knowing and willful means the intentional provision of information that the person knows to be false or fraudulent; or
(iii) Knowing and willful use or disclosure of information in violation of section 1411(g) of the Affordable Care Act, where knowing and willful means the intentional use or disclosure of information in violation of section 1411(g). Such violations would include, but not be limited to, the following:
(A) Any use or disclosure performed which violates relevant privacy and security standards established by the Exchange pursuant to § 155.260;
(B) Any other use or disclosure which has not been determined by the Secretary to be in compliance with section 1411(g)(2)(A) of the Affordable Care Act pursuant to § 155.260(a); and
(C) Any other use or disclosure which is not necessary to carry out a function described in a contract with a non-Exchange entity executed pursuant to § 155.260(b)(2).
(2) For purposes of this section, the term “person” is defined to include, but is not limited to, all individuals; corporations; Exchanges; Medicaid and CHIP agencies; other entities gaining access to personally identifiable information submitted to an Exchange to carry out additional functions which the Secretary has determined ensure the efficient operation of the Exchange pursuant to § 155.260(a)(1); and non-Exchange entities as defined in § 155.260(b) which includes agents, brokers, Web-brokers, QHP issuers, Navigators, non-Navigator assistance personnel, certified application counselors, in-person assistors, and other third party contractors.
(b)
(1) The nature and circumstances of the conduct including, but not limited to:
(i) The number of violations;
(ii) The severity of the violations;
(iii) The person's history with the Exchange including any prior violations that would indicate whether the violation is an isolated occurrence or represents a pattern of behavior;
(iv) The length of time of the violation;
(v) The number of individuals affected or potentially affected;
(vi) The extent to which the person received compensation or other consideration associated with the violation;
(vii) Any documentation provided in any complaint or other information, as well as any additional information provided by the individual to refute performing the violation; and
(viii) Whether other remedies or penalties have been imposed for the same conduct or occurrence.
(2) The nature of the harm resulting from, or reasonably expected to result
(i) Whether the violation resulted in actual or potential financial harm;
(ii) Whether there was actual or potential harm to an individual's reputation;
(iii) Whether the violation hindered or could have hindered an individual's ability to obtain health insurance coverage;
(v) The actual or potential impact of the provision of false or fraudulent information or of the improper use or disclosure of the information; and
(vi) Whether any person received a more favorable eligibility determination for enrollment in a QHP or insurance affordability program, such as greater advance payment of the premium tax credits or cost-sharing reductions than he or she would be eligible for if the correct information had been provided.
(3) No penalty will be imposed under paragraph (a)(1)(i) of this section if HHS determines that there was a reasonable cause for the failure to provide correct information required under section 1411(b) of the Affordable Care Act and that the person acted in good faith.
(c)
(1) The following provisions provide maximum penalties for a single “plan year,” where “plan year” has the same meaning as at § 155.20:
(i) Any person who fails to provide correct information as specified in paragraph (a)(1)(i) of this section may be subject to a maximum civil money penalty of $25,000 for each application, as defined at paragraph (c)(1)(iii) of this section, pursuant to which a person fails to provide correct information.
(ii) Any person who knowingly and willfully provides false information as specified in paragraph (a)(1)(ii) of this section may be subject to a maximum civil money penalty of $250,000 for each application, as defined at paragraph (c)(1)(iii) of this section, on which a person knowingly and willfully provides false information.
(iii) For the purposes of this subsection, “application” is defined as a submission of information, whether through an online portal, over the telephone through a call center, or through a paper submission process, in which the information is provided in relation to an eligibility determination; an eligibility redetermination based on a change in an individual's circumstances; or an annual eligibility redetermination for any of the following:
(A) Enrollment in a qualified health plan;
(B) Premium tax credits or cost sharing reductions; or
(C) An exemption from the individual shared responsibility payment.
(2) Any person who knowingly or willfully uses or discloses information as specified in paragraph (a)(1)(iii) of this section may be subject to the following civil money penalty:
(i) A civil money penalty for each use or disclosure described in paragraph (a)(1)(iii) of this section of not more than $25,000 per use or disclosure.
(ii) For purposes of paragraph (c) of this section, a use or disclosure includes one separate use or disclosure of a single individual's personally identifiable information where the person against whom a civil money penalty may be imposed has made the use or disclosure.
(3) These penalties may be imposed in addition to any other penalties that may be prescribed by law.
(d)
(1) This written notice will be either hand delivered, sent by certified mail, return receipt requested, or sent by overnight delivery service with signature upon delivery required. The written notice must include the following elements:
(i) A description of the findings of fact regarding the violations with respect to which the civil money penalty is proposed;
(ii) The basis and reasons why the findings of fact subject the person to a penalty;
(iii) Any circumstances described in paragraph (b) of this section that were considered in determining the amount of the proposed penalty;
(iv) The amount of the proposed penalty;
(v) An explanation of the person's right to a hearing under any applicable administrative hearing process;
(vi) A statement that failure to request a hearing within 60 calendar days after the date of issuance printed on the notice permits the assessment of the proposed penalty; and
(vii) Information explaining how to file a request for a hearing and the address to which the hearing request must be sent.
(2) The person may request a hearing before an ALJ on the proposed penalty by filing a request in accordance with the procedure to file an appeal specified in paragraph (f) of this section.
(e)
(1) HHS will notify the person in writing of any penalty that has been imposed, the means by which the person may satisfy the penalty, and the date on which the penalty is due.
(2) A person has no right to appeal a penalty with respect to which the person has not timely requested a hearing in accordance with paragraph (d) of this section.
(f)
(g)
(2)
(h)
(i)
(d) * * *
(2) * * *
(ii) Comply with the standards specified in paragraph (e)(2) of this section.
(e)
(f)
(d)
(b) * * *
(2) * * *
(i) In the case of birth, adoption, placement for adoption, or placement in foster care as described in paragraph (d)(2) of this section, the Exchange must ensure that coverage is effective for a qualified individual or enrollee on the date of birth, adoption, placement for adoption, or placement in foster care, or it may permit the qualified individual or enrollee to elect a coverage effective date of the first day of the month following the date of birth, adoption, placement for adoption, or placement in foster care. If the Exchange permits the qualified individual or enrollee to elect a coverage effective date of the first day of the month following the date of birth, adoption, placement for adoption, or placement in foster care, the Exchange must ensure coverage is effective on such date elected by the qualified individual or enrollee.
(ii) In the case of marriage as described in paragraph (d)(2) of this section the Exchange must ensure that coverage is effective for a qualified individual or enrollee on the first day of the month following plan selection.
(iii) In the case of a qualified individual or enrollee eligible for a special enrollment period as described in paragraphs (d)(4), (d)(5), (d)(9), or (d)(10) of this section, the Exchange must ensure that coverage is effective on an appropriate date based on the circumstances of the special enrollment period.
(iv) In a case where a consumer loses coverage as described in paragraph (d)(1) or (d)(6)(iii) of this section, if the plan selection is made before or on the day of the loss of coverage, the Exchange must ensure that the coverage effective date is on the first day of the month following the loss of coverage. If the plan selection is made after the loss of coverage, the Exchange must ensure that coverage is effective in accordance with paragraph (b)(1) of this section or on the first day of the month following plan selection in accordance with paragraph (b)(2) of this section, at the option of the Exchange;
(c)
(2)
(ii) A qualified individual or his or her dependent who is described in paragraph (d)(6)(iii) of this section has 60 days before and after the loss of eligibility for qualifying coverage in an eligible employer-sponsored plan to select a QHP.
(3)
(d) * * *
(1) The qualified individual or his or her dependent either:
(i) Loses minimum essential coverage. The date of the loss of coverage is the last day the consumer would have coverage under his or her previous plan or coverage.
(ii) Is enrolled in any non-calendar year health insurance policy that will expire in 2014 as described in § 147.104(b)(2) of this subchapter, even if the qualified individual or his or her dependent has the option to renew the expiring non-calendar year individual health insurance policy. The date of the loss of coverage is the date in 2014 of the expiration of the non-calendar year policy;
(iii) Loses pregnancy-related coverage described under section 1902(a)(10)(A)(i)(IV) and (a)(10)(A)(ii)(IX) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(i)(IV), (a)(10)(A)(ii)(IX)). The date of the loss of coverage is the last day the consumer would have pregnancy-related coverage; or
(iv) Loses medically needy coverage as described under section 1902(a)(10)(C) of the Social Security Act only once per calendar year. The date of the loss of coverage is the last day the consumer would have medically needy coverage.
(6) * * *
(iii) A qualified individual or his or her dependent who is enrolled in an eligible employer-sponsored plan is determined newly eligible for advance payments of the premium tax credit based in part on a finding that such individual is ineligible for qualifying coverage in an eligible-employer sponsored plan in accordance with 26 CFR 1.36B–2(c)(3), including as a result of his or her employer discontinuing or changing available coverage within the next 60 days, provided that such individual is allowed to terminate existing coverage.
(e)
(d) * * *
(6) In the case of a termination in accordance with paragraph (b)(2)(v) of this section, the last day of coverage in an enrollee's prior QHP is the day before the effective date of coverage in his or her new QHP, including any retroactive enrollments effectuated under § 155.420(b)(2)(iii). In cases of retroactive terminations dates, the Exchange will ensure that appropriate actions are taken to make necessary adjustments to advance payments of the premium tax credit, cost-sharing reductions, premiums, and claims.
(e)
(1)
(2)
(3)
(a) * * *
(1) Withdraws the appeal request in writing or by telephone, if the appeals entity is capable of accepting telephonic withdrawals.
(i) Accepting telephonic withdrawals means the appeals entity—
(A) Records in full the appellant's statement and telephonic signature made under penalty of perjury; and
(B) Provides a written confirmation to the appellant documenting the telephonic interaction.
(ii) [Reserved]
The revision reads as follows:
(d) * * *
(2) Upon receipt of an invalid appeal request, the appeals entity must promptly and without undue delay send written notice to the employer that the appeal request is not valid because it fails to meet the requirements of this section. The written notice must inform the employer—
(a) * * *
(g) * * *
(5)
(a)
(1) Directly or through contracting arrangements in accordance with § 155.110(a); or
(2) For an application submitted before the start of open enrollment for 2016, through the approach described in paragraph (b) of this section.
(b)
(1) The Exchange adheres to the eligibility determination made by HHS;
(2) The Exchange furnishes to HHS any information available through the Exchange that is necessary for an applicant to utilize the process administered by HHS; and
(3) The Exchange call center and Internet Web site specified in § 155.205(a) and (b), respectively, provide information to consumers regarding the exemption eligibility process.
The revisions and addition read as follows:
(b) * * *
(2)
(3) * * *
(ii) Unless the SHOP makes an election pursuant to paragraph (b)(3)(vi) of this section, for plan years beginning on or after January 1, 2015, a SHOP:
(iv) Unless the Secretary makes an election pursuant to paragraph (b)(3)(vi) of this section, for plan years beginning on or after January 1, 2015, a Federally-facilitated SHOP will provide a qualified employer a choice of two methods to make QHPs available to qualified employees:
(vi) For plan years beginning in 2015 only, the SHOP may, elect to provide employers only with the option set forth at paragraph (b)(3)(ii)(B) of this section, or in the case of a Federally-facilitated SHOP, only with the option set forth at paragraph (b)(3)(iv)(B) of this section, only if the State Insurance Commissioner submits a written recommendation to the SHOP adequately explaining that it is the State Insurance Commissioner's expert judgment, based on a documented assessment of the full landscape of the small group market in his or her State, that not implementing employee choice would be in the best interests of small employers and their employees and dependents, given the likelihood that implementing employee choice would cause issuers to price products and plans higher in 2015 due to the issuers' beliefs about adverse selection. A State Insurance Commissioner's recommendation must be based on concrete evidence, including but not limited to discussions with those issuers expected to participate in the SHOP in 2015.
(vii) For plan years beginning in 2015 only, a State Insurance Commissioner should submit the recommendation specified in paragraph (b)(3)(vi) of this section, and the SHOP should make a decision based on that recommendation sufficiently in advance of the end of the QHP certification application window such that issuers can make informed decisions about whether to participate in the SHOP. In a Federally-facilitated-SHOP, State Insurance Commissioners must submit to HHS the recommendation specified in paragraph (b)(3)(vi) of this section on or before June 2, 2014, and HHS will make a decision based on any recommendations submitted by that deadline before the close of the QHP certification application window.
(c)
(2) The SHOP must provide qualified employers with a standard election period prior to the completion of the employer's plan year and before the annual employee open enrollment period, in which the qualified employer may change its participation in the SHOP for the next plan year, including—
(i) The method by which the qualified employer makes QHPs available to qualified employees pursuant to § 155.705(b)(2) and (3);
(ii) The employer contribution towards the premium cost of coverage;
(iii) The level of coverage offered to qualified employees as described in § 155.705(b)(2) and (3); and
(iv) The QHP or QHPs offered to qualified employees in accordance with § 155.705.
(e)
The revision read as follows:
(i) * * *
(1) * * *
(i) Withdraws the request in accordance with the standards set forth in § 155.530(a)(1); or
The Exchange must prominently display the quality rating information assigned to each QHP on its Web site, in accordance with § 155.205(b)(1)(v), as calculated by HHS and in a form and manner specified by HHS.
The Exchange must prominently display results from the Enrollee Satisfaction Survey for each QHP on its Web site, in accordance with § 155.205(b)(1)(iv), as calculated by HHS and in a form and manner specified by HHS.
Title I of the Affordable Care Act, sections 1301–1304, 1311–1313, 1321–1322, 1324, 1334, 1342–1343, 1401–1402, Pub. L. 111–148, 124 Stat. 119 (42 U.S.C. 18021–18024, 18031–18032, 18041–18042, 18044, 18054, 18061, 18063, 18071, 18082, 26 U.S.C. 36B, and 31 U.S.C. 9701).
(c) A health plan providing essential health benefits must have procedures in place that allow an enrollee to request and gain access to clinically appropriate drugs not covered by the health plan.
(1) Such procedures must include a process for an enrollee, the enrollee's designee, or the enrollee's prescribing physician (or other prescriber) to request an expedited review based on exigent circumstances.
(i) Exigent circumstances exist when an enrollee is suffering from a health condition that may seriously jeopardize the enrollee's life, health, or ability to regain maximum function or when an enrollee is undergoing a current course of treatment using a non-formulary drug.
(ii) A health plan must make its coverage determination on an expedited review request based on exigent circumstances and notify the enrollee or the enrollee's designee and the prescribing physician (or other prescriber, as appropriate) of its coverage determination no later than 24 hours after it receives the request.
(iii) A health plan that grants an exception based on exigent circumstances must provide coverage of the non-formulary drug for the duration of the exigency.
(2) [Reserved]
(c)
(d)
51. Section 156.200 is amended by revising paragraph (b)(5) and adding paragraph (h) to read as follows:
(b) * * *
(5) Implement and report on a quality improvement strategy or strategies described in section 1311(c)(1)(E) of the Affordable Care Act consistent with the standards of section 1311(g) of the Affordable Care Act, disclose and report information on health care quality and outcomes described in sections 1311(c)(1)(H), (c)(1)(I), and (c)(3) of the Affordable Care Act, and implement appropriate enrollee satisfaction surveys consistent with section 1311(c)(4) of the Affordable Care Act;
(h)
(d)
(j)
(a) * * *
(2)
(d)
(d)
The revisions and additions read as follows:
(d) * * *
(3) HHS will deliver notice under this paragraph by either hand delivery, certified mail, return receipt requested, or by overnight delivery service with signature upon delivery required.
(e) * * *
(2) HHS will notify the issuer in writing of any penalty that has been assessed under this subpart and of the means by which the QHP issuer or another responsible entity may satisfy the CMP assessment.
If HHS learns of a potential violation described in § 156.805 or if a State informs HHS of a potential violation, prior to imposing any CMPs, HHS must provide a written notice to the issuer, to include the following:
(a) Describe the potential violation.
(b) Provide 30 days from the date of the notice for the QHP issuer to respond and to provide additional information to refute an alleged violation.
(c) State that a civil money penalty may be assessed if the allegations are not, as determined by HHS, refuted.
The revisions and additions read as follows:
(a) * * *
(6) The QHP no longer meets the applicable standards set forth under subpart C of this part.
(12) The QHP issuer substantially fails to meet the requirements related to the cases forwarded to QHP issuers under subpart K of this part; or
(13) The QHP issuer substantially fails to meet the requirements related to the offering of a QHP under subpart M of this part.
(d)
(d)
(e)
(a)
(2) In order to ensure the integrity of the data required to calculate the QRS, a QHP issuer must submit data that has been validated in a form and manner specified by HHS.
(3) A QHP issuer must include in its data submission information only for those QHP enrollees at the level specified by HHS.
(b)
(c)
(d)
(a)
(b)
(2) In order to ensure the integrity of the data required to conduct the survey, a QHP issuer must submit data that has been validated in a form and manner specified by HHS, and submit this data to its contracted ESS vendor.
(3) A QHP issuer must include in its data submission information only for those QHP enrollees at the level specified by HHS.
(c)
(d)
(e)
Section 2718 of the Public Health Service Act (42 U.S.C. 300gg–18), as amended.
(b) * * *
(2) * * *
(i) * * *
(A) * * *
(
(a)
(a)
(b) * * *
(6) The numerator of the MLR in the individual and small group markets in States that adopted the transitional policy outlined in the CMS letter dated November 14, 2013 must be the amount specified in paragraph (b) of this section, except that issuers that provided transitional coverage may
(7) The numerator of the MLR in the individual and small group markets for issuers participating in the State and Federal Exchanges (sometimes referred to as “Marketplaces”) must be the amount specified in paragraph (b) of this section, except that the total incurred claims and expenditures for activities that improve health care quality incurred in 2014 in the respective State and market may be multiplied by a factor of 1.0004.
(a) The life-years used to determine the credibility of an issuer's experience are the life-years for the MLR reporting year plus the life-years for the two prior MLR reporting years. If a State requires the small group market and individual market to be merged, then life-years used to determine credibility must be the life-years from the small group market and the individual market for the MLR reporting year plus the life-years from the small group market and the individual market for the two prior MLR reporting years.
U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.
Final rule.
This document adopts as a final rule, with some changes, interim amendments to the U.S. Customs and Border Protection (CBP) regulations which were published in the
The regulatory amendments adopted as a final rule in this document reflect and clarify the statutory standards for preferential tariff treatment under the AGOA, as amended by section 3108 of the Trade Act of 2002 and include other amendments necessitated by passage of the AGOA Acceleration Act of 2004 and the Africa Investment Incentive Act of 2006. This final rule includes specific documentary, procedural and other related requirements that must be met in order to obtain preferential treatment. This document also adopts as a final rule interim amendments to the CBP regulations implementing the GSP which were included in T.D. 00–67 to conform those regulations to previous amendments to the GSP statute. Moreover, this document adopts as a final rule other changes to the AGOA implementing regulations made by T.D. 03–15 to clarify several issues that arose after their original publication.
Effective June 26, 2014.
On May 18, 2000, the President signed into law the Trade and Development Act of 2000, Public Law 106–200, 114 Stat. 251. Title I of the Trade and Development Act of 2000 (Act of 2000) is referred to as the African Growth and Opportunity Act (AGOA) and authorizes the President to extend certain trade benefits to designated countries in sub-Saharan Africa.
Subtitle A of Title I of the Trade and Development Act of 2000 concerns trade policy for sub-Saharan Africa. Subtitle A is codified at 19 U.S.C. 3701–3706 and includes section 104 (19 U.S.C. 3703) which (1) authorizes the President to designate a sub-Saharan African country as an “eligible” sub-Saharan African country if the President determines that the country meets specified eligibility requirements and (2) requires that the President terminate a designation if the President determines that an eligible country is not making continual progress in meeting those requirements. Subtitle A also includes section 107 (19 U.S.C. 3706) which, for purposes of Title I, defines the terms “sub-Saharan Africa” and “sub-Saharan African country” and variations of those terms with reference to 48 listed countries.
Subtitle B of Title I of the Trade and Development Act of 2000 concerns trade benefits under the AGOA. The provisions within Subtitle B to which this document relates are sections 111, 112 and 113. These sections will be discussed in detail below.
On October 2, 2000, the President signed Proclamation 7350 to implement the provisions of the AGOA. The Proclamation, which was published in the
On October 5, 2000, U.S. Customs and Border Protection (CBP) published in the
On August 6, 2002, the President signed into law the Trade Act of 2002 (Act of 2002), Public Law 107–210, 116 Stat. 933. Sections 3108(a) and (b) of the Act of 2002 amended section 112(b) of the AGOA (codified at 19 U.S.C. 3721(b)) which specifies the textile and apparel articles to which preferential treatment applies under the AGOA. The majority of the provisions of section 112 of the AGOA are reflected for tariff purposes in Subchapter XIX, Chapter 98, HTSUS.
On November 13, 2002, the President signed Proclamation 7626 (published in the
On March 21, 2003, CBP published in the
On July 13, 2004, the President signed into law the AGOA Acceleration Act of 2004 (Act of 2004), Public Law 108–274, 118 Stat. 820. Section 7(a)(1) of the Act of 2004 amended Title V of the Trade Act of 1974 (the Generalized System of Preferences, or GSP, statute) at section 506B (codified at 19 U.S.C. 2466b) by extending GSP duty-free treatment through September 30, 2015, in the case of a beneficiary sub-Saharan African country as defined in section 506A(c) of the GSP statute (codified at 19 U.S.C. 2466a(c)).
Section 7(a)(2)(A) of the Act of 2004 amended section 506A(b)(2)(B) of the GSP statute (codified at 19 U.S.C. 2466a(b)(2)(B)) by providing for the inclusion of the cost or value of materials produced in one or more “former beneficiary sub-Saharan African countries” in determining whether the GSP 35% value-content rule has been satisfied in regard to an article described in section 506A(b)(1) (non-textiles). Section 7(a)(2)(B) of the Act of 2004 amended section 506A(c) to include a definition of “former beneficiary sub-Saharan African country.”
Sections 7(b), (c) and (d) of the Act of 2004 amended section 112(b) of the AGOA (codified at 19 U.S.C. 3721(b)) which specifies the textile and apparel articles to which preferential treatment applies under the AGOA. These amendments to section 112(b) were as follows:
1. The article description in the introductory text of paragraph (b)(1) was amended by inserting the words “or both” immediately before the parenthetical matter. The effect of this change is to clarify that the apparel articles described in this paragraph may be made both from fabrics wholly formed and cut in the United States and from components knit-to-shape in the United States.
2. The portion of the article description in the introductory text of paragraph (b)(3) relating to the origin of the yarns from which the article is made was amended by replacing the words “either in the United States or one or more beneficiary sub-Saharan African countries” each place they appear with the words “in the United States or one or more beneficiary sub-Saharan African countries or former beneficiary sub-Saharan African countries, or both.” The introductory text of paragraph (b)(3) was further amended by inserting the words “whether or not the apparel articles are also made from any of the fabrics, fabric components formed, or components knit-to-shape described in paragraph (1) or (2) (unless the apparel articles are made exclusively from any of the fabrics, fabric components formed, or components knit-to-shape described in paragraph (1) or (2))” immediately before the words “subject to the following.” The effect of the latter amendment is to extend preferential treatment under this paragraph to include apparel articles made in part from fabrics, fabrics components or knit-to-shape components that meet the production requirements set forth in paragraph (b)(1) or (b)(2).
3. Paragraph (b)(3)(A)(i) was amended by replacing the words “in the 1-year period beginning on October 1, 2000, and in each of the seven succeeding 1-year periods” with the words “in the 1-year period beginning October 1, 2003, and in each of the 11 succeeding 1-year periods.” Paragraph (b)(3)(A)(ii) was amended by increasing the “applicable percentage” used for determining the quantitative limits that apply to apparel articles under this paragraph. Neither of these changes affects the AGOA implementing regulations.
4. The article description in paragraph (b)(3)(B) [now paragraph (c)(1)] , which sets forth a special rule for lesser developed beneficiary sub-Saharan African countries, was amended by extending the applicability of the rule through September 30, 2007, and by establishing a separate “applicable percentage” for use in determining the quantitative limits that apply to apparel articles subject to this special rule. The articles described in paragraph (b)(3)(B) [now paragraph (c)(1)] previously were subject to the “applicable percentage” set forth in paragraph (b)(3)(A)(ii). Neither of these changes affects the AGOA implementing regulations.
5. The article description in paragraph (b)(5)(A) was amended by removing the words “from fabric or yarn that is not formed in the United States or a beneficiary sub-Saharan African country.” As a result of this change, apparel articles of fabric or yarn that was formed in the United States or a beneficiary sub-Saharan African country will not be precluded from receiving preferential treatment under this paragraph, assuming all applicable production requirements are met.
6. The article description in paragraph (b)(6) was amended by adding a reference to “ethnic printed fabric” and by including a description of the “ethnic printed fabrics” that qualify for preferential treatment under this paragraph.
7. The article description in paragraph (b)(7) was amended by adding a reference to “or former beneficiary sub-Saharan African countries” after the words “and one or more beneficiary sub-Saharan African countries” each place they appear. This change would permit the cutting and knitting-to-shape of fabric components to be performed in former beneficiary sub-Saharan African countries (if any).
Section 7(e)(1) of the Act of 2004 amended section 112(d) of the AGOA (codified at 19 U.S.C. 3721(d)), which sets forth certain special rules regarding the preferential treatment of eligible textile and apparel articles, by adding a new paragraph (d)(3) entitled “Certain components.” This new rule provides that an article otherwise eligible for preferential treatment under section 112 will not be ineligible for such treatment because the article contains certain specified components that do not meet the requirements set forth in the applicable paragraph under section 112(b), regardless of the country of origin of the component.
Section 7(e)(2) of the Act of 2004 amended the
Finally, section 7(f) of the Act of 2004 amended section 112(e) of the AGOA (codified at 19 U.S.C. 3721(e)), by adding a definition of “Former sub-Saharan African country” in new paragraph (e)(4).
On September 7, 2004, the President signed Proclamation 7808 (published in the
As described above, the Act of 2004 made various technical amendments to the GSP statute as well as the AGOA which require amendments to the GSP and AGOA implementing regulations. Because these regulatory changes are not interpretative in nature but closely reflect the language of the statute, they are included in this final rule without need for comment.
On December 20, 2006, the President signed into law the Tax Relief and Health Care Act of 2006 (Act of 2006), Public Law 109–432, 120 Stat. 2922. Title VI of the Act of 2006 is referred to as the “Africa Investment Incentive Act of 2006”. Section 6002 of the Act of 2006 amended section 112 of the AGOA (19 U.S.C. 3721) by transferring the existing special rule for lesser developed beneficiary sub-Saharan African countries from paragraph (b)(3)(B) of section 112 to new paragraph (c) of section 112, by extending the applicability of the rule through September 30, 2012, and by revising the “applicable percentage” for use in determining the quantitative limits that apply to apparel articles subject to this special rule. None of these changes affects the AGOA implementing regulations.
Section 6002 of the Act of 2006 further amended section 112 of the AGOA by adding a new paragraph (b)(8) to create a new category of textile and textile articles to which preferential treatment applies under the AGOA. This new paragraph encompasses textile and textile articles classifiable under Chapters 50 through 60 or Chapter 63 of the HTSUS that are products of a lesser developed beneficiary sub-Saharan African country and are wholly formed in one or more such countries from fibers, yarns, fabrics, fabric components, or components knit-to-shape that are the product of one or more of such countries. The changes to the AGOA implementing regulations necessitated by this statutory change are not interpretative in nature but closely reflect the language of the statute. Therefore, these regulatory changes are included in this final rule without need for comment.
On March 19, 2007, the President signed Proclamation 8114 (published in the
Sections 111, 112 and 113 of Subtitle B of Title I of the Trade and Development Act of 2000, including amendments to the AGOA trade benefit provisions made by section 3108(a) of the Trade Act of 2002 and section 7 of the AGOA Acceleration Act of 2004, provide as follows:
Subsection (a) of section 111 of the Act of 2000 amended Title V of the Trade Act of 1974 (the GSP statute which previously consisted of sections 501–507, codified at 19 U.S.C. 2461–2467) by inserting after section 506 a new section 506A entitled “Designation of sub-Saharan African countries for certain benefits” and codified at 19 U.S.C. 2466a.
Subsection (a) of new section 506A authorizes the President, subject to referenced eligibility requirements and criteria, to designate a country listed in section 107 of the Act as a beneficiary sub-Saharan African country eligible for the benefits described in subsection (b). This subsection (a) also requires that the President terminate a designation if the President determines that a beneficiary sub-Saharan African country is not making continual progress in meeting the requirements for designation.
Subsection (b) of new section 506A concerns preferential tariff treatment for certain articles and consists of the following two paragraphs:
1. Paragraph (1) authorizes the President to provide duty-free treatment for any article described in section 503(b)(1)(B) through (G) of the GSP statute that is the growth, product, or manufacture of a beneficiary sub-Saharan African country. A beneficiary sub-Saharan African country is a country listed in section 107 of the Act of 2000 that has been designated by the President as eligible under subsection (a) of new section 506A. The President is authorized to provide duty-free treatment for an article if, after receiving the advice of the International Trade Commission in accordance with section 503(e) of the GSP statute, the President determines that the article is not import-sensitive in the context of imports from beneficiary sub-Saharan African countries. The articles described in section 503(b)(1)(B) through (G) of the GSP statute are those that are normally excluded from duty-free treatment under the GSP and consist of the following:
a. Watches, except those watches entered after June 30, 1989, that the President specifically determines, after public notice and comment, will not cause material injury to watch or watch band, strap, or bracelet manufacturing and assembly operations in the United States or the United States insular possessions;
b. Import-sensitive electronic articles;
c. Import-sensitive steel articles;
d. Footwear, handbags, luggage, flat goods, work gloves, and leather wearing apparel which were not eligible articles for purposes of the GSP on January 1, 1995, as the GSP was in effect on that date;
e. Import-sensitive semimanufactured and manufactured glass products; and
f. Any other articles which the President determines to be import-sensitive in the context of the GSP.
2. Paragraph (2), as amended by section 7(a)(2)(A) of the Act of 2004, provides that the duty-free treatment under paragraph (1) will apply to any article described in that paragraph that meets the requirements of section 503(a)(2) (that is, the basic GSP origin and related rules). Paragraph (2) also makes application of those basic rules in this context subject to the following two additional rules:
a. If the cost or value of materials produced in the customs territory of the United States is included with respect to that article, an amount not to exceed 15 percent of the appraised value of the article at the time it is entered that is attributed to that United States cost or value may be applied toward determining the percentage referred to in subparagraph (A) of section 503(a)(2); and
b. The cost or value of the materials included with respect to that article that are produced in one or more beneficiary sub-Saharan African countries or former beneficiary sub-Saharan African countries shall be applied in determining that percentage.
Thus, in order for an article described in paragraph (1) to receive duty-free treatment, that article must meet the basic origin and related rules that apply to all eligible articles from any GSP-eligible country, but subject to two additional rules. In other words, (1) the article must have become the growth,
Subsection (c) of new section 506A defines the terms “beneficiary sub-Saharan African country” and “beneficiary sub-Saharan African countries” for purposes of the AGOA as a country or countries listed in section 107 of the Act that the President has determined is eligible under subsection (a) of new section 506A. In addition, pursuant to an amendment by section 7(a)(2)(B) of the Act of 2004, subsection (c) defines the term “former beneficiary sub-Saharan African country” as a country that, after being designated as a beneficiary sub-Saharan African Country under the AGOA, ceased to be designated as such a country by reason of its entering into a free trade agreement with the United States.
Subsection (b) of section 111 of the Act of 2000 revised section 503(c)(2)(D) of the GSP statute in order to accommodate inclusion of a reference to “any beneficiary sub-Saharan African country.” The effect of this amendment is to preclude the withdrawal of GSP duty-free treatment from a beneficiary sub-Saharan African country by application of the GSP competitive need limitation provisions. This amendment is not addressed in the regulatory changes adopted as a final rule in this document.
Section 114 of the Act of 2000 also amended the GSP statute by inserting after new section 506A another new section 506B, codified at 19 U.S.C. 2466b and entitled “Termination of benefits for sub-Saharan African countries.” This new section, as amended by section 7(a)(1) of the Act of 2004, provides for the continuation of GSP duty-free treatment through September 30, 2015, in the case of a beneficiary sub-Saharan African country as defined in section 506A(c). The provisions of section 506B also are not addressed in the regulatory changes adopted as a final rule in this document.
Section 112 of the Act of 2000 set forth rules that provide for the preferential treatment of certain textile and apparel products. These rules are codified at 19 U.S.C. 3721 and thus are outside the GSP statutory framework. Moreover, these rules in effect operate as an exception to the approach under the GSP because section 503(b)(1)(A) of the GSP statute excludes most textile and apparel articles from preferential (that is, duty-free) treatment under the GSP.
Subsection (a) of section 112 contains the basic preferential treatment statement. It provides that textile and apparel articles described in subsection (b) that are imported directly into the customs territory of the United States from a beneficiary sub-Saharan African country described in section 506A(c) of the GSP statute shall enter the United States free of duty and free of any quantitative limitations in accordance with the provisions set forth in subsection (b), if the country has satisfied the requirements set forth in section 113 of the Act of 2000.
Subsection (b) of section 112 lists the specific textile and apparel products to which the preferential treatment described in subsection (a) applies. The textile and apparel products described in section 112(b), as amended by section 3108(a) of the Act of 2002, section 7(b), (c) and (d) of the Act of 2004, and section 6002 of the Act of 2006, are as follows:
1. Apparel articles sewn or otherwise assembled in one or more beneficiary sub-Saharan African countries from fabrics wholly formed and cut, or from components knit-to-shape, in the United States from yarns wholly formed in the United States, or both (including fabrics not formed from yarns, if such fabrics are classifiable under heading 5602 or 5603 of the Harmonized Tariff Schedule of the United States (HTSUS) and are wholly formed and cut in the United States) that are entered under subheading 9802.00.80 of the HTSUS [paragraph (b)(1)(A)];
2. Apparel articles sewn or otherwise assembled in one or more beneficiary sub-Saharan African countries from fabrics wholly formed and cut, or from components knit-to-shape, in the United States from yarns wholly formed in the United States, or both (including fabrics not formed from yarns, if such fabrics are classifiable under heading 5602 or 5603 of the HTSUS and are wholly formed and cut in the United States) that are entered under Chapter 61 or 62 of the HTSUS, if, after that assembly, the articles would have qualified for entry under subheading 9802.00.80 of the HTSUS but for the fact that the articles were embroidered or subjected to stone-washing, enzyme-washing, acid washing, perma-pressing, oven-baking, bleaching, garment-dyeing, screen printing, or other similar processes [paragraph (b)(1)(B)];
3. Apparel articles sewn or otherwise assembled in one or more beneficiary sub-Saharan African countries with thread formed in the United States from fabrics wholly formed in the United States and cut in one or more beneficiary sub-Saharan African countries from yarns wholly formed in the United States, or from components knit-to-shape in the United States from yarns wholly formed in the United States, or both (including fabrics not formed from yarns, if such fabrics are classifiable under heading 5602 or 5603 of the HTSUS and are wholly formed in the United States) [paragraph (b)(2)];
4. Apparel articles wholly assembled in one or more beneficiary sub-Saharan African countries from fabric wholly formed in one or more beneficiary sub-Saharan African countries from yarns originating in the United States or one or more beneficiary sub-Saharan African countries or former beneficiary sub-Saharan African countries, or both (including fabrics not formed from yarns, if those fabrics are classifiable under heading 5602 or 5603 of the HTSUS and are wholly formed in one or more beneficiary sub-Saharan African countries), or from components knit-to-shape in one or more beneficiary sub-Saharan African countries from yarns originating in the United States or one or more beneficiary sub-Saharan African countries or former beneficiary sub-Saharan African countries, or both, whether or not the apparel articles are also made from any of the fabrics, fabric
5. Apparel articles wholly formed on seamless knitting machines in a beneficiary sub-Saharan African country from yarns originating in the United States or one or more beneficiary sub-Saharan African countries or former beneficiary sub-Saharan African countries, or both, whether or not the apparel articles are also made from any of the fabrics, fabric components formed, or components knit-to-shape described in paragraph (b)(1) or (b)(2) (unless the apparel articles are made exclusively from any of the fabrics, fabric components formed, or components knit-to-shape described in paragraph (b)(1) or (b)(2)), subject to the application of certain quantitative limits [paragraph (b)(3)];
6. Cashmere sweaters, that is, sweaters in chief weight of cashmere, knit-to-shape in one or more beneficiary sub-Saharan African countries and classifiable under subheading 6110.10 of the HTSUS [paragraph (b)(4)(A)];
7. Wool sweaters containing 50 percent or more by weight of wool measuring 21.5 microns in diameter or finer, knit-to-shape in one or more beneficiary sub-Saharan African countries [paragraph (b)(4)(B)];
8. Apparel articles that are both cut (or knit-to-shape) and sewn or otherwise assembled in one or more beneficiary sub-Saharan African countries, to the extent that apparel articles of such fabrics or yarns would be eligible for preferential treatment, without regard to the source of the fabric or yarn, under Annex 401 to the North American Free Trade Agreement (NAFTA). (This AGOA provision in effect applies to apparel articles that are entitled to preferential duty treatment under the NAFTA based on the fact that the fabrics or yarns used to produce them were determined to be in short supply in the context of the NAFTA. The subject fabrics and yarns include fine count cotton knitted fabrics for certain apparel, linen, silk, cotton velveteen, fine wale corduroy, Harris Tweed, certain woven fabrics made with animal hairs, certain lightweight, high thread count poly-cotton woven fabrics, and certain lightweight, high thread count broadwoven fabrics used in the production of men's and boys' shirts.
9. Apparel articles that are both cut (or knit-to-shape) and sewn or otherwise assembled in one or more beneficiary sub-Saharan African countries, from fabric or yarn that is not described in paragraph (b)(5)(A), to the extent that the President has determined that the fabric or yarn cannot be supplied by the domestic industry in commercial quantities in a timely manner and has proclaimed the treatment provided under paragraph (b)(5)(A) [paragraph (b)(5)(B)];
10. A handloomed, handmade, or folklore article or an ethnic printed fabric of a beneficiary sub-Saharan African country or countries that is certified as such by the competent authority of the beneficiary country or countries, subject to a determination by the President regarding which, if any, particular textile and apparel goods of the country or countries will be treated as being handloomed, handmade, or folklore articles or an ethnic printed fabric [paragraph (b)(6)];
11. Apparel articles sewn or otherwise assembled in one or more beneficiary sub-Saharan African countries with thread formed in the United States from components cut in the United States and one or more beneficiary sub-Saharan African countries or former beneficiary sub-Saharan African countries from fabric wholly formed in the United States from yarns wholly formed in the United States, or from components knit-to-shape in the United States and one or more beneficiary sub-Saharan African countries or former beneficiary sub-Saharan African countries from yarns wholly formed in the United States, or both (including fabrics not formed from yarns, if such fabrics are classifiable under heading 5602 or 5603 of the HTSUS) [paragraph (b)(7)].
12. Textile and textile articles classifiable under Chapters 50 through 60 or Chapter 63 of the HTSUS that are products of a lesser developed beneficiary sub-Saharan African country and are wholly formed in one or more such countries from fibers, yarns, fabrics, fabric components, or components knit-to-shape that are the product of one of more such countries [paragraph (b)(8)]; and
13. Apparel articles wholly assembled, or knit-to-shape and wholly assembled, or both, in one or more lesser developed beneficiary sub-Saharan African countries regardless of the country of origin of the fabric or yarn used to make the articles, subject to the application of certain quantitative limits [paragraph (c)];
Subsection (d) of section 112 concerns the elimination of existing quotas on textile and apparel articles imported into the United States from Kenya and Mauritius. This provision is not addressed in the regulatory changes adopted as a final rule in this document.
Subsection (e) of section 112, as amended by section 7(e) of the Act of 2004, sets forth special rules that apply for purposes of determining the eligibility of articles for preferential treatment under section 112. These special rules are as follows:
1. Paragraph (e)(1)(A) sets forth a special rule regarding the treatment of findings and trimmings. It provides that an article otherwise eligible for preferential treatment under section 112 will not be ineligible for that treatment because the article contains findings or trimmings of foreign origin, if the value of those foreign findings and trimmings does not exceed 25 percent of the cost of the components of the assembled article. This provision specifies the following as examples of findings and trimmings: Sewing thread, hooks and eyes, snaps, buttons, “bow buds,” decorative lace trim, elastic strips (but only if they are each less than 1 inch in width and used in the production of brassieres), zippers (including zipper tapes), and labels. However, as an exception to the paragraph (e)(1)(A) general rule, paragraph (e)(1)(C) provides that sewing thread will not be treated as findings or trimmings in the case of an article described in paragraph (b)(2) of section 112 (because that paragraph specifies that the thread used in the assembly of the article must be formed in the United States and thus cannot be of “foreign” origin).
2. Paragraph (e)(1)(B) sets forth a special rule regarding the treatment of specific interlinings, that is, a chest type plate, a “hymo” piece, or “sleeve header,” of woven or weft-inserted warp knit construction and of coarse animal hair or man-made filaments. Under this rule, an article otherwise eligible for preferential treatment under section 112 will not be ineligible for that treatment because the article contains interlinings of foreign origin, if the value of those interlinings (and any findings and trimmings) does not exceed 25 percent of the cost of the components of the assembled article. The paragraph also provides for the termination of this treatment of interlinings if the President makes a determination that United States manufacturers are producing those interlinings in the United States in commercial quantities.
3. Paragraph (e)(2) sets forth a
4. Paragraph (e)(3) sets forth a special rule regarding the treatment of certain specified components, namely collars and cuffs (cut or knit-to-shape), drawstrings, shoulder pads or other padding, waistbands, belt attached to the article, straps containing elastic, and elbow patches. Under this rule, an article otherwise eligible for preferential treatment under section 112 will not be ineligible for that treatment because the article contains a specified component that fails to meet the requirements set forth in section 112(b), regardless of the country of origin of the component.
Subsection (f) of section 112 defines certain terms for purposes of sections 112 and 113 of the Act of 2000 and, in paragraph (e)(2), states that the terms “beneficiary sub-Saharan African country” and “beneficiary sub-Saharan African countries” have the same meaning as those terms have under new section 506A(c) discussed above.
Finally, subsection (g) of section 112 provides that section 112 takes effect on October 1, 2000, and will remain in effect through September 30, 2015.
Section 113 of the Act of 2000 sets forth standards and conditions for the designation of beneficiary sub-Saharan African countries and for the granting of preferential treatment to textile and apparel articles under section 112. These provisions are primarily intended to avoid transshipment situations and thus ensure that preferential treatment is applied to goods as intended by Congress.
Subsection (a) of section 113 sets forth various terms and conditions that a potential beneficiary sub-Saharan African country must satisfy for purposes of preferential treatment under section 112. These terms and conditions involve enforcement and related actions to be taken by, and within, those potential beneficiary sub-Saharan African countries and thus, except in the case of paragraphs (a)(1)(F) and (a)(2), do not relate to matters that require regulatory action by CBP. Paragraph (a)(1)(F) requires a country to agree to report, on a timely basis, at the request of the CBP, documentation establishing the country of origin of covered articles as used by that country in implementing an effective visa system. For purposes of paragraph (a)(1)(F), paragraph (a)(2) states that documentation regarding the country of origin of the covered articles includes documentation such as production records, information relating to the place of production, the number and identification of the types of machinery used in production, the number of workers employed in production, and certification from both the manufacturer and the exporter.
Subsection (b) of section 113 sets forth regulatory standards for purposes of preferential treatment under section 112, prescribes a specific factual determination that the President must make regarding the implementation of certain procedures and requirements by each beneficiary sub-Saharan African country, prescribes a penalty that the President must impose on an exporter if the President determines that the exporter has engaged in transshipment, specifies when transshipment occurs for purposes of the subsection, and sets forth responsibilities of CBP regarding monitoring and reporting to Congress on actions taken by countries in sub-Saharan Africa. The specific provisions under subsection (b) that require regulatory action by CBP are the following:
1. Paragraph (b)(1)(A) provides that any importer that claims preferential treatment under section 112 must comply with customs procedures similar in all material respects to the requirements of Article 502(1) of the NAFTA as implemented pursuant to United States law, in accordance with regulations promulgated by the Secretary of the Treasury. The NAFTA provision referred to in paragraph (b)(1)(A) concerns the use of a Certificate of Origin and specifically requires that the importer (1) make a written declaration, based on a valid Certificate of Origin, that the imported good qualifies as an originating good, (2) have the Certificate in its possession at the time the declaration is made, (3) provide the Certificate to CBP on request, and (4) promptly make a corrected declaration and pay any duties owing where the importer has reason to believe that a Certificate on which a declaration was based contains information that is not correct.
2. Paragraph (b)(2) provides that the Certificate of Origin that otherwise would be required pursuant to the provisions of paragraph (b)(1)(A) will not be required in the case of an article imported under section 112 if that Certificate of Origin would not be required under Article 503 of the NAFTA (as implemented pursuant to United States law), if the article were imported from Mexico. Article 503 of the NAFTA sets forth, with one general exception, three specific circumstances in which a NAFTA country may not require a Certificate of Origin.
Finally, subsection (c) of section 113 requires CBP to provide technical assistance to the beneficiary sub-Saharan African countries and to send production verification teams to at least four beneficiary sub-Saharan African countries each year, and subsection (d) of section 113 contains an appropriation authorization to carry out these duties. These provisions are not addressed in the regulatory changes adopted as a final rule in this document.
The interim amendments to the CBP regulations set forth in T.D. 00–67 to implement the trade benefit provisions of the Act of 2000 consisted of the following: (1) The addition of a new § 10.178a (19 CFR 10.178a) reflecting the non-textile duty-free treatment provisions of new section 506A of the GSP statute as added by section 111(a) of the Act of 2000; (2) the addition of new §§ 10.211 through 10.217 (19 CFR 10.211 through 10.217) to implement those textile and apparel preferential treatment provisions within sections 112 and 113 of the Act of 2000 that relate to U.S. import procedures; and (3) the addition of a reference in the list of entry records in the Appendix (the interim “(a)(1)(A) list”) to Part 163 (19 CFR Part 163) to cover AGOA textile documentation.
T.D. 00–67 also included a number of interim amendments to the existing CBP regulations concerning the Generalized System of Preferences (GSP) program (19 CFR 10.171–10.178) to implement previous statutory and other changes to that program and to correct several out-of date statutory references. The specific GSP regulations affected were §§ 10.171(a), 10.175(e), 10.176(a), and 10.176(c) (19 CFR 10.171(a), 10.175(e), 10.176(a), and 10.176(c)). For more detailed information concerning these regulatory changes, please see T.D. 00–67.
Although the interim regulatory amendments were promulgated without prior public notice and comment procedures and took effect on October 1, 2000, T.D. 00–67 nevertheless provided for the submission of public comments which would be considered before adoption of the interim regulations as a final rule, and the prescribed public comment period closed on December 4, 2000. A discussion of the comments received by CBP is set forth below.
As a consequence of the statutory changes made by section 3108 of the Act of 2002 and the modifications to the HTSUS made by Proclamation 7626, T.D. 00–67 no longer fully reflected the state of the law. Accordingly, T.D. 03–15 set forth interim amendments involving the textile and apparel provisions in the AGOA and, in part, reflected changes made to those statutory provisions by section 3108 of the Act of 2002. The specific statutory changes addressed in T.D. 03–15 involved the amendment of several AGOA regulatory provisions to clarify the status of apparel articles assembled from knit-to-shape components, the inclusion of a specific reference to apparel articles formed on seamless knitting machines, a change of the wool fiber diameter specified in one provision and the addition of a new provision to cover additional production scenarios involving the United States and AGOA beneficiary countries. T.D. 03–15 also included a number of other changes to the AGOA implementing regulations to clarify a number of issues that arose after their original publication. For further details regarding these regulatory provisions,
The interim regulatory amendments promulgated by T.D. 03–15 became effective on March 21, 2003. However, public comments on the interim amendments were solicited, and a discussion of the comments received during the comment period, which closed on May 20, 2003, is set forth below.
This final rule incorporates in the regulatory text statutory changes made to the AGOA by section 7 of the Act of 2004 (and the modifications to the HTSUS made by Proclamation 7808) and by section 6002 of the Act of 2006 (and the modifications to the HTSUS made by Proclamation 8114). As stated earlier, because these changes to the interim regulatory texts, as described below, are not interpretative in nature but closely reflect the language of the statute, they are included in this final rule without need for comment.
1. In § 10.178a, paragraphs (d)(2) and (d)(4)(ii) are revised to reflect the amendment to section 506A(b)(2)(B) of the GSP statute providing for the inclusion of the cost or value of materials produced in “former beneficiary sub-Saharan African countries” toward satisfying the GSP 35% value-content requirement.
2. In § 10.178a, a new paragraph (d)(5) is added to reflect the definition of
“former beneficiary sub-Saharan African country” set forth in amended section 506A(c) of the GSP statute.
3. In § 10.212, a definition of “ethnic printed fabric” is added as new
paragraph (d) to reflect the inclusion of references to, and description of, “ethnic printed fabric” in paragraph (b)(6) of section 112 of the AGOA.
4. In § 10.212, a definition of “former beneficiary country” is added as new paragraph (f) to reflect the inclusion of references to this term in paragraphs (b)(3), (b)(7) and (e)(2) of section 112 of the AGOA as well as the definition of this term set forth in new paragraph (f)(4) of section 112 of the AGOA.
5. In § 10.212, a definition of “lesser developed beneficiary country” is added as new paragraph (j) to reflect the inclusion of references to this term in paragraphs (b)(8) and (c) of section 112 of the AGOA.
6. In § 10.213, paragraphs (a)(1) and (a)(2) are revised to conform to the amendment of the product description in the introductory text of paragraph (b)(1) of section 112 of the AGOA.
7. In § 10.213, paragraph (a)(4) is revised to conform to the amendment of the product description in the introductory text of paragraph (b)(3) of section 112 of the AGOA.
8. In § 10.213, paragraph (a)(8) is revised to conform to the amendment of the product description in paragraph (b)(5)(A) of section 112 of the AGOA.
9. In § 10.213, paragraph (a)(10) is revised to conform to the amendment of the product description in paragraph (b)(6) of section 112 of the AGOA.
10. In § 10.213, paragraph (a)(11) is revised to conform to the amendment of the product description in paragraph (b)(7) of section 112 of the AGOA.
11. In § 10.213, a new paragraph (a)(12) is added to reflect the addition of paragraph (b)(8) to section 112 of the AGOA.
12. In § 10.213, the
13. In § 10.213, re-designated paragraph (c) (formerly paragraph (b)), entitled “Special rules for certain component materials,” is revised by adding a new paragraph (c)(1)(v) to reflect the inclusion of an additional special rule relating to certain specified components in new paragraph (d)(3) of section 112 of the AGOA (now section 112(e)(3)).
14. The preference group descriptions on the Certificate of Origin set forth under paragraph (b) of § 10.214 are revised to reflect the amended product descriptions in section 112(b) of the AGOA. The instructions for completion of the Certificate in paragraph (c) of § 10.214 are also revised as appropriate to reflect the changes made to the Certificate.
CBP is now publishing one document that (1) addresses both the comments submitted on the interim regulations published in T.D. 00–67 and T.D. 03–15, and (2) adopts, as a final rule, the AGOA implementing regulations contained in the two interim rule documents with changes reflecting the statutory amendments made by the Acts of 2004 and 2006 as well as other changes identified and discussed below.
A total of 19 commenters responded to the solicitation of public comments in the October 5, 2000, interim rule document referred to above. One commenter addressed the interim conforming amendments to the GSP regulations, and the other 18 commenters made a variety of observations or suggestions regarding the interim AGOA implementing regulations.
It should be noted that the comments received in response to T.D. 00–67 were received prior to the subsequent statutory changes effected by section 3108 of the Act of 2002, the regulatory interim amendments made by T.D. 03–15, and the statutory changes effected by section 7 of the Act of 2004 and section 6002 of the Act of 2006. To the extent that the comments received were unaffected by these subsequent changes, CBP has responded.
The comment on the interim conforming amendments to the existing GSP regulations concerned specifically the revision of paragraph (a) of § 10.176. This commenter asserted that, in view of the decision in
The commenter seeks a change to revised § 10.176(a) based on the decision in
CBP does not agree that the changes to revised § 10.176(a) suggested by the commenter should be implemented as part of this final rule document. Section 226 of the Customs and Trade Act of 1990 (Public Law 101–382, 104 Stat. 660) amended the GSP statute (19 U.S.C. 2463) to include explicit country of origin language nearly identical to that found in the Caribbean Basin Economic Recovery Act (CBERA) (19 U.S.C. 2703). As the legislative history of section 226 indicates that the GSP and CBERA “growth, product or manufacture” requirements should be applied identically (
All of the comments received on the interim AGOA implementing regulations were directed to the textile and apparel provisions of sections 112 and 113 of the AGOA, and thus there were no comments pertaining to the expanded GSP provisions contained in section 111 of the AGOA. The comments submitted by these 18 commenters are summarized and responded to below.
Four commenters expressed views regarding the scope of the AGOA, particularly in regard to its intended beneficiaries.
Three commenters asserted that because the Congressional intent behind the AGOA was to encourage two-way trade between the United States and the countries of sub-Saharan Africa with no other third country participation, CBP must bar preferential entry of any merchandise under the AGOA that has undergone any processing or been advanced in value or improved in condition in any way other than in the United States or a designated beneficiary country, except for one specific provision involving lesser developed beneficiary countries. Accordingly, these commenters stated that CBP must ensure that the final regulations maximize trade benefits to the beneficiary countries and to producers in the United States.
CBP agrees that the AGOA was intended to promote the creation of a climate conducive to greater levels of trade and investment and to foster a growing economic partnership between the United States and sub-Saharan African countries (
CBP also agrees that under the statutory scheme, the processing of textile and apparel articles entitled to preferential treatment under the AGOA is specified to occur either in the United States or in the AGOA beneficiary countries (and in certain instances, in former beneficiary countries, if any), except as regards the sourcing of fabric or yarn in the case of certain lesser developed beneficiary countries. In addition, the direct importation requirement set forth in the statute and regulations operates as a practical matter to limit the feasibility of operations in countries other than the United States or AGOA beneficiary countries.
One commenter complained that the AGOA textile and clothing provisions substantially dilute the benefits of the NAFTA for Canadian textile producers and their United States customers and suppliers. This commenter noted in this regard that the AGOA provisions impair the ability of United States fabric and apparel producers to source yarns and fabrics from all the available competitive suppliers in the NAFTA region, because they are limited to buying from United States suppliers. The commenter argued that this runs contrary to the textile/apparel infrastructure that has emerged under the NAFTA. Another commenter expressed regret that Canadian and NAFTA yarns and fabrics are excluded from eligibility under the AGOA.
Although CBP agrees that the provisions provide limited benefits to Canadian textile producers, CBP believes this to be consistent with the language and intent of the legislation. The intent of the legislation was to foster increased opportunities for the United States and countries in the sub-Saharan African region. Thus, where the legislation requires that yarns and fabric for certain apparel articles be wholly formed in the United States, it does not allow for the sourcing of yarns and fabric from other NAFTA countries. CBP notes that the “wholly formed” requirement would not preclude the sourcing of fibers from NAFTA countries (or any other countries) so long as those fibers are spun into yarns and used to form qualifying fabric in the United States.
One commenter stated that within the § 10.212 definition of “apparel articles” the reference to HTSUS subheading “6406.99” is incorrect because that subheading includes rubber/plastic footwear parts. This commenter suggested that the correct reference should be to subheading “6406.99.15.”
CBP agrees with the commenter that the reference to HTSUS subheading 6406.99 is incorrect. In 2000, the reference should have been to subheading 6406.99.15 so as to limit the articles to those made of textile materials. In 2012, the subheading was changed from 6406.99.15, HTSUS to 6406.90.15, HTSUS. Since the definition of “apparel articles” in § 10.212 was directed to textile apparel articles, the reference to subheading 6406.99 in this definition (now § 10.212(a)) has been replaced in this final rule document by a reference to subheading 6406.90.15, HTSUS.
One commenter noted with regard to § 10.212 that definitions of “knit-to-shape” and “major parts” already appear in § 102.21 of the CBP regulations (19 CFR 102.21). The commenter argued that those definitions should not be repeated in § 10.212 because meanings are presumed to be consistent throughout the regulations.
CBP does not agree with this commenter. While there may be cases in
One commenter took issue with what it believes is an assumption or interpretation of CBP that the words “wholly assembled” in the regulatory texts would preclude partial assembly in the United States. This commenter argued that Congress neither intended to penalize goods that include value added in the United States nor wanted to discourage apparel companies from maximizing the use of U.S. inputs involving partial assembly in the United States.
CBP disagrees with the commenter's view of the intent of Congress. Certain of the categories of textile and apparel products entitled to preferential treatment under the AGOA specify that the affected articles must be “sewn or otherwise assembled in one or more beneficiary sub-Saharan African countries.”
Fourteen commenters submitted observations on the § 10.212 definition of “wholly formed” which was drafted with reference to yarns, thread and fabric.
Two commenters indicated that the reference to “thread” in the definition was inappropriate because the word “wholly” does not appear in the statute in the context of thread formation. Rather, these commenters noted that the statute merely refers to “thread formed in the United States.” They therefore suggested that the definition be amended to ensure consistency with the wording of the statute.
CBP agrees. In this regard, it is noted that in T.D. 03–15, CBP replaced the original interim § 10.212 definition of “wholly formed” with two definitions, one covering “wholly formed” as it relates to fabrics and the other covering “wholly formed” as it relates to yarns (
With regard to fabrics, eight commenters expressed the view that the concept of “wholly formed” encompasses dyeing, printing and finishing operations and that, consequently, any requirement that a fabric be “wholly formed in the United States” means that any dyeing, printing or finishing of the fabric also must be performed in the United States. Some of the commenters further recommended that the regulatory texts be modified to clearly reflect this principle or to set forth all processing steps necessary to result in “wholly formed” fabric.
Six commenters took the position that dyeing, printing and finishing operations do not fall within the concept of “wholly formed” and that, consequently, a requirement that a fabric be “wholly formed in the United States” does not mean that any dyeing, printing or finishing of the fabric must be restricted to the United States. Some of the commenters further recommended that the regulatory texts be modified to clearly reflect the principle that U.S. fabric may be dyed and finished outside the United States.
The comments regarding the meaning of “wholly formed” as it applies to fabric fall on both sides of the issue of whether dyeing, printing and/or finishing should be included within the scope of the term. Some argue strenuously that dyeing, printing and/or finishing must be encompassed within the definition of “wholly formed”, while others argue just as strenuously that these processes clearly are not part of fabric formation. Both sides argue that their view reflects the intent of Congress.
CBP agrees with the latter position. “Form” refers to shape, being, existence. “Wholly” refers to completeness. Fabric is completely shaped, or wholly formed, prior to finishing. CBP disagrees with those who argue that any definition of “wholly formed” that does not include dyeing, printing and finishing would render the term “wholly” meaningless. It has meaning as it applies to the term “formed;” that is, it refers to all of the processes that contribute to the formation of the fabric.
CBP is correct in interpreting that dyeing, printing and similar finishing operations may be performed on fabrics in the United States or in the beneficiary country. Consistent with the Breaux-Cardin rules, CBP has not included such dyeing, printing and finishing operations (or similar procedures) in the definition of operations that occur under the term “wholly formed.” As a result, the interim regulations do not prohibit such dyeing and finishing operations from being performed in beneficiary countries.
CBP believes it would be inconsistent with the plain language of the AGOA to conclude that printing and/or dyeing is part of the fabric formation process. In drafting the interim regulations, CBP crafted a definition of “wholly formed” which was based in part on the definition of “fabric-making process” contained in § 102.21(b)(2) of the CBP regulations (19 CFR 102.21(b)(2)) and which was also intended to reflect the common meanings of the words “wholly” and “formed.” “Form” is defined, in part, in
“Finishing” is defined in
Absent evidence of a different commercial meaning or a legislative intent to the contrary, the terms of a tariff statute are to be given their common meaning. Based on the common meaning of the terms “wholly” and “formed,” the position of CBP is that dyeing, printing and finishing of fabric are not part of the fabric formation process and thus do not fall within the scope of “wholly formed” as it relates to fabric.
As to the reference in the comment to the Breaux-Cardin rules (the textile and apparel country of origin rules set forth in section 334 of the Uruguay Round Agreements Act (URAA), and implemented in § 102.21 of the CBP regulations (19 CFR 102.21)), CBP notes that the AGOA is a preferential tariff treatment program which is based, for textile apparel, upon specified manufacturing processes; it is not a program based upon origin.
Processes such as bleaching, dyeing and printing that are commonly recognized as “finishing operations” are separate from the forming of the materials and it is therefore appropriate that those processes should not affect the definition of “wholly formed.” The final rule should clarify the distinction between formation and finishing.
Based on the definitions cited above in this comment discussion, CBP agrees with the comment, including the suggestion that the final regulations should contain a clarification regarding the fact that the processes of dyeing, printing and finishing are distinct from fabric formation.
In the terminology of the textile industry, “finishing” is necessary before fabric can be used, and without it the fabric is “unfinished,” the opposite of “wholly formed.” Apparel is not made of “unfinished” fabric, and “unfinished” cannot be stretched to mean “complete,” “entire” or “whole.”
CBP disagrees with this comment. As already stated, CBP believes that finishing and formation are separate processes. “Unfinished” is not the opposite of “wholly formed,” and CBP also notes that unfinished fabric is still fabric. The statute requires formation of fabric. Based upon the language of the statute and the common meaning of the terms chosen by Congress to express its intent in the statute, “wholly formed” as used in the AGOA speaks to formation of fabric and does not include finishing.
The common definition of “formed” as it relates to fabric is that once the yarn is spun and fabric is woven or knit, it is considered formed. Printing, dyeing and finishing (or similar processes) are irrelevant and not essential to the fabric formation process and thus should be allowable operations in the United States and/or beneficiary countries. It should be made clear that one can export greige fabric to the AGOA beneficiary country and then dye, cut and assemble there.
Based on the definitions cited earlier in this wholly formed fabric comment discussion, CBP agrees that printing, dyeing and finishing are not part of the fabric formation process. CBP also agrees that dyeing, printing and finishing operations may occur in the United States or in the AGOA beneficiary countries except in the case of provisions subject to the restrictions under subheading 9802.00.80, HTSUS.
The plain meaning of the term “wholly formed” when applied to fabric refers not only to the basic greige goods but also to any dyeing, printing and other finishing operations prior to cutting of the apparel components, since otherwise the word “wholly” would be essentially meaningless.
As discussed above, “wholly” has meaning as it applies to “formed.” Congress is presumed to use words according to their common, ordinary meaning in drafting legislation unless some other intent is evident. Nothing in the AGOA or in the Conference Report relating to the Act leads CBP to believe that Congress intended a meaning other than the plain meaning of the words “wholly” and “formed.” Therefore, based on the common meanings of “wholly” and “formed,” CBP disagrees with the commenter's assertion that “wholly formed” as it refers to fabric includes dyeing, printing and finishing operations.
If Congress had intended to limit the phrase “wholly formed” to the formation of the greige goods, there would have been no need to include the word “wholly” in the statute. There is no circumstance in which greige goods may be “partially” formed in one country and “partially” formed in another country. Since language in a statute must be read to give effect to all of its terms, the use of the word “wholly” was evidently intended to reference dyeing, printing and finishing operations.
As already discussed above, “wholly” is an adverb that applies to “formed.” An examination of the common meanings of the terms, which Congress
In sections 112(b)(1) and (b)(2) of the AGOA, “wholly” means fabrics which have been processed up to the point at which they are ready to be transformed into a new and different article of commerce, that is, apparel. Before fabric can be transformed into apparel through cutting and assembly, it must first be scoured and bleached or dyed or printed and finished. Therefore, “fabrics wholly formed” means fabrics which have been formed from their constituent yarns by knitting, weaving, etc. and subsequently scoured or bleached or dyed or printed and finished in the United States only (the word “wholly” makes it clear that none of these processes may be carried out on the fabric in any other country).
This comment asserts that dyeing, printing and finishing must be within the meaning of “fabrics wholly formed” without offering support for the assertion other than an argument that such processing must occur before fabric is cut and assembled into apparel. Although fabric is normally dyed or printed and finished before being cut and assembled into goods, that is not always the case. Some garments are garment-dyed, a process recognized by Congress in section 112(b)(1)(B) of the AGOA which requires apparel to be assembled in one or more AGOA beneficiary countries from “fabrics wholly formed” and cut in the United States. If “fabrics wholly formed” meant that a greige fabric could not be “wholly formed” and that to be “wholly formed” a fabric had to be dyed or printed and finished in the United States, it would be incongruous for Congress to provide for garment-dyeing in the beneficiary countries in section 112(b)(1)(B) of the AGOA as it did. CBP is not persuaded by this comment and for reasons already stated maintains that dyeing, printing and finishing are operations separate and apart from the formation of fabric and thus do not fall within the scope of “wholly formed” as it pertains to fabric.
Longstanding practice has made a distinction between “formed” (that is, knitted, woven, tufted, etc.) and “wholly formed” (meaning formed and subject to further processing to complete its identity, that is, preparation, dyeing or printing, and finishing). Congress clearly intended to make this distinction in the AGOA.
CBP disagrees with the assertion made in the comment which is offered without support. The term “wholly formed” appears in subheading 9802.00.90, HTSUS, which is the provision created under the NAFTA to succeed the Special Regime program and which covers textile and apparel goods assembled in Mexico from fabric components wholly formed and cut in the United States. The term “wholly formed” has been interpreted by CBP in numerous rulings under this provision as referring to fabric that is woven or milled in the United States.
In order to be consistent with the Special Access Program, as Congress intended, CBP must define the “forming” of fabric in the AGOA regulations to include the processes of dyeing, printing and finishing in addition to the processes of weaving and knitting. The Special Access Program clearly applies to goods that only undergo the overseas process of assembly and do not undergo other fabrication processes overseas, including dyeing, printing and finishing in the beneficiary country. Manifestly, fabric components exported from the United States under the Special Access Program could only be “in condition ready for assembly with no further fabrication” if one of the two exclusive steps undertaken before export from the United States (that is, “forming” and “cutting” the fabric) included the processes of dyeing, printing and finishing, and those processes would most sensibly be placed within the category of fabric formation.
CBP agrees that Congress wanted the AGOA to be administered in a manner similar to the way in which the Special Access program is administered. This desire is evident in the Conference Report relating to the Act of 2000. However, CBP finds nothing in the
Thus, CITA recognized a distinction between fabric formation and fabric finishing and viewed dyeing and printing as being in the latter category. There is no discussion of finishing of fabrics as being considered part of fabric formation in the notices regarding the Special Access and Special Regime programs.
In order to qualify under section 112(b)(1) of the AGOA, the apparel articles must be either “entered under subheading 9802.00.80” or “qualified for entry” under that subheading but for the fact of certain operations performed on the assembled articles, and, in order to qualify under subheading 9802.00.80, the components exported to the foreign country must be “ready for assembly without further fabrication.” This means that in order to qualify under subheading 9802.00.80, neither the fabric nor the fabric components could be sent to the foreign country and subjected to operations such as dyeing, printing and other finishing operations (in other words, any operations such as
CBP agrees that fabric formed and cut in the United States and used in the assembly of apparel articles described in § 10.213(a)(1) and (a)(2) (which corresponds to § 112(b)(1) of the Act) cannot be subject to dyeing, printing or most other finishing operations in an AGOA beneficiary country. The apparel described in § 10.213(a)(1) is entered under subheading 9802.00.80, HTSUS, which precludes processing of the U.S. components outside the United States other than by assembly operations or operations incidental to assembly. The apparel described in § 10.213(a)(2) are goods which would have qualified for entry under subheading 9802.00.80, HTSUS, but for the performance of certain enumerated operations. The regulations implementing subheading 9802.00.80, HTSUS (
There are close parallels between the two special access rules contained in Appendix 2.4 of NAFTA Annex 300–B and the first two categories of goods afforded preferential treatment under the AGOA. As regards the second special access rule (which is implemented in HTSUS subheading 9802.00.90) and the second AGOA category, each contains the same two core requirements, that is, (1) that all the fabric components must be formed and cut in the United States and (2) that those fabric components must, by virtue solely of those forming and cutting processes, be in condition ready for assembly overseas (certain specified post-assembly dyeing and washing operations are permitted under each provision); thus, a “fabric component” is produced by the operations of forming and cutting, and only by those operations. However, in the case of the first special access rule and the first AGOA category (which are both covered by HTSUS subheading 9802.00.80 and thus include two identical core requirements, that is, that the components must be fabricated in the United States and must be exported in a condition ready for assembly without further fabrication), the two core requirements could only be met if the fabric components were fully dyed, printed, and finished in the United States, because there is no provision for post-assembly dyeing, printing, and finishing overseas. Therefore, if the phrase “wholly formed and cut” in the AGOA does not include dyeing, printing and finishing operations, the first AGOA category would become meaningless because its terms could not be met as a technological matter.
CBP disagrees with the premise of the argument in the comment that the limitations or requirements set forth in subheading 9802.00.80, HTSUS, and applicable to the goods described in § 10.213(a)(1) and (a)(2) (section 112(b)(1)(A) and (B) of the AGOA) impact upon the meaning of “wholly formed and cut” as used in the AGOA. The same terms, “wholly formed” and “cut,” appear in § 10.213(a)(3) (section 112(b)(2) of the AGOA), albeit in a different order but, in CBP's view, with the same meaning. “Wholly formed” is used in all three paragraphs in regard to fabric. The limitations associated with subheading 9802.00.80, HTSUS, are clearly tied to section 112(b)(1)(A) and (B) of the AGOA because Congress specifically required, in the case of goods described in section 112(b)(1)(A) of the AGOA, that the goods be entered under subheading 9802.00.80, HTSUS, and, in the case of goods described in section 112(b)(1)(B) of the AGOA, that the goods would have qualified for entry under subheading 9802.00.80, HTSUS, but for the performance of certain enumerated operations. However, section 112(b)(2) of the AGOA, which requires the use of fabric “wholly formed” in the United States, contains no mention of subheading 9802.00.80, HTSUS. If CBP were to adopt the reasoning set forth in the comment, CBP would impose a restriction under section 112(b)(2) of the AGOA that Congress clearly intended to apply in the case of goods described in section 112(b)(1)(A) and (B) of the AGOA but just as clearly did not include in section 112(b)(2) of the AGOA.
Similar use of the word “wholly” is found in subheading 9802.00.90, HTSUS, which confers duty-free entry under the NAFTA for certain goods imported from Mexico, that is, textile and apparel goods “assembled in Mexico in which all fabric components were wholly formed and cut in the United States. . . .” Clearly, the intent of Congress in that provision as well as in the AGOA was to go beyond those processes by which yarns are manufactured into fabric and to include fabric finishing operations in the United States.
CBP disagrees that the words “assembled in Mexico in which all fabric components were wholly formed and cut in the United States” in subheading 9802.00.90, HTSUS, and CBP rulings construing that subheading support a conclusion that, for purposes of the AGOA, dyeing, printing and finishing operations must occur in the United States for fabric to be “wholly formed.” There is nothing in the language of subheading 9802.00.90, HTSUS, or in the rulings issued by CBP interpreting that provision that would compel that conclusion. On the contrary, subheading 9802.00.90, HTSUS, and § 10.213(a)(2) of the regulations (section 112(b)(1)(B) of the AGOA) expressly permit garment dyeing and other finishing operations after assembly. The inclusion of references to those post-assembly operations supports the conclusion that dyeing or finishing of fabric prior to cutting and exportation of the components for assembly is not required for the fabric to be “wholly formed.” In fact, a requirement to dye the fabric prior to exportation of the cut components would be counterproductive in the case of a producer planning to garment dye his apparel after assembly.
Rulings issued by CBP construing HTSUS subheading 9802.00.90 support the conclusion that the references to fabrics “wholly formed” in the United States require that any dyeing, printing and other finishing operations prior to cutting take place in the United States rather than in the sub-Saharan African country or anywhere else.
As already stated, CBP believes the rulings construing subheading 9802.00.90, HTSUS, support a conclusion opposite to the one asserted by this commenter. The terminology in subheading 9802.00.90, HTSUS, is different from that used in the various textile provisions of the AGOA. Although the term “wholly formed” appears in subheading 9802.00.90, HTSUS, and in the AGOA, in subheading 9802.00.90, HTSUS, it applies to “fabric components” whereas in the AGOA it is used with reference to “fabric” and “yarns.” In subheading 9802.00.90, fabric components which have been “wholly formed and cut” are exported to Mexico for assembly. The
As CBP has already noted in this comment discussion, the inclusion of references to post-assembly operations in subheading 9802.00.90, HTSUS, supports the conclusion that dyeing or finishing of fabric prior to cutting and exportation of the components for assembly is not required for the fabric to be “wholly formed” because a requirement to dye the fabric prior to exportation of the cut components would be counterproductive in the case of a producer planning to garment dye his apparel after assembly.
The definition of “wholly formed” included in the interim regulations is fundamentally inadequate because it could be interpreted to limit this concept (in the case of fabrics) to the circumstance where a greige good is produced, without referencing the addition of any dyeing, printing and other finishing operations that take place before the fabric for the apparel is cut into the component parts. Accordingly, under section 112(b)(2) of the AGOA, the interim regulations could be interpreted to permit the AGOA preference to apply to apparel made from greige goods produced in the United States and subjected to dyeing, printing and other finishing operations in the beneficiary country. However, although section 112(b)(2) of the AGOA expressly permits the cutting of fabric in the beneficiary country, it does not permit additional operations such as dyeing, printing and finishing prior to the cutting of the fabric to be conducted in the beneficiary country (or anywhere else other than the United States).
CBP disagrees with the underlying premise of this comment, that is, that “wholly formed” as it pertains to fabric includes dyeing, printing and finishing operations. The reasons for this CBP position have already been explained in this comment discussion. Additionally, CBP disagrees with the assertion that cutting is the only operation that may be performed on fabric in the AGOA beneficiary countries under section 112(b)(2) of the AGOA because that provision only refers to cutting of fabric. Following that reasoning in the interpretation of the AGOA would mean that any operation not specifically mentioned in a provision simply could not occur either in the United States or in an AGOA beneficiary country. CBP believes that reasoning represents a restrictive approach in interpreting the AGOA provisions and was not intended by Congress in enacting trade preference provisions subject to express conditions. For example, the express conditions on preference that articles may not be advanced in value or improved in condition abroad other than by assembly or operations incidental to assembly (which Congress provided in subheading 9802.00.80, HTSUS, and incorporated by reference in certain provisions of the AGOA) would have been entirely unnecessary under the commenter's interpretive view.
The references in the statute to “apparel articles assembled” and “apparel articles cut and assembled” in beneficiary countries means that no benefits are provided for or intended for operations other than assembly-related operations except when explicitly stated in the statutory provision.
CBP finds no basis within the language of the AGOA to conclude, as asserted by the above comment, that if an operation (that is, dyeing, printing or finishing) is not specified within the Act, then it must occur in the United States and may not occur in an AGOA beneficiary country. CBP finds no support for that conclusion in the language of the Act or in its legislative history. In the Statement of Policy in section 103 of the AGOA, Congress articulated the goals or purpose behind this legislation. Among the goals, Congress stated its support for encouraging increased trade and investment between the United States and sub-Saharan Africa, reducing tariff and nontariff barriers and other obstacles to sub-Saharan African and United States trade, and strengthening and expanding the private sector in sub-Saharan Africa. A conclusion that silence regarding specific operations related to the production of apparel and the materials utilized in that production means that those operations must occur only in the United States is at odds with these stated goals.
Congress in the first three categories of eligible goods took exquisite pains to specify, in positive, explicit language, the overseas operations that would qualify an apparel article for duty-free treatment: (1) The first category refers only to assembly abroad; (2) the second category refers only to assembly abroad plus ten carefully enumerated post-assembly dyeing and finishing operations; and (3) the third category refers only to two overseas operations, that is, cutting and assembly. Thus, any additional overseas operations, other than incidental, trivial ones, would disqualify the article. In carefully specifying cutting and assembly as the overseas processes in the third category, Congress could hardly have intended to allow those third category goods to undergo an entire set of additional overseas processes when Congress thought it was necessary to positively specify them in the second category as a predicate for duty-free eligibility.
As already pointed out in this comment discussion, the first and second categories of eligible goods are clearly tied to requirements set forth in subheading 9802.00.80, HTSUS. Congress chose not to impose these requirements in the third category of eligible goods. By choosing to draft the requirements for the third category of eligible goods differently from those of the first and second categories, CBP understands that Congress deliberately intended different requirements to apply. The commenter asks CBP to impose on the third category of eligible goods restrictions taken from the first and second categories of eligible goods. As Congress did not impose those restrictions, neither can CBP.
In the case of the third category of eligible goods, Congress could not, through its silence on the matter, have intended that preferential origin would be conferred on articles that underwent dyeing, bleaching, printing, finishing, etc., in beneficiary countries because this would be inconsistent with United States obligations as a party to the WTO Agreement on Rules of Origin. Annex II of that Agreement requires each party to the Agreement to precisely and positively specify the manufacturing or
CBP does not agree that interpreting “wholly formed” as not including dyeing, printing and finishing, thus allowing those processes to occur in the AGOA beneficiary countries, would violate United States obligations as a party to the World Trade Organization (WTO) Agreement on Rules of Origin. CBP first notes in this regard that since the AGOA provisions incorporate standards for a tariff preference rather than rules of origin, the WTO Agreement on Rules of Origin is not directly applicable to the AGOA. Moreover, even if the WTO Agreement on Rules of Origin were applicable in an AGOA context, CBP notes that the applicable provision referred to by the commenter requires that “in cases where the criterion of manufacturing or processing operation is prescribed, the operation that confers preferential origin shall be precisely specified.” Annex II, Clause 3, WTO Agreement on Rules of Origin. In the AGOA, Congress stated positively the operations necessary for preferential treatment. Clause 3, referenced by the commenter, does not preclude additional operations from occurring or being allowed, but rather only provides that those additional operations must be specified in the preferential rule if they affect the determination of preferential origin.
In referring in the AGOA to apparel assembled from “fabrics wholly formed and cut in the United States,” Congress mentioned only two steps, that is, forming and cutting. Since fabric finishing is an intermediate step between fabric formation and cutting, it cannot be a separate category but rather must be associated with one of the two statutory steps. Clearly, as between “wholly formed” and “cut,” “finished” belongs with the former.
CBP rejects the premise of this comment that an operation which is not specified in the AGOA must be included with one that is specified. As stated above, Congress enumerated the required manufacturing processes and where those processes had to occur in order for apparel to qualify for preferential treatment under the AGOA. Any other processes not affecting eligibility under the AGOA need not be associated with a specified process as argued in the comment.
Dyeing, printing and finishing operations must be performed on the fabric before it is cut into the shapes required by the particular apparel article to be produced. For both practical and aesthetic reasons, these operations cannot be performed on the apparel components after they are cut (in some cases, dyeing or printing is done on an apparel garment after it is assembled from the cut pieces, but those operations are exceptional and differ qualitatively from the dyeing, printing and other fabric finishing operations included within the concept of “wholly formed” fabric).
CBP agrees that dyeing, printing and finishing operations are normally performed on fabric before it is cut into components for assembly into garments. However, CBP disagrees with the suggestion made in the comment that the “concept of `wholly formed' fabric” includes dyeing, printing and other fabric finishing operations. The reasons for CBP disagreement have been stated earlier in this comment discussion.
Sections 112(b)(1) and (b)(2) of the AGOA should include fabric dyeing and finishing in the United States (and only in the United States). Dyeing and finishing processes are necessary to add color, chemical and physical properties to the fabrics prior to their being used in apparel and industrial products. Fabrics not dyed and finished are not yet ready to be components of the retail merchandise.
As stated above, CBP agrees that normally dyeing, printing and finishing operations are performed on fabric prior to cutting and assembly into garments. However, this is not always true as some garments are garment-dyed and some may be made of yarn-dyed fabric. For reasons already stated in this comment discussion, CBP disagrees with this commenter's suggestion that fabric dyeing and finishing should be included in section 112(b)(1) and (b)(2) of the AGOA.
The words “or other process” in the definition of “wholly formed” as it applies to fabric, if interpreted narrowly to exclude dyeing, printing and finishing operations, would have the consequence of conferring duty-free treatment on apparel articles that undergo in sub-Saharan Africa not only cutting and assembly but also any of the wide range of fabric dyeing, printing and finishing operations that transform fabric after the early stage processes (weaving, knitting, needling, etc.) that are performed in the United States. This result would be contrary to Congressional intent because Congress in the development of the AGOA deliberately chose not to aid the development of sub-Saharan African industry by sending offshore the intermediate and final value-adding processes (for example, bleaching, stone-washing, acid washing, dyeing, printing, embroidering) which are applied to greige fabric that is transformed into final textile articles or into apparel articles.
As already noted in an earlier comment response, Congress sought to promote the growth of trade and economic activity between the United States and sub-Saharan African countries. Congress specified the requirements for eligibility of goods and, in some cases, restrictions which Congress desired for certain categories of goods. CBP has found no support, nor was any provided by the commenter, for the argument that Congress deliberately chose not to send certain value-adding processes to offshore locations.
The phrase “or other process” within the definition of “wholly formed” as it pertains to fabric, relates to fabric formation processes that were not enumerated or that may have yet to be developed.
Dyeing and finishing operations represent the largest part (that is, 70–75 percent) of the value added in a fabric and represent the most complicated part of the textile manufacturing process. Moreover, in terms of aesthetic value, printing adds on the order of 100 percent of value based on creative effort and intellectual property considerations. It would be absurd to consider as “wholly formed” a product which lacks these value-added components.
CBP does not dispute that dyeing, printing and finishing operations may be important in that they may add significantly to the value of fabric and contribute to the use of fabric. However, CBP finds no rationale for using a value-added measurement as a basis for including those operations within the scope of the term “wholly formed.” Based on the common meaning of the terms “wholly” and “formed” as discussed above, and in the absence of any language in the AGOA or its legislative history to support a contrary conclusion, the amount of value added by dyeing, printing or finishing operations (even when contrasted to the relatively lower percentage of cost attributable to labor) is entirely irrelevant in determining if fabric is “wholly formed.”
The legislative history of the AGOA contains no indication that Congress
As already stated, CBP relies on the words Congress used in the statute and Congress is presumed to have used these words according to their common, ordinary meaning unless some other intent is evident. The legislative history of the AGOA contains no reference to precluding dyeing, printing and other finishing operations from occurring in the AGOA beneficiary countries. Moreover, the legislative history provides no reason for CBP to interpret the term “wholly formed” other than according to its plain meaning.
The current practice of permitting fabric finishing operations in the United States or the beneficiary countries greatly enhances the value of this program and thus the incentive to use U.S. fabric. Without this flexibility, U.S. fabric sales (from greige goods manufacturers) may be lost and trade may be diverted to lower cost Asian suppliers-an outcome that runs contrary to the spirit of the legislation.
CBP first notes that the definition of “wholly formed” as it relates to fabric is predicated not on any potential impact on international trade patterns but rather only on the common meaning of the words chosen by Congress to express its intent in the AGOA. As already noted in this comment discussion, Congress intended benefits to accrue to the United States and the AGOA beneficiary countries by increasing trade and investment between the United States and sub-Saharan Africa countries and by reducing obstacles to trade between sub-Saharan African countries and the United States. Among its findings in section 102 of the AGOA, Congress found that “it is in the mutual interest of the United States and the countries of sub-Saharan Africa to promote stable and sustainable economic growth and development in sub-Saharan Africa” and that “encouraging the reciprocal reduction of trade and investment barriers in Africa will enhance the benefits of trade and investment for the region as well as enhance commercial and political ties between the United States and sub-Saharan Africa.” Based on these findings, CBP agrees with the basic point made in this comment. CBP further notes, however, that performing dyeing, printing and finishing operations on U.S.-formed fabric in countries other than the United States and AGOA beneficiary countries would be contrary to Congressional intent reflected in sections 102 and 103 of the AGOA and thus should not be allowed. Therefore, CBP believes that dyeing, printing and finishing operations performed on U.S.-formed fabric outside the United States should continue to be restricted in the regulatory texts to AGOA beneficiary countries — see the description of the regulatory text changes to 19 CFR 10.2013(b)(1) at the end of this wholly formed fabric comment discussion.
It was the understanding of the dyeing and finishing industry and Congressional representatives and trade organizations that the AGOA legislation was intended to benefit not only sub-Saharan African countries but also producers of textile fabrics in the United States. If the legislation is now interpreted as to benefit only unfinished (versus wholly formed) fabrics, the results will be devastating to the U.S. dyeing and finishing industry which will fail to benefit from the AGOA and will suffer from yet another wave of imported products priced without the environmental and health and safety standards which the U.S. textile industry is proud to uphold.
CBP is not in a position to comment on “understandings” regarding this legislation prior to its passage. As stated above, CBP can only interpret the legislation based upon its words, Congressional intent as reflected by those words, and information contained in the Conference Report relating to the AGOA. With regard to the concern of this commenter and as already pointed out in this comment discussion, the reference in some provisions of section 112(b) of the AGOA to subheading 9802.00.80, HTSUS, means that in those cases fabric dyeing, printing and finishing processes, which are not assembly operations or (in most instances) operations incidental to assembly, must have taken place in the United States. Moreover, in regard to those other provisions of section 112(b) of the AGOA that refer to fabric “wholly formed” in the United States, there is nothing in the Act that precludes that U.S.-formed fabric from also being dyed, printed and/or finished in the United States.
The fact that the Breaux-Cardin rules of origin (section 334 of the Uruguay Round Agreements Act and § 102.21 of the CBP regulations) mandate that the spinning, knitting or weaving process is determinative of origin further supports the conclusion that printing or dyeing should not be viewed as relevant, much less essential, to the formation process.
Finishing, by definition, occurs to fabric after the fabric has been formed; after it has taken shape from weaving or knitting or other formation processes. A distinction between fabric formation and fabric finishing has existed in the realm of origin determinations for textile goods under the Customs laws and regulations for over 15 years, first by regulation (19 CFR 102.22) and then by statute (section 334 of the URAA, codified at 19 U.S.C. 3592). While CBP agrees with the commenter that the rules for determining the origin of textile goods offer support for the position that fabric formation and fabric finishing are distinct operations, as CBP has already noted above, the AGOA is a preferential trade program based on meeting the specified manufacturing process requirements set forth in the AGOA and is not a program based on origin.
In the provision within the Act of 2000 that clarified section 334 of the Uruguay Round Agreements Act, Congress explicitly confirmed the interpretation that dyeing, printing and finishing are in fact “fabric-making processes,” just as weaving and knitting are fabric-making processes, for purposes of determining the country in which fabric is made, regardless of how many such operations will determine the country of origin of fabric for different purposes in different specific statutes. CBP should follow this clarification in the AGOA definition text.
In this comment it is argued that Congress confirmed that dyeing, printing and finishing are “fabric-making processes.” However the provision referenced by the commenter does not say these processes are “fabric-making” but rather provides that they are origin conferring for certain fabrics. More specifically, section 334 of the URAA was amended by section 405 of the Act of 2000 so that it now provides in effect that dyeing and printing of certain fabrics, when accompanied by two or more other designated finishing operations, results in the fabric having its origin in the place where that processing occurred. CBP notes the amendment made by section 405 of the Act of 2000 addressed a specific dispute between the United States and the European Union concerning the effect of the URAA section 334 changes on United States obligations under a number of international agreements (
Processes such as dyeing, printing and finishing are treated in many statutes and regulations as fabric-making processes, that is, they are treated as the same type of processes as weaving and knitting because they are all processes in the “production” or “manufacture” of “fabric.” The regulatory provision on which the definition of “wholly formed” was based, that is, 19 CFR 102.21(b)(2), states that a “fabric-making process is any manufacturing operation that . . . results in a textile fabric.” United States laws and regulations include innumerable “textile fabrics” that are the “result” of the operations of dyeing, printing and finishing and could not have been the “result” only of the operations of weaving and knitting. There is no warrant for treating the fabric-production processes of dyeing, printing and finishing any differently from the co-equal fabric-production processes of weaving and knitting.
The commenter mischaracterizes the definition of a “fabric-making process” which appears in 19 CFR 102.21(b)(2). That regulation implements section 334 of the URAA which has been dealt with earlier in this comment discussion in the context of arguments for distinguishing between fabric formation and fabric finishing and for not including dyeing, printing and finishing operations within the scope of “wholly formed” as it relates to fabric.
The Textile Fiber Products Identification Act makes perfectly clear (1) that the process of finishing a fabric is a fabric-making or fabrication process and (2) that both unfinished fabric and finished fabric are “fabric components.”
CBP has frequently pointed out in its rulings, and the courts have held (
In a colloquy with Senator Coverdell during Senate floor consideration of the Act of 2000, Senator Grassley affirmed that the intention of the managers was to permit dyeing and finishing operations in the United States or in beneficiary countries. In that colloquy, Senator Coverdell asked: “I have one final question regarding the so-called 809 provisions of both the Africa and Caribbean Basin measures. Am I correct that it is the managers' intent that these provisions do not permit dying [sic] or finishing of the fabrics to be performed in countries other than the United States or the beneficiary countries?” Senator Grassley responded: “That is correct.”
CBP does not find the colloquy to be dispositive for purposes of interpreting the statute and drafting the regulations. In regard to “wholly formed” as it pertains to fabric, the responses above justify not including dyeing, printing, and finishing operations in the definition of “wholly formed” in the interim regulations, as further clarified in this final rule document.
The colloquy that took place on the floor of the Senate between Senators Grassley and Coverdell (reported at 146 Cong. Rec. at S3867, daily ed. May 11, 2000) regarding finishing operations in third countries is of essentially no value on the issue of whether Congress intended to permit dyeing, printing or finishing operations to take place in the beneficiary countries because the colloquy is ambiguous on this point, because the courts have held that the remarks of individual legislators made during a floor debate are not controlling in analyzing legislative history, and because there is some doubt as to whether the colloquy in fact took place prior to the enactment of the legislation.
CBP believes that the response to the immediately preceding comment adequately addresses this comment.
Based on the comments received on the definition of “wholly formed” as it pertains to fabrics and the analysis of those comments set forth above, CBP in this final rule document has modified the interim § 10.212 definition of “wholly formed fabrics” to clarify that fabric formation does not encompass dyeing, printing and finishing operations.
In addition, a new paragraph (b) has been added to § 10.213 (with paragraphs (b) and (c) of the interim regulation consequently re-designated as (c) and (d)) which in subparagraph (1) clarifies that while dyeing, printing, and finishing operations are not part of the fabric or component (for example, a knit-to-shape component that is made directly from yarn) formation process, those dyeing, printing, and finishing operations are only permissible if performed in the United States or in the AGOA beneficiary countries. New paragraph (b)(1) also includes a caveat that any dyeing, printing, and finishing operations performed in an AGOA beneficiary country must be incidental to assembly in the case of articles described in paragraphs (a)(1) and (a)(2) of § 10.213 which are subject to the rules that apply under subheading 9802.00.80, HTSUS.
Unlike the comments regarding the dyeing, printing, and finishing of fabric discussed above, which were sharply divided on the question of whether those processes fall within the concept of “wholly formed” as it pertains to fabric, the comments received in regard to the definition of “wholly formed” as it pertains to yarn uniformly supported the conclusion that dyeing and finishing operations are not part of the yarn formation process. Some of these commenters also suggested that the dyeing and finishing of yarns should be limited to the United States and AGOA beneficiary countries. A discussion of the specific points made by these commenters in support of those views is set forth below.
With regard to yarns (other than thread), seven commenters took the position that dyeing and finishing operations do not fall within the concept of “wholly formed” and that, consequently, a requirement that a yarn be “wholly formed in the United States” does not mean that any dyeing or finishing of the yarn must be restricted to the United States. One of these commenters argued that allowing dyeing and finishing operations to be performed on U.S. yarns in the AGOA beneficiary countries is consistent with Congressional intent, noting in this regard that this issue was addressed in a colloquy between Senator Coverdell and Senator Grassley during Senate floor consideration of the Trade and Development Act of 2000. In that colloquy, Senator Coverdell asked: “When the Act requires yarn to be
Based on the common meaning of the words “wholly” and “formed” as already discussed above in the comment discussion regarding wholly formed fabrics, CBP agrees with the commenters here that dyeing and finishing operations are not part of the yarn formation process. CBP also agrees, based on Congressional intent regarding the intended beneficiaries under the AGOA as noted above in the wholly formed fabric comment discussion, that the application of dyeing and finishing processes to yarn should be limited to the United States and AGOA beneficiary countries.
As to the suggestion that the “Breaux-Cardin” rules of origin (that is, the rules set forth in section 334 of the URAA as already mentioned in this comment discussion) support the conclusion that dyeing, bleaching and other similar finishing operations are not part of yarn formation, CBP has already pointed out in this comment discussion that the AGOA legislation is directed only to preferential treatment of certain goods that meet specified production standards and is not based upon country of origin principles. In addition, section 334, as amended by section 405 of the Act, does not define “wholly formed” in regard to fabric or yarn. In regard to fabric, section 334 describes fabric-making processes which CBP views as the same as fabric formation processes. However, in regard to yarn, section 334 merely addresses origin as being determined by the spinning of fibers or the extrusion and drawing of filaments.
While the spinning of fibers and the extrusion and drawing of filaments form yarns, many yarns are further processed with other yarns by plying or twisting to create specific types of yarns later used in forming fabric or in knitting to shape an apparel component or article. Thus, while some types of yarn are formed by spinning or by extrusion and drawing, other types of yarn are further processed before they are complete. Some yarns may be used without being combined with other yarns, such as a monofilament thread which may be used in hemming a garment. Most yarns, however, must be combined with other yarns to form a multifilament or multiple (folded or plied) yarn to impart the strength and yarn size necessary for use in the production of other textile products. For this reason, the interim rule defined “wholly formed” as it relates to yarn to include all the processes starting with the extrusion of filament or the spinning of fibers into yarn, or both, and ending with a yarn or plied yarn.
For instance, in the case of a cotton/polyester fabric which is woven using a 3-ply yarn consisting of two cotton yarns and one polyester filament yarn, the yarn would be “wholly formed” in the United States if all of the following occurred in the United States: Cotton fibers are spun into yarn to form the cotton yarns, the polyester filament is extruded, and the two cotton yarns and the polyester filament are plied to form the 3-ply yarn used in the production of the cotton/polyester fabric. Although the 3-ply yarn consists of three separate yarns, it is the 3-ply yarn which is the final, complete yarn used in the formation of the woven fabric.
CBP agrees with the commenters that wholly formed yarn has to undergo all the processes necessary for the formation of the final, complete yarn which is used in the production of a textile product, such as fabric or knit-to-shape components or articles, whether that final yarn is a monofilament or a plied yarn.
Two commenters noted that textured filament yarn is first extruded in an undrawn condition as partially oriented yarn (POY) which cannot be transformed into fabric but rather has no use other than to be drawn and textured in a sequential process on the same machine, with the resulting yarn being, for purposes of the AGOA, wholly formed and now ready to be transformed; therefore, to satisfy the definition of “wholly formed,” the texturing must be done only in the United States.
The process described by the commenters is known as “draw-texturing.” “Draw-texturing” is defined as a process “[i]n the manufacture of thermoplastic fibers, [consisting of] the simultaneous process of drawing to increase molecular orientation and imparting crimp to increase bulk.”
In the definition of “wholly formed” as it relates to yarn, CBP intended to encompass all steps in the production of a yarn or plied yarn up to the point at which it is fully formed or completely shaped as a yarn or plied yarn.
The commenters claim, and CBP agrees, that a partially oriented yarn may not function as a yarn in the manufacture of a textile product until it is further processed into a fully oriented yarn. Consequently, a partially oriented yarn cannot be considered “wholly formed” because it is not fully oriented. In order to be “wholly formed” a yarn must have reached the stage in its formation that nothing else (for example, drawing to fully orient the yarn or plying the yarn with other yarns) need be done to it to complete its
Two commenters mentioned section 112(b)(3) of the AGOA which refers to “originating” rather than “wholly formed” yarns. After noting that the reason for this distinction is unclear, they argued that, in order to secure the benefits envisioned in the Statement of Policy contained in the AGOA, “originating” should have the same meaning as “wholly formed,” thus assuring that the only beneficiaries are the United States and AGOA countries.
CBP disagrees with these commenters. In the Conference Report relating to the Act of 2000, at page 77, Congress made clear its intent in using the term “originating” in regard to yarn in section 112(b)(3) of the AGOA. In discussing the apparel articles which fall within the AGOA regional cap provision, the Conference Report included the following parenthetical explanation: “The country of origin of the yarn is to be determined by the rules of origin set forth in section 334 of the Uruguay Round Agreements Act.”
As indicated above in the comment discussion regarding wholly formed fabric, in T.D. 03–15, CBP replaced the original interim § 10.212 definition of “wholly formed” with two definitions, one relating to “wholly formed” fabrics and the other relating to “wholly formed” yarns. Based on the comments received relating to the definition of “wholly formed” as it relates to yarn and the analysis of those comments as set forth above, CBP has in this final rule document further modified the “wholly formed yarns” definition to:
1. Clarify that yarn formation does not encompass dyeing, printing and finishing operations.
Even though the above comment discussion regarding wholly formed yarns refers primarily only to dyeing and finishing operations, the definition also refers to printing because technical sources indicate that printing is relevant to yarns (
2. Reflect the CBP position with regard to Partially Oriented Yarns (POY).
In addition, the text of new paragraph (b) of § 10.213, mentioned above at the end of the wholly formed fabric comment discussion, includes a clarification that dyeing, printing and finishing operations are not part of the yarn formation process and are only permissible if performed in the United States or in the AGOA beneficiary countries.
Two commenters noted that, paramount among the requirements for preferential entry of apparel articles under section 112 of the AGOA, is the requirement that they be made from “fabrics wholly formed . . . in the United States.” These commenters also noted that the Act does not speak directly to the matter of which fabric(s) in an eligible article must satisfy the criteria set forth in sections 112(b)(1), (b)(2) and (b)(3). Further, they alleged that the practice of CBP is to apply criteria such as those in the AGOA only to that fabric (component) which determines the classification of the apparel article for tariff purposes, that is, the “shell” fabric. However, these two commenters asserted that language in section 103(4) of the AGOA-“negotiating reciprocal and mutually beneficial trade agreements”-as well as past practice clearly indicate that the mandated use of U.S. or sub-Saharan Africa-formed or, where permitted, third country fabric, should apply to all the fabric components of an eligible article, not just the shell fabric. The commenters argued in this regard that in the section 103 language Congress intended the benefits of the Act to redound to producers in the United States as well as Africa and that this can best be accomplished by requiring that all the fabric in an eligible article be formed in the United States (section 112(b)(1) and (b)(2)) or an eligible beneficiary country (section 112(b)(3)). These commenters further argued that in all previous and existing programs which administratively or legislatively granted unilateral trade privileges to eligible apparel articles—for example, the Special Access Program for Caribbean and Andean Pact countries, the Outward Processing Program for certain Eastern European countries, and the Special Regime for Mexico—the fabric origin requirements pertain to all fabric components, and they urged CBP to ensure that this is carried over into the AGOA.
CBP agrees with the commenters that under section 112(b)(1) and (b)(2) of the AGOA, the requirement that the fabric be formed in the United States means that all the fabric components of eligible articles must be formed in the United States, subject to the special rules set forth in section 112(e). For example, section 112(e)(1) and (e)(2) allow a certain quantity of “findings and trimmings” and “interlinings” to be of foreign origin. There would be no need for these special rules if Congress did not intend that all fabric components of these eligible articles must be formed in the United States. The Conference Report relating to the Act of 2000 at page 76 clearly confirms this Congressional intent.
Consistent with the above, CBP also agrees with the commenters that, under section 112(b)(3) of the AGOA, the requirement that the fabric be formed in a beneficiary sub-Saharan African country means that all the fabric components of eligible articles must be formed in a sub-Saharan African beneficiary country, subject again to the special rules set forth in section 112(e).
Two commenters stated that the requirements for wholly-formed fabric do not apply in the case of garment-dyed garments. They noted that fabrics used to produce garment-dyed garments are all scoured and many are bleached as well, and all subsequent dyeing and finishing are then done after the garment is cut and assembled. CBP must therefore make a distinction between fabrics wholly formed for garments which are not garment-dyed and fabrics for garments which are garment-dyed because commercial practice compels this. The essential determinant is that the fabric is in the state at which it is ready to be transformed into a new and different article of commerce.
CBP believes that the term “wholly formed” as it pertains to fabric must have a single, consistent meaning throughout the regulations. As CBP has explained in the comment discussion above regarding the definition of “wholly formed” as it pertains to fabric, dyeing, printing and other finishing operations do not fall within the scope of “wholly formed.” Thus, the distinction urged by these commenters does not have to be made. It should be noted, however, that garment dyeing after assembly is not permitted in the case of apparel articles covered by section 112(b)(1)(A) of the AGOA and § 10.213(a)(1) of the regulations because garment dyeing is not considered to be incidental to assembly for purposes of subheading 9802.00.80, HTSUS.
One commenter stated that although both the AGOA and the interim
CBP of course agrees with the views expressed by this commenter regarding the definition of “wholly formed” and the distinction between fabric and yarn formation and dyeing, printing and finishing operations. However, CBP does not share the view that since finishing operations are not part of formation, those operations may occur anywhere and the fabric and yarn would remain eligible for use in apparel receiving benefits under the AGOA. As already discussed above in the portions of this comment discussion regarding the definition of “wholly formed” as it pertains to fabric and yarn, Congress expressed its intent in the Conference Report relating to the Act of 2000 and in section 103 of the statute that the AGOA benefits are to accrue to sub-Saharan African countries and to U.S. producers. CBP believes that permitting dyeing, printing and finishing operations to be performed on fabric in countries other than the United States and AGOA beneficiary countries would be contrary to Congressional intent and therefore should not be allowed. As indicated above, 19 CFR 10.213(b)(1) has been modified in this final rule document to clarify this position.
One commenter stated that the regulations should clarify that wherever the word “yarn” is used, it means textile yarns of the sort classified in Chapters 50–59 of the HTSUS and does not include other non-textile products which may be knitted or woven into a textile product (for example, rubber thread of the sort classified in heading 4007 of the HTSUS). This commenter further suggested that paragraph (a)(3) of § 10.213 should be changed to clarify that “thread formed in the United States” refers only to textile sewing thread used to assemble cut parts of garments and does not include rubber thread used in fabric formation.
In § 10.213(a)(3) (section 112(b)(2) of the AGOA), the term “thread” is used in the context of requiring the use of “thread formed in the United States” in the assembly of apparel articles in one or more AGOA beneficiary countries. “Thread” is used in the same context in section 112(b)(7) of the AGOA (§ 10.213(a)(11) of the regulations), which was added by the Act of 2002. Based on the context in which the term “thread” is used in the statute, CBP believes that Congress was referring to sewing thread. Accordingly, CBP agrees with the suggestion of the commenter in this regard, and § 10.213(a)(3) and (a)(11) have been modified in this final rule document by inserting the word “sewing” into the text before the word “thread.”
CBP agrees with the commenter that “yarn” as used in the AGOA refers to textile yarn. However, CBP disagrees with the commenter's suggestion that “yarn” be defined as textile yarns classified in Chapters 50–59 of the HTSUS. In the comment discussion above regarding “wholly formed” as it relates to yarn, CBP set forth a definition of yarn which appears in two related textile dictionaries and which refers to “textile” materials. A similar approach is taken in other technical textile dictionaries. For example, “yarn” is defined in
For purposes of this discussion, CBP also notes definitions of “yarn” from non-technical sources. “Yarn” is defined, in relevant part, in
CBP has defined the phrase “textile or apparel product” in the context of the rules of origin for textile and apparel products set forth in § 102.21 of the CBP regulations (19 CFR 102.21) which implements § 334 of the URAA. CBP believes that defining “yarn” as suggested by the commenter would result in “yarn” in the AGOA context having a narrower meaning than “yarn” in the context of the rules of origin for textiles. CBP does not believe that Congress in drafting the AGOA intended to change the scope of “textile and apparel articles” as understood under § 334 or under the Agreement on Textiles and Clothing to which the United States is a signatory. In determining the scope of the term “yarn,” as well as the term “fabric,” CBP will rely upon the scope of “textile and apparel articles” as set forth in 19 CFR 102.21. Therefore, CBP sees no need to define “yarn,” or “fabric” for that matter, in these regulations.
With regard to thread, two commenters argued that Congress has made a clear distinction between “wholly formed” and “formed.” Therefore, although the thread does not have to be “wholly formed” in the United States, it nevertheless must be thread, that is, it must have undergone an extrusion or spinning process and subsequent doubling (plying) process necessary to give it the unique properties of thread. These commenters
CBP agrees with the above comment except for the statement that thread must be plied in order to have the unique properties of thread. As stated in the immediately preceding comment response, CBP believes Congress was referring to sewing thread in section 112(b)(2) and (b)(7) of the AGOA when it referred to “thread formed in the United States.” In order to be recognized and usable as sewing thread, thread must be in its final form, that is, generally plied with a “Z” twist. However, sewing thread is not always plied, nor does it always have a “Z” twist.
CBP believes that Congress in using the term “thread” in section 112(b)(2) and (b)(7) meant “sewing thread” in all its various commercially used forms. Sewing thread is a form of yarn and is made from yarn. Like yarn, sewing thread may be made in various ways. In the
While most sewing thread consists of yarns which have been plied, some may consist of a single monofilament. In order to avoid limiting the type of sewing thread formed in the United States which may be used in the assembly of textile apparel in the AGOA beneficiary countries for purposes of section 112(b)(2) and (b)(7) of the AGOA and § 10.213(a)(3) and (a)(11) of the regulations, respectively, CBP believes that “sewing thread” should be defined for AGOA purposes not on the basis of a type of construction but rather only with reference to the way it is used. Section 10.212 has been modified in this final rule document by the addition of a definition of “sewing thread” in paragraph (p) to reflect this position. CBP believes this definition will ensure that there are no undue restrictions on the options for apparel manufacturers as to the type of U.S. sewing thread they may use in the construction of their garments.
CBP agrees with the commenters that once sewing thread is “formed,” subsequent processing such as lubricating, bleaching or dyeing will not alter that formation. In addition, based on the CBP position set forth in the comment discussion regarding “wholly formed” fabrics, CBP also agrees with the commenters that processing of sewing thread after its formation may be done in the United States or in the AGOA beneficiary countries but not elsewhere.
Two commenters complained that the product descriptions in § 10.213 do not make adequately clear that garments knit-to-shape in the United States, or garments assembled with components knit-to-shape in the United States, are eligible for duty-free and quota-free treatment under the Act. However, as these concerns were addressed by the subsequent amendments made to the AGOA by section 3108(a) of the Act of 2002, no further response is required.
Two commenters stated that, as a basic principle, cutting should be allowed either in the United States or in the AGOA beneficiary countries or in both, and they suggested that CBP should clarify this point in the regulations. These commenters argued that the benefits under the AGOA should be accorded so long as the assembled goods came from components made from U.S. fabric made from U.S. yarn. One of these commenters further argued that Congress did not intend a narrow reading of the statute, that is, that cutting of portions of the garment in the United States
With respect to the question of whether, or to what extent, cutting of fabric may be performed in both the United States and a beneficiary country, CBP notes initially that the only specific interpretative reference to this issue in the interim regulations was in the definition of “cut in one or more beneficiary countries” in § 10.212. These words were defined there to mean that “all fabric components used in the assembly of the article were cut from fabric in one or more beneficiary countries.” The section-by-section discussion of the interim amendments in T.D. 00–67 stated that this definition “precludes any cutting operation performed in a country other than a beneficiary country in accordance with the clear language of the statute.”
CBP does not dispute the commenters' assertion that the AGOA was intended to accord preferential treatment to garments assembled in a beneficiary country from U.S.-formed fabric made from U.S.-formed yarn. However, in addition to requiring the use of U.S.-formed fabric and yarn, paragraphs (b)(1) and (b)(2) of section 112 of the AGOA also specify the location of the cutting of the fabric: The United States for paragraph (b)(1) and a beneficiary country for paragraph (b)(2). Thus, as a general matter, CBP cannot agree with the commenters that, under these provisions, whether cutting is performed entirely in the United States or in a beneficiary country, or both, is essentially irrelevant. CBP believes that the statutory language relating to the location of the cutting in each provision cannot be ignored. Regarding the reference to the October 18, 2000, letter, CBP submits that its post-enactment origin precludes it from being dispositive on any interpretative issue regarding the legislation.
However, CBP agrees that these statutory provisions permit certain cutting to be performed both in the United States and in one or more beneficiary countries. CBP believes that the cutting issue has been raised by the commenters primarily in regard to paragraphs (b)(1)(A), (b)(1)(B) and (b)(2) of section 112 of the AGOA (covered by § 10.213(a)(1), (a)(2) and (a)(3) of the regulations, respectively). CBP will address this issue as it relates to paragraph (b)(1) first.
Paragraph (b)(1) encompasses apparel articles assembled in one or more beneficiary countries from fabrics wholly formed and cut in the United States, from yarns wholly formed in the United States, that (1) are entered under subheading 9802.00.80, HTSUS, or (2) would have qualified for entry under
Concerning what, if any, additional cutting may be performed in a beneficiary country under this provision, CBP submits that this is dependent upon the extent to which cutting abroad is permitted under subheading 9802.00.80, HTSUS, because of the statutory reference to this subheading. CBP believes that articles for which preference is sought under paragraph (b)(1) are subject to the conditions and requirements that apply under subheading 9802.00.80 and its implementing regulations (19 CFR 10.11–10.26), except for the additional processing specifically permitted by paragraph (b)(1)(B). Under subheading 9802.00.80, only assembly operations and operations incidental to assembly may be performed abroad. Examples of operations incidental to assembly are set forth in 19 CFR 10.16 and include “trimming . . . or cutting off of small amounts of excess materials” and “cutting to length of . . . products exported in continuous length.” However, this regulation further sets forth “cutting of garment parts according to pattern from exported material” as an example of an operation that is not incidental to assembly.
Thus, it is the position of CBP that only cutting that is incidental to the assembly process abroad, within the meaning of subheading 9802.00.80, HTSUS, may be performed in a beneficiary country under paragraph (b)(1) of section 112.
Paragraph (b)(2) of Section 112 of the AGOA differs from paragraph (b)(1), in part, in that it refers to cutting of fabric “in one or more beneficiary sub-Saharan African countries” (rather than in the United States) and it contains no reference to subheading 9802.00.80, HTSUS. As indicated above, the definition of “cut in one or more beneficiary countries” in the interim regulations was intended to preclude any cutting of fabric in any country other than a beneficiary country. However, CBP has re-evaluated that intention in light of the fact that the definition of the phrase “assembled in one or more beneficiary countries” (appearing in paragraph (b)(2) of Section 112 of the AGOA and in the corresponding regulatory provision, § 10.213(a)(3)) set forth in § 10.212 of the interim regulations conflicts with the § 10.212 definition of “cut in one or more beneficiary countries.” This conflict arises from the fact that the definition of “assembled in one or more beneficiary countries” allows a prior partial assembly operation to be performed in the United States, which presupposes that the fabric components involved in that assembly operation were cut in the United States.
To resolve this apparent conflict, CBP in this final rule document has amended the definition of “cut in one or more beneficiary countries” in § 10.212 to expressly authorize the cutting of fabric components in the United States but only to the extent that those components are used in a prior partial assembly operation in the United States. CBP submits that this limitation on the extent of the cutting that may be performed in the United States under this provision is warranted by the fact that the provision mentions cutting only in reference to one or more beneficiary countries.
CBP also notes that, under paragraph (b)(2) of section 112, the cutting of bolts of fabric in the United States into fabric pieces of smaller dimensions would be acceptable since the requirement that the articles be produced from fabric would be fulfilled.
Finally, CBP notes that the commenters' concerns regarding cutting have been at least partially addressed by the addition of new paragraph (b)(7) to section 112 of the AGOA by section 3108(a) of the Act of 2002. This change was made to cover combinations of various production scenarios involving beneficiary countries and the United States described in other paragraphs in section 112 of the AGOA. Section 112(b)(7) specifies that the cutting of fabric is to be performed “in the United States and one or more beneficiary sub-Saharan African countries or former beneficiary sub-Saharan African countries.” (Paragraph (b)(7) of section 112 of the AGOA was subsequently amended by section 7(d) of the Act of 2004, to allow beneficiary countries that may in the future graduate from AGOA to still provide the qualifying components for assembly in beneficiary countries.)
Two commenters referred to the so-called “merino wool” sweater provision in the AGOA (section 112(b)(4)(B)) and in the regulatory texts (§ 10.213(a)(7)). They expressed disappointment that the interim regulatory text did not address and correct a legislative drafting error in the definition (description) of the goods in question that has the effect of creating a benefit for a product that does not exist. To fix this problem, the commenters recommended substitution of the word “greater” for “finer” in the regulatory text so that the text would refer to “wool measuring 18.5 microns in diameter or greater.”
Congress used the term “finer,” and CBP does not have the authority to vary from the statutory language by substituting the term “greater” as requested by the commenters. However, it appears that the concerns of the commenters have been addressed by an amendment to section 112(b)(4)(B) made by section 3108(a) of the Act of 2002. Paragraph (b)(4)(B) and the corresponding regulatory text, § 10.213(a)(7), now refer to “wool measuring 21.5 microns in diameter or finer.”
Four commenters provided comments or suggestions regarding the findings and trimmings rule set forth in section 112(e)(1) of the AGOA. One of these commenters simply endorsed the CBP interpretation in § 10.213(b)(2) that gives precedence to the findings and trimmings rule over the
The regulations should clarify, in § 10.213(b)(1)(i), that narrow elastic fabrics used for waistbands, leg closures, and similar applications are not considered “findings and trimmings” and must be formed in the United States if the garments are to receive preferential treatment.
The regulatory text in question (re-designated in this final rule document as § 10.213(c)(1)(i) as discussed above) states that elastic strips are findings and trimmings only if they are each less than 1 inch in width and are used in the production of brassieres. Accordingly, CBP believes that it is already sufficiently clear that narrow elastic fabrics used for waistbands, leg closures and similar applications are not considered findings and trimmings.
Furthermore, CITA has clearly stated that the foreign origin exception for elastic strips under the Special Access program was intended to be limited to narrow elastic fabrics for use as brassiere straps and not to include elastic fabrics such as those used in waistbands.
CBP disagrees with the commenter's statement that those narrow elastic fabrics must be made only in the United States. In some circumstances, the AGOA statutory and regulatory provisions expressly permit the use of fabric formed in one or more beneficiary countries or in any country in the case of lesser developed beneficiary countries.
The Act of 2004 amended section 112(d) of the AGOA (now section 112(e)) by adding a new special rule providing that an article otherwise eligible for preferential treatment under section 112 will not be ineligible for that treatment because it contains certain specified components, including “waistbands” and “straps containing elastic,” that do not meet the applicable production requirements set forth in section 112(b), regardless of the country of origin of the component. CBP in this final rule document has incorporated the above new rule in new § 10.213(c)(1)(v) of the regulations.
In addition to the named findings and trimmings mentioned in the statutory language, other examples of findings and trimmings should be added to the text in § 10.223(b)(1)(i) based on CBP rulings issued under the Special Access and Special Regime programs. These involve the following: Patches that symbolize a brand and add ornamentation (HQ 560726, HQ 560520); reinforcing tape (HQ 559961, HQ 560398); and slide fasteners, featherbone, belting, and braids (HQ 559738). In addition, trimmings similar in use to decorative lace, such as piping or decorative strips of fabric reinforcement at seams or raw edges, are appropriate to be included as “trimmings” for purposes of the statute because they are equivalent to decorative lace trimming while performing functions similar to reinforcing tape.
Although CBP agrees that the other items have been previously found to qualify as findings and trimmings under the Special Access program and subheading 9802.00.90, HTSUS, CBP has concluded that there is no need to list additional examples. The list of findings and trimmings is intended to be representative in nature and is not an exhaustive list. With respect to items that have not previously been ruled upon, CBP intends to deal with the items on a case-by-case basis through interpretive rulings.
Narrow elastic fabric should be considered the same as in the past in the Special Access program, that is, except for elastic strips of 1 inch width or less used in the manufacture of brassieres, narrow elastic fabric should be excluded from “findings and trimmings.”
CBP agrees with the comment and feels that the position is adequately set forth in the regulation. It should be noted that the statute and regulations refer to elastic strip “less than 1 inch in width” not “1 inch width or less.”
The various “knit-to-shape” exclusions were developed with wide fabric or “large tube” circular knit fabric in mind. Knitted or woven narrow elastic fabric was not intended to be part of this category and should not be part of any exclusion but rather should be treated in a similar manner as sewing thread and therefore must be made in the United States.
The commenter appears to be referring to narrow circular knit fabric and any other kind of narrow elastic fabric (knit or woven) used in the production of a garment. CBP would agree that those narrow elastic fabrics, if not less than 1 inch in width and used in the production of brassieres, are not subject to the findings and trimmings exception. However, for the reasons noted earlier in this comment discussion, CBP disagrees with the contention that those narrow elastic fabrics must be made only in the United States.
A commenter stated that the relevance of including the word “fibers” in the statutory language was unclear because the statute contains no requirements that “fibers” be formed in the United States or a beneficiary country and thus the inclusion of foreign fibers in yarns or fabrics does not affect the apparel's eligibility. This commenter argued that it would have been more appropriate for the statute to refer to “yarns or fabrics” in place of “fibers or yarns” and that the anomaly in the present statute substantially reduces the already minimal flexibility provided under the AGOA to use non-U.S.-formed inputs.
The commenter is correct that there is no requirement that “fibers” be formed in the United States or a beneficiary country and thus the reference to fibers in the statutory provision appears to be unnecessary. Although the regulatory language at § 10.213(c)(1)(iv), consistent with the statute at 19 U.S.C. 3721(e)(2), mentions fibers, the inclusion of foreign fibers in yarns or fabrics will not affect the eligibility of an apparel article.
One commenter urged CBP to include in the final regulations language that requires elastic rubber tape to be classified similarly to narrow web elastic and spandex so as to receive the same protection and treatment under the AGOA, that is, that it must be wholly formed in the United States. In support of this position, the commenter stated that elastic rubber tape is distinguished from rubber thread by its width (greater than 1/16 of an inch and no greater than 6 inches) and is distinguished from rubber ribbon by consisting of a single “end” as opposed to multiple ends in the case of ribbon. In addition, this commenter asserted that flat rubber tape competes with, and is a substitute for, woven or knit elastic web and logically should be subject to the same U.S.-formed requirement as elastic web.
As the commenter noted, rubber tape is distinguished from both narrow web elastic and spandex by virtue of its construction and composition. Both narrow web elastic and spandex are textile products. Spandex is a well known man-made fiber textile product. Narrow web elastic is a fabric produced by combining synthetic or natural rubber thread with textile fiber. Rubber tape and elastic rubber tape as referenced in the comments are the same product which is not a textile product because it is made of rubber. The Conference Report relating to the Act of 2000 states at page 76 that “the requirement that products must be assembled from fabric formed in the United States applies to all textile components of the assembled products, including linings and pocketing, subject to the exceptions that currently apply under the 'Special Access Program.'” Thus the Conference Report reflects a legislative intent to promote the use of U.S. textile fabric and yarn. There is no indication in the statute or legislative history of a requirement that rubber tape, a non-textile component, be of U.S. origin. Accordingly, notwithstanding the potential economic impact on U.S. rubber tape producers, CBP does not find a basis in the statute or in its legislative history to require rubber tape to be wholly formed in the United States.
Four commenters were of the opinion that the regulations should make it clear that certain processes (such as embroidery, stonewashing, enzyme washing, acid washing, oven-baking, perma-pressing, garment dyeing, screen printing, or similar processes) do not disqualify a garment for preferential treatment when all other criteria for eligibility are met. In support of this position, it was argued that the AGOA is silent on the permissibility of post-assembly operations for merchandise entered under section 112(b)(2) of the AGOA only for the reason that it is understood that those post-assembly operations are permitted because the merchandise in question will not be entered under HTSUS heading 9802. Moreover, there is no proscription against post-assembly processing anywhere in the HTSUS or in the CBP regulations except for heading 9802. Finally, the commenters argued that a significant portion of garments produced in the sub-Saharan region under the AGOA will undergo post-assembly processing, that Congress did not intend them to be denied preferential treatment because no specific reference appeared in the AGOA, and that Congress in fact did intend that those processes be performed in beneficiary countries.
CBP fully agrees with these commenters that apparel articles that satisfy the criteria for eligibility under section 112(b)(2) of the Act should not be disqualified from receiving preferential treatment because they are subjected to one or more post-assembly processes, such as embroidery, stonewashing, and garment dyeing, in a beneficiary country. Consistent with the conclusion reached in regard to whether dyeing and finishing of fabric, yarn and thread may be performed other than in a beneficiary country or in the United States, CBP believes that post-assembly finishing processes may only be performed in beneficiary countries or in the United States.
Accordingly, CBP in this final rule document has included in new paragraph (b) of § 10.213 a subparagraph (2) to clarify that articles otherwise entitled to preferential treatment under the AGOA will not be disqualified from receiving that treatment because they undergo post-assembly operations (such as those mentioned in section 112(b)(1)(B) of the Act) in the United States or in one or more beneficiary countries. As in the case of the dyeing, printing and finishing operations covered by new paragraph (b)(1), under this new paragraph (b)(2), those other operations may only be performed in the United States or in a beneficiary country. New paragraph (b)(2) also includes a caveat that in the case of articles covered by paragraph (a)(1) of § 10.213, a post-assembly operation performed in a beneficiary country must be incidental to the assembly process.
Four commenters submitted observations on the interpretation and application of the so-called short supply provisions (section 112(b)(5) of the AGOA and § 10.213(a)(8) and (a)(9) of the interim regulations).
One commenter urged CBP to clarify what is considered a qualifying product under the § 10.213(a)(8) short supply provision, to ensure that it coincides with the NAFTA short supply rules as was intended by Congress. This commenter argued that, under the NAFTA, a garment qualifies for short supply treatment if the fabric that provides its essential character and determines its classification is one that has been identified as being in short supply. The fact that linings or other items are not made in the United States or a beneficiary country is not relevant, and that should be clear from the regulations.
CBP notes initially that the Act of 2004 amended the short supply provision in section 112(b)(5) of the AGOA by removing the words “from fabric or yarn that is not formed in the United States or a beneficiary sub-Saharan African country.” As amended to reflect this change, § 10.213(a)(8) has two parts: First, the apparel article must be both cut (or knit-to-shape) and sewn or otherwise assembled in one or more beneficiary countries and, second, the fabric or yarn of which the article is constructed must have been determined to be in short supply. There appears to be no issue regarding the first part. On the second part, there is no question raised regarding the use of the predetermined short supply fabrics and yarns but rather only on what requirements, if any, the remaining fabrics or yarns in the apparel article must meet. CBP believes that the last portion of the provision clearly states the intent and thus provides an answer to that question. That portion of the text provides that an apparel article constructed of yarns or fabrics that were determined to be in short supply may receive preferential treatment under the AGOA if those apparel articles would be eligible for preferential treatment under the rules of origin in Annex 401 of the NAFTA. In the absence of a qualifier to this language, CBP believes it is clear that the drafters intended that this provision use the same rules as those used in the NAFTA. That is, an apparel article would qualify for preferential treatment if the article is made of a short supply fabric or yarn that determines its classification.
As to the commenter's concern regarding linings not made in the United States or a beneficiary country, CBP believes that the regulation as drafted is clear that the rules of origin in Annex 401 of the NAFTA apply. Therefore, if under those rules for the apparel article at issue the origin of the lining is of no consequence, then the commenter is correct, the fact that the lining is not made in the United States or a beneficiary country is not relevant. However, if the lining material is relevant to the rule applicable to the apparel article at issue, then the origin of the lining material may be relevant. Such determinations must be made on a case-by-case basis and are best addressed through the rulings process.
A commenter took the view that the short supply regulatory provisions (§ 10.213(a)(8) and (a)(9)) do not clearly state the requirement under the statute that
1. The AGOA mandates the use of fabrics wholly formed in the United States for all fabric components except for specific fabrics that are not available in the United States.
2. An interpretation of the statute allowing non-U.S. fabric for all fabric components in the case where the outer shell alone is of a fabric that cannot be supplied in commercial quantities would be an inappropriate imposition on the AGOA program.
3. Whereas the NAFTA was a negotiated agreement among nations in which concessions regarding the “short supply” list made sense, the AGOA program is a unilateral gift of the United States to the nations of sub-Saharan Africa and ought to be construed to require the use of U.S. fabrics in all cases except for the specific fabric which cannot be supplied in commercial quantities.
CBP does not agree with this commenter that all yarn and fabric components of an apparel article other than those that determine the classification must be wholly formed in the United States. The text dealing with short supply or non-availability of fabric
A commenter referred to trade advisory TBT–00–023 entitled “Implementation Information for the CBTPA for Textile and Apparel Products” issued by CBP Headquarters on October 20, 2000, which included, among other things, a list of fabrics covered by the Caribbean Basin Trade Partnership Act short supply provisions. According to the commenter, the list in TBT–00–023, which would apply equally for purposes of the AGOA short supply provisions, was not complete because it omitted some products (for example, visible lining fabrics woven from foreign yarns as specified in NAFTA rule 1 for Chapters 61 and 62 within HTSUS General Note 12(t), and all yarns and fabrics covered by HTSUS headings other than those specifically excluded in the specific rules of origin) that would not be precluded from receiving NAFTA treatment under the NAFTA rules even though they do not qualify under the regular “yarn forward” concept. The commenter argued that all yarns and fabrics that allow apparel traded between NAFTA parties to qualify for NAFTA preference (that is, that allow apparel to meet the NAFTA rules of origin under Annex 401) should be considered as eligible under the AGOA preference.
TBT stands for “Textile Book Transmittal.” Textile Book Transmittals provide textile information to the trade community from CBP and are issued by the Textiles and Trade Agreements Division. TBTs may be found on the CBP Web site at
CBP agrees that the list included in TBT–00–023 was not complete. CBP has since issued further clarifications that include all of the short supply fabrics and yarns that are covered by the two short supply provisions set forth in section 112(b)(5)(A) and (B) of the AGOA (§ 10.213(a)(8) and (a)(9) of the regulations, respectively). Those issuances are TBT–01–004 dated September 18, 2001, TBT–04–009 dated April 21, 2004, TBT–04–019 dated June 28, 2004, and TBT–04–021 dated July 1, 2004. However, the first of those issuances, which relates to the § 10.213(a)(8) short supply provision, does not list the visible lining fabrics mentioned by this commenter because those fabrics are not treated as short supply fabrics under the NAFTA.
CBP has already addressed above the commenter's concern that CBP ensure that all interested parties are made aware that the rules for the short supply provisions will be interpreted in the same way for both the NAFTA and the AGOA.
One commenter noted that draft regulations implementing the short supply program for fabrics and yarn have not yet been issued and indicated that it had sent detailed suggestions to the Office of the U.S. Trade Representative on how the regulations should be drafted. The commenter suggested that further delay is unwarranted because short supply requests have already been submitted.
The commenter refers to a matter that falls within the jurisdictional authority of agencies other than CBP and therefore is not an appropriate subject for these regulations. CBP further notes in this regard that on March 6, 2001, the Committee for the Implementation of Textile Agreements (CITA) published in the
One commenter noted that § 10.213(a)(1) refers to articles “entered” under HTSUS subheading 9802.00.80. The commenter expressed concern that the use of this term suggests that post-entry claims are not allowed and therefore, to solve this problem, suggested replacing “entered” by “classified.”
The use of the word “entered” reflects the wording of the underlying statute and also is appropriate from a technical and practical standpoint because it is the entry process that brings an AGOA import transaction under the jurisdiction of a CBP office (the suggested word “classified” would have no relevance outside an entry context). With regard to the specific concern expressed by this commenter, there was no intention on the part of CBP, by using the word “entered” in this context, to restrict the ability of an importer to submit post-entry information to CBP prior to the date on which liquidation of the entry in question becomes final.
Four commenters submitted observations on one or more aspects of the Certificate of Origin as provided for in § 10.214 and referred to in §§ 10.215 and 10.216. To the extent that comments received regarding the Certificate of Origin set forth in T.D. 00–67 are still relevant to the subsequent Certificate of Origin set forth in T.D. 03–15, CBP will respond.
One commenter complained that the Certificate of Origin is unnecessarily complicated and thus presents an obstacle to achieving the goals of the AGOA. The commenter questioned whether the identification of options for benefits is necessary given that the Certificate is not required by the Government but rather is part of the importer's record keeping. This commenter further questioned whether in fact the Certificate of Origin is even necessary since the importer is accountable for records that establish eligibility for benefits.
Section 113(b)(1)(A) of the AGOA requires importers claiming preferential treatment under section 112 of the AGOA to comply with customs procedures similar in all material respects to the requirements of Article 502(1) of the NAFTA and requires the Secretary of the Treasury to promulgate regulations to that end. Article 502(1) of the NAFTA covers procedures regarding the use of a Certificate of Origin. In view of the clear mandate in the AGOA to apply the NAFTA Certificate of Origin approach, CBP has no authority to vary from that approach by dispensing with the Certificate of Origin requirement in these regulations.
As regards the commenter's assertions that the identification of options for benefits is not necessary and that the Certificate of Origin is not required by the Government, CBP disagrees with both points. The identification of the specific basis for claiming preferential treatment is like the approach under the NAFTA whereby the preparer of the Certificate of Origin identifies the specific rule of origin standard upon which the claim for NAFTA duty treatment is based. Further, although the Certificate of Origin is not provided for in the regulations as a condition of entry, similar to the practice under the NAFTA, it not only must be in the
A commenter questioned the propriety of using a NAFTA-type Certificate of Origin, suggesting in this regard that in some respects the Certificate of Origin should be more like ITA Form 370P. The commenter noted in this regard that because the 807A+ and 809+ programs in most instances, including the selection of the fabric used, are controlled by the U.S. importer, it makes little sense to ask an African producer of apparel to attest to the accuracy of the identity of the manufacturer of U.S. yarn or thread. Therefore, this commenter recommended that § 10.214(a) be revised to permit the United States importer to sign the Certificate on the same basis on which the producer or exporter may sign it.
As indicated in the previous comment response, CBP has no latitude to vary from the Certificate of Origin approach. As regards who may sign the Certificate of Origin, the interim regulations provide that the exporter or the exporter's authorized agent may sign the Certificate. Section 113(b)(1)(B) of the AGOA makes each beneficiary country responsible for implementing and following procedures and requirements similar in all material respects to those under Chapter 5 of the NAFTA. As Chapter 5 of the NAFTA does not authorize the preparation of the Certificate of Origin by the importer, CBP has no authority to provide in these regulations for the preparation and signature of the AGOA textile Certificate of Origin by the U.S. importer.
However, as discussed later in this document under “Additional Changes to the Regulations,” CBP has determined that the Certificate may be prepared and signed by the producer or exporter or by the producer's or exporter's authorized agent having knowledge of the relevant facts.
Three commenters objected, principally on business confidentiality grounds, to the inclusion of specific information regarding fabric, yarn and thread producers in blocks 6–8 on the Certificate of Origin. One of these commenters suggested that, as regards yarn producer information, the Certificate of Origin should have provision for stating that the information may be obtained from the fabric producer when the fabric producer provides a statement to the garment producer, exporter or importer that this information will be provided directly to CBP upon request. The other two commenters suggested that, in lieu of including the specific information in blocks 6–8, the regulations should allow the inclusion of words such as “available to CBP upon request.” One of them pointed out that this would be similar to the approach taken regarding producer information on the NAFTA Certificate of Origin and in the instructions for block 2 in § 10.214(c)(3).
CBP notes that it is incumbent upon the importer to know the facts of the transaction. If the U.S. importer wishes to make an AGOA claim, it is important that the origin of the raw materials used in the production of the garment be known in order to assess whether the garment qualifies. While for CBP import purposes it is the importer's responsibility to have the necessary information and documentation to justify any claim for preferential treatment, it is the exporter's or producer's responsibility under the AGOA to accurately complete and sign the Certificate of Origin.
When CBP requests the Certificate of Origin, CBP wants, among other things, the name of the fabric and yarn supplier that makes this merchandise eligible for AGOA benefits. CBP is given the responsibility to enforce and administer this program. In order to ensure that importers are properly claiming benefits under the AGOA, it is essential that information be provided showing the names and addresses of the parties providing the raw materials.
The United States importer does not need to present the Certificate of Origin until requested to do so by CBP. The requirement that fabric, yarn, and/or thread producers be identified in blocks 6–8 of the AGOA Certificate of Origin is based on the requirement in most AGOA preference provisions that those items must be produced in the United States and/or in one or more beneficiary countries. These requirements are specifically provided for in the AGOA which differ in this regard from the approach taken in the NAFTA. Neither the NAFTA nor its implementing legislation discusses specific intermediate processes such as these, nor do they address producer requirements specifically. For these reasons, the producers described in blocks 6–8 must be identified on the AGOA Certificate of Origin, which cannot be completed merely by including wording such as “Available to CBP upon request.”
A commenter recommended that the instructions for completing the Certificate of Origin make clear that the producer or exporter may state “not applicable” where the information sought is not relevant for the particular preference group. This commenter stated, as an example, that blocks 6–8 are not relevant for a producer or exporter of apparel in preference group “E.”
As in the case of any form designed to cover a variety of factual situations, it was never intended that all blocks be completed on the Certificate of Origin set forth in § 10.214. In fact, there should never be a case where all the blocks will be completed. For example, as the commenter pointed out, blocks 6–8 are not relevant to articles covered by preference group “E” (nor are blocks 9 and 10 relevant in that case). Similarly, in the case of preference group “H,” blocks 6–9 do not need to be completed. If a block is not relevant to the article covered by the Certificate of Origin, the exporter can either leave the block blank or insert the words “not applicable” or the symbol “N/A.” CBP does not believe that it is necessary to modify the instructions for completing the Certificate of Origin to cover something that is implicit in its design and use. What is essential is to ensure that all information relevant to the article under consideration is included on the Certificate of Origin, and that is what the instructions are intended to do.
One commenter noted that § 10.214(a) provides both that an exporter must prepare the Certificate of Origin and that, where the exporter is not the producer, the exporter may complete and sign the Certificate based upon a Certificate voluntarily provided to the exporter by the producer. In the latter case, the commenter questioned which Certificate is considered the “original” for purposes of § 10.215(a). The commenter suggested in this case that the Certificate signed by the exporter will be considered the original and that this should be clarified in the regulations.
The basic customs statutory record keeping requirements which are contained in sections 508 and 509 of the Tariff Act of 1930, as amended (19 U.S.C. 1508 and 1509), and the regulations implementing those statutory provisions which are set forth in Part 163 of the CBP regulations (19 CFR Part 163) are applicable to AGOA transactions in the same way that they apply to any statutory import program administered by CBP. For this reason a general statement regarding the applicability of the Part 163 provisions
A commenter noted that whereas § 10.216(b)(2) provides that the exporter or his authorized agent must have signed the Certificate, § 10.214(a) makes no reference to an authorized agent. This commenter suggested that if an authorized agent may sign the Certificate, this should also be noted in § 10.214(a).
CBP agrees that § 10.214(a) should clarify who may prepare and sign the Certificate of Origin. As previously indicated in this comment discussion, CBP has determined that, in addition to the exporter or the exporter's authorized agent, the producer or the producer's authorized agent may prepare and sign the Certificate. Therefore, §§ 10.214(a), 10.214(c)(13), and 10.216(b)(2) have been changed to reflect this modification as to who may sign the Certificate. It should be noted that T.D. 03–15 modified the instructions for preparing the Certificate in § 10.214(c) by adding a new paragraph (c)(13) regarding who may sign the Certificate.
Two commenters noted that the preference groups listed on the Certificate of Origin as set forth in § 10.214(b) are identified by letters whereas the paragraphs setting forth the groups of eligible articles under § 10.213(a) are identified by numbers. These commenters expressed concern that this inconsistency will lead to confusion and errors in filling out the Certificate, and, therefore, they requested that the same type of identifier be used in each context. One of the commenters specifically suggested in this regard that preference group “A” should be indicated as “(1)” on the Certificate to correlate with § 10.213(a)(1), preference group “B” should be indicated as “(2)” on the Certificate to correlate with § 10.213(a)(2), and so forth.
In T.D. 03–15, CBP adjusted the Certificate of Origin form to coordinate the relevant provision with the applicable preference and visa group.
With reference to the requirement in § 10.216(b)(3) that the importer provide upon request an English translation of a Certificate not prepared in English, a commenter recommended that the provision be revised to require that the Certificate be completed in English or in both English and the language of the exporting country, so that the importer would be able to more readily respond with an English version when a copy of the Certificate is requested by CBP. This commenter suggested that although the practice under NAFTA has been for companies to prepare both an English version and a native language version, having this as a regulation would ensure the ready availability of translations.
CBP does not believe that the regulatory text should be changed as suggested by this commenter. CBP notes in this regard that so long as the regulatory standard for an English language Certificate or translation is met, whatever additional procedure the exporter and U.S. importer may choose to employ for their convenience in meeting that requirement is not appropriate for regulatory treatment.
Four commenters made observations on the maintenance of records provision in § 10.216(a) and on the amendment to the (a)(1)(A) list contained in the Appendix to Part 163.
Two commenters objected to application of the NAFTA 5-year record retention period, noting that the AGOA specifically mentions a 2-year period. One of these commenters, after noting that the AGOA regulations only need to be similar, rather than identical, in all material respects to the requirements of Article 502(1) of the NAFTA, argued that the record keeping requirements should be designed to meet the intent of Congress while placing the smallest possible administrative burden on producers, exporters, importers and CBP. Moreover, considering the requirements under the NAFTA, this commenter argued that only certain records were contemplated in the 5-year retention requirements and therefore suggested that CBP should review the specific records required under the NAFTA and stipulate exactly what must be retained to satisfy the requirements of the AGOA. This commenter suggested that the spinner's certifications of materials origin may be considered representative of the type of records that should be retained for 5 years, whereas manufacturing records should not be required beyond the statutory 2-year period.
CBP first notes that the only reference to a 2-year record retention period in the AGOA is found in section 113(a)(1)(E) which concerns the obligation of each beneficiary sub-Saharan African country to require its producers and exporters to maintain production and export records. That exporting country context is distinct from, and therefore is not an appropriate subject for, these AGOA implementing regulations which concern U.S. import requirements. CBP further notes that Article 502(1) of the NAFTA does not mention a record retention period (that subject is addressed in Article 505 of the NAFTA which is not specifically referred to in the AGOA). Therefore, it is not the NAFTA standard that controls record retention in the United States under the AGOA. Rather, as already pointed out above, the provisions of 19 U.S.C. 1508 and 1509 and Part 163 of the CBP regulations set forth the standards for record retention in an AGOA context, including the length of time that a record must be retained. CBP believes that those statutory and regulatory provisions strike an appropriate balance, consistent with Congressional intent, between the law enforcement needs of CBP and the interest of the importing community in having the smallest possible record keeping burden.
With regard to the amendment to the (a)(1)(A) list contained in the Appendix to Part 163, two commenters objected to the inclusion of the words “and supporting records.” These commenters noted that the (a)(1)(A) list is defined as covering documents which are “required by law or regulation for the entry of the merchandise . . . ” (19 U.S.C. 1509(a)(1)(A)). One of these commenters suggested that in this circumstance supporting documents might include production records such as cutting or sewing tickets and argued that these may not be construed as documents required for entry and that there is nothing in the interim regulation to suggest that this is the case. The other commenter mentioned certain supporting documents referred to in § 10.217(a)(2) (that is, production records, information relating to the place of production, the number and identification of the types of machinery used in production, and the number of workers employed in production) and similarly stated that these records are
CBP has reviewed this issue in light of the points made by these commenters and has concluded that the commenters are correct. Accordingly, the amendment to the (a)(1)(A) list in the Appendix to Part 163 has been modified in this final rule document by removing the words “and supporting records.”
It should be noted, however, that although records to support a claim for preferential treatment (other than the Certificate of Origin) are not required for the entry of the merchandise in question, they nevertheless may be records required to be maintained and made available to CBP.
With reference to § 10.213(a)(1), which covers apparel articles assembled from fabrics wholly formed and cut in the United States, one commenter stated that the AGOA implementing regulations should include a definition of the expression “wholly formed and cut in the United States” that confirms that cutting fabrics to length outside the United States, incidental to the assembly process in an AGOA beneficiary country, does not adversely affect eligibility under the program. The commenter noted in this regard that the expression “wholly formed and cut in the United States” has been present in HTSUS subheading 9802.00.90, that CBP rulings (for example, HQ 559856 and HQ 561069) have confirmed that the cutting-to-length of fabric components is an operation incidental to the assembly operation and may take place in Mexico under the statutory language and that those rulings are in accord with § 10.16 of the CBP regulations which has been interpreted by CBP in numerous administrative rulings in the context of HTSUS subheading 9802.00.80 that establish that cutting-to-length is an operation incidental to the assembly process while the cutting of garment parts according to pattern from exported material is an operation not incidental to assembly.
The issue of the extent to which cutting of fabric may be performed in a beneficiary country with respect to articles covered by paragraph (b)(1) of section 112 of the AGOA (§ 10.223(a)(1) and (a)(2) of the regulations) has already been addressed in the CBP responses to the comments regarding cutting in the United States and beneficiary countries. Based upon the statutory reference to subheading 9802.00.80, HTSUS, in paragraph (b)(1) of section 112, CBP concluded that additional cutting operations may be performed in a beneficiary country under that statutory provision only to the extent that the cutting operations are considered “incidental” to the assembly process abroad. CBP also noted in this regard that the regulations implementing subheading 9802.00.80 specify that examples of operations considered “incidental” to the assembly process include “cutting to length . . . of products exported in continuous lengths” (
Therefore, CBP agrees with the commenter that cutting fabric components to length in a beneficiary country will not adversely affect eligibility of products covered by paragraph (b)(1) of the statute and § 10.213(a)(1) and (2) of the regulations. However, CBP does not agree that a clarifying amendment to the regulations is necessary in this regard in view of the already existing regulations implementing subheading 9802.00.80, HTSUS, which include specific examples of operations which are and are not “incidental” to assembly.
A commenter referred to the following changes made to the HTSUS by Presidential Proclamation 7350: modification of subheading 9802.00.80 to include an exception reference for “goods imported under provisions of subchapter XIX;” inclusion of the words “[f]ree, for products described in U.S. note 7 to this subchapter” in the special rates of duty column for subheading 9802.00.80; and inclusion of a new U.S. Note 7 to Subchapter II to Chapter 98 which states, among other things, that articles otherwise eligible to enter under subheading 9802.00.80, and which satisfy the conditions set forth in U.S. Note 3 to Subchapter XIX of Chapter 98, shall not be ineligible to enter under subheading 9802.00.80. This commenter, after suggesting that the latter change recognized that an overlap exists between subheading 9802.00.80 and the Subchapter XIX provisions, stated that (1) the language of subheadings 9802.00.80 and 9802.00.90 provides for eligibility where the fabric components
As the commenter correctly notes, CBP has held in prior rulings with respect to subheading 9802.00.90, HTSUS, that the fact that every fabric component of a textile or apparel article does not satisfy one or more of the three conditions set forth in that provision (that is, “(a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape or otherwise, and (c) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process”) will not preclude the article from receiving duty-free treatment, provided other fabric components in the article satisfy those three conditions. (
CBP does not agree with the commenter's contention that under the AGOA (specifically, the provision which refers to articles entered under subheading 9802.00.80, HTSUS, that is, section 112(b)(1)(A) of the statute which
CBP notes that section 112(b)(1)(B) of the AGOA (which is reflected in § 10.213(a)(2) of the regulations) specifically permits certain additional processing (for example, stonewashing and garment dyeing) as an exception to the third of the three conditions under subheading 9802.00.80, HTSUS. Therefore, in the case of articles covered by section 112(b)(1)(B) and § 10.213(a)(2), all of the fabric components may be subjected to one or more of those additional processes.
CBP also does not agree that the regulations should be changed to indicate when processing would require classification in subheading 9819.11.03, HTSUS, (§ 10.213(a)(2)) rather than in subheading 9802.00.80, HTSUS, (§ 10.213(a)(1)). CBP believes that sufficient guidance is available through the specific processing exemplars in subheading 9819.11.03, HTSUS, and § 10.213(a)(2) and in the regulations interpreting subheading 9802.00.80, HTSUS, (19 CFR 10.11–10.26) and in the various administrative rulings and judicial decisions regarding what processes do or do not constitute operations incidental to assembly.
A commenter expressed agreement with the change to the § 10.212 definition of “assembled in one or more beneficiary countries” made in the correction document published in the
CBP in this final rule document has replaced the definition of “assembled in one or beneficiary countries” with “sewn or otherwise assembled in one or more beneficiary countries” in § 10.212(q) as explained below under “Additional Changes to the Regulations.” This change in language does not change the definition which, as noted by the commenter, includes the addition of decorative embellishments, buttons, zippers or similar components where the additions qualify as assemblies.
Three commenters suggested that either the categories of eligible products in § 10.213(a)(1) and (a)(2) or the corresponding preference groups “A” and “B” on the Certificate of Origin in § 10.214(b), or both, should be combined into one because the statute does not require this distinction and because fewer categories or groups will present fewer opportunities for error and misunderstanding. These commenters suggested in this regard that there is no reason for distinguishing between apparel that is merely assembled and apparel that is subjected to additional finishing operations. One of these commenters further noted that these products are all “807A+” type products (that is, products assembled in the region from U.S.-formed-and-cut parts from U.S.-formed yarn). This commenter suggested that since these AGOA provisions are intended to track the benefits provided under the NAFTA Special Regime (which is covered by one HTSUS provision, that is, subheading 9802.00.90), there is no reason why a single provision cannot be provided for these AGOA products. One of these commenters also stated that the two short supply provisions in § 10.213(a) (that is, subparagraphs (8) and (9)) should be consolidated into one provision.
With the exception of preference groups “3–C” and “8–H” on the Certificate of Origin (which consolidate similar provisions), the regulatory text in § 10.213(a) and the preference groups listed on the Certificate of Origin in § 10.214(b) reflect the individual product descriptions or groupings that are contained both under section 112(b) of the Act and in the subheadings of Subchapter XIX within Chapter 98 of the HTSUS. CBP strongly believes that it is essential to have a separate regulatory provision for each statutory product category or group so that appropriate distinctions among the different categories or groups may be maintained for legal, operational and statistical purposes. Accordingly, CBP does not agree with any of the suggestions for consolidation of these categories or groups.
A commenter stated the belief that CBP's interpretation of the AGOA “is unnecessarily restrictive and at odds with the purpose of the legislation—to expand trade with countries in sub-Saharan Africa. . . . While economic conditions and infrastructure deficiencies are part of the reason, the narrow views adopted by Customs [now CBP] are a very significant contributor to this circumstance.”
The interpretations adopted by CBP with regard to the AGOA must be consistent with the language of the statute. It is CBP's desire and obligation to carry out the expressed intent of Congress as reflected by the language of the statute.
A commenter noted that “[c]hanges to existing interim regulations for CBTPA and AGOA that address the knit-to-shape and hybrid cutting issues will have a positive and immediate impact on U.S. textile suppliers and companies in the region.”
No response necessary.
Two commenters recommended amendments of the definition of “wholly formed fabrics.”
One commenter objected to the definition of “wholly formed fabrics” stating that it is beyond what is appropriate. The commenter believes the definition includes yarn formation and requires processing to begin with polymers and fiber formation. The commenter argues that the definition is inconsistent with the definition of “wholly formed yarn” and suggests the definition be changed to simply state that “fabrics wholly formed means that the fabric has been entirely knit or woven within the United States or a beneficiary country.”
The commenter has misinterpreted the definition of “wholly formed fabric.” The definition is not drafted to
One commenter agreed with the inclusion of the phrase “one or more beneficiary countries” in the definition of “wholly formed fabrics” to fully reflect the circumstances where the term “wholly formed fabrics” is used, but the commenter believes that the addition of the term “as appropriate” after “beneficiary countries” would provide clarification.
CBP disagrees with the commenter's suggestion to add “as appropriate” to the end of the definition of “wholly formed fabrics.” We do not believe it is necessary, nor would it add the clarification suggested by the commenter.
While the commenter agrees with the definition of “wholly formed yarn” in the ATPDEA and believes CBP “correctly included draw-texturing in the definition of `wholly formed' filament yarns,” the commenter believes that “[o]mitting this clarification from the CBTPA and AGOA regulations is inconsistent and will lead to confusion down the road.” The commenter strongly urges the same definition be reflected in the CBTPA and AGOA regulations.
As indicated above in the discussion of comments relating to wholly formed yarns in response to T.D. 00–67, CBP has in this final rule document revised the definition of “wholly formed yarns” to clarify that the process of draw-texturing falls within the scope of “wholly formed” as it relates to yarn. CBP agrees with the commenter that the definition of “wholly formed yarns” should be changed to reflect the same definition for all the preference trade programs.
The definition of knit-to-shape components includes a requirement that a knit-to-shape component have a self-start edge. One commenter requested that CBP define this term. In addition, the commenter, citing the Informed Compliance Publication (ICP),
CBP agrees with the commenter that the term “self-start edge” needs to be defined. CBP has defined “self-start bottom” in the ICP cited by the commenter. Drawing from that definition, a definition for “self-start edge” has been added in § 10.212 of this final rule document as new paragraph (o). CBP also agrees with the commenter that the term “specific shape” as used in the definition of “knit-to-shape components” needs to be clarified. As a result, the definition of “knit-to-shape components” (now § 10.212(h)) has been modified in this final rule document by the insertion of the language, “, that is, the shape or form of the component as it is used in the apparel article,” after the word “shape” and before the word “containing.” CBP has further modified the definition of “knit-to-shape components” by replacing the article “a” immediately before “self-start edge” with the words “at least one” to clarify that knit-to-shape components may contain one or more self-start edges.
CBP disagrees with the commenter's assertion that a knit-to-shape component cannot be of a square or rectangular shape for purposes of this definition. The ICP publication cited by the commenter discusses knit-to-shape components which are considered “major parts” in determining whether an apparel article is to be considered a knit-to-shape article. “Major parts,” by definition, does not include all components of a knit-to-shape article; “major parts” does not include collars, cuffs, waistbands, plackets, pockets, linings, paddings, trim, accessories, or similar parts. In that context, the ICP addresses the requisite features of a knit-to-shape front, back or sleeve panel. In other words, it addresses the requirements for a “knit-to-shape component” that is a “major part.” CBP agrees that, in that context, square or rectangular textile pieces have been rejected from consideration as “knit-to-shape” because they lacked features, such as armholes, necklines, or shaping, which made it possible to clearly identify the pieces as specific components of a garment. The definition of “knit-to-shape components” in this final rule document, however, includes all components of an apparel article, not just “major parts,” which may be knit directly into the shape in which the component is used in the apparel article. Whether a knit component is knit directly into a geometric shape such as a rectangle or square is of no consequence provided that knit component is knit directly into the shape in which it will be used in a garment and it is identifiable as a garment component.
With regard to the commenter's reliance upon HQ 953224, we believe the commenter meant to cite to HQ 953234 which was issued on May 13, 1993, and addressed the country of origin of plastic coated fabric. However, we believe HQ 953234 does not support the commenter's position as that ruling dealt with the classification of certain woven fabric.
Finally, CBP disagrees with the suggestion by the commenter to amend the definition of “knit-to-shape components” to include a requirement that a component be in condition ready for assembly without further processing. We do not believe such a requirement is necessary. In addition, it contradicts the language in the definition which allows for minor cutting or trimming of such components.
Section 10.213(a)(5) describes a preference available to apparel articles that are “wholly assembled, or knit-to-shape and wholly assembled, or both.” An explanation is sought as to why there is a reference to “both” in section 10.213(a)(5) because the commenter is unable to envision a circumstance where an apparel article would be both “wholly assembled” and “knit-to-shape and wholly assembled.”
The language in § 10.213(a)(5) follows the language of the statute in section 112 (c)(1)(A) of the AGOA (codified at 19 U.S.C. 3721(c)(1)(A)).
A commenter asserts that the lesser developed country beneficiary rule is a relaxation of the more restrictive rules of the other provisions and, therefore, it should be interpreted to allow knit-to-shape components from third countries to be used in the assembly of apparel in the lesser developed beneficiary countries. The commenter posits that
CBP does not have the authority to add the requested language which would change the scope of the provision as enacted. Only Congress may make the change the commenter seeks as the language in the regulation reflects the language in the statute which Congress passed.
The only allowance for the use of foreign (third-country) components in the production of apparel articles eligible for preferential treatment under the AGOA is found in the Special Rules in section 112(e) of the AGOA. Paragraphs (e)(1)(A) and (B) of section 112 (§ 10.213(c)(1)(i) and (c)(1)(ii) of the regulations, respectively) allow for the use of certain foreign interlinings and findings and trimmings, subject to a specified value limitation. Paragraph (e)(3) sets forth a new special rule added by the Act of 2004 which was discussed above. Under this new rule, an article otherwise eligible for preferential treatment under section 112 will not be ineligible for that treatment because the article contains certain specified components that fail to meet the applicable requirements set forth in section 112(b), regardless of the origin of the component (
A commenter asserts that, consistent with the plain language of section 112(b)(3)(B)(i) of the AGOA (as amended by section 3108(a)(3)(B) of the Act of 2002) [now section 112(c)(1)(A)], section 10.213(a)(5) of the interim regulations should be clarified or modified to indicate that the provision “requires knit-to-shape apparel
CBP agrees that the phrase “or knit-to-shape and wholly assembled,” refers to apparel articles. However, CBP disagrees with the commenter's conclusion with regard to knit fabric components assembled in non-knit-to-shape articles. It is assumed that the commenter is referring to knit components that have been knit-to-shape as the concern appears to be where those components are knit. CBP believes that the language of the provision (section 112(c)(1)(A) of the AGOA) must be read as a whole and in so doing, the language “regardless of the country of origin of the fabric or the yarn used to make such articles” must be considered. Congress clearly intended to allow third country fabric or yarn to be used in the production of apparel wholly assembled in lesser developed beneficiary countries. If Congress had intended to allow third-country components, whether knit-to-shape or cut to shape, it is reasonable to expect such intent would have been clearly reflected in the language of the statute as is the case of third-country fabric or yarn. No such intent is reflected in section 112(c)(1)(A) of the AGOA, although as noted above, the Special Rules in section 112(e) of the statute allow the use of certain third-country components. The commenter's effort to draw a distinction between knit-to-shape apparel and cut to shape apparel is without support in the language of the statute.
A commenter argues that a distinction exists in § 10.213(a)(5) between knit-to-shape apparel articles and non-knit-to-shape (cut and sew) apparel articles. Based on this belief, the commenter states that a small foreign rectangular knit component, such as a collar, cannot disqualify, from Preference Group E, a non-knit-to-shape garment that is wholly assembled in a lesser-developed beneficiary country. The argument is that in the case of non-knit-to-shape apparel, “the fabric containing minor knit rectangular components such as collars, cuffs and waistbands, may be knit in any country.” However, for “knit-to-shape apparel the components must be knit in a lesser-developed beneficiary country.” The commenter believes that if CBP “interprets section 3108(a)(3)(B) of the Trade Act of 2002 to prevent preferential treatment for a simple make garment, like a polo shirt, that is wholly assembled in a lesser-developed beneficiary country from a full package of third country fabric, including fabric containing rectangular components for the collars and cuffs, it strains the bounds of reasonable effectuation of preferential access policy and contradicts legislative intent.”
The response to the previous comment is equally applicable to this comment. CBP finds no basis in the language of the lesser developed beneficiary countries provision to justify a distinction between knit-to-shape and other apparel articles.
Only knit-to-shape apparel articles are required to be knit-to-shape in a lesser developed beneficiary country under the terms of § 10.213(a)(5). Knit-to-shape apparel articles are defined as apparel articles “of which 50 percent or more of the exterior surface area is formed by
The commenter is using the definition of a knit-to-shape apparel article to argue that Congress must have meant that only “major parts” need be knit-to-shape in the lesser developed beneficiary sub-Saharan countries to be eligible to receive preferential treatment under the AGOA lesser developed beneficiary countries provision. The commenter asserts that in the case of knit-to-shape apparel articles, it should be permissible to source “minor components” which are not considered in determining whether an apparel article is knit-to-shape from third countries. In making this argument, the commenter has ignored the language in section 112(c)(1)(A) of the AGOA which states, “regardless of the country of origin of the fabric or yarn.” It is this phrase which is key to CBP's position that, except as expressly permitted by the Special Rules in section 112(e) of the AGOA, third-country components,
The sentence which the commenter requests be added to § 10.213(a)(5) cannot be added as it goes beyond an interpretation of the language as enacted by Congress. The addition of such a statement would modify the scope of the provision and CBP does not have the authority to take such action.
“Even if the reference to `components' in section 3108(a)(3) of the Act of 2002 can be read into section 3108(a)(3)(B) setting forth the special rules for lesser-developed beneficiary countries, . . ., the term can only be understood to refer to the types of knit-to-shape components that render a garment a knit-to-shape garment as described in
Based on this line of reasoning, the commenter argues that even if collars are knit-to-shape components, they are not within the scope of the knit-to-shape components that must be knit in a lesser-developed beneficiary country under section 112(b)(3)(B)(i) of the AGOA, as amended by section 3108(a)(3)(B) of the Act of 2002 [now section 112(c)(1)(A)]. The commenter asserts that there is an interpretative opportunity for CBP to allow preferential treatment under Preference Group E “for (i) non-knit-to-shape garments wholly assembled in lesser-developed beneficiary countries from fabric and
The commenter's argument with regard to 19 U.S.C. 3592 (rules of origin for textiles and apparel) is misplaced. The AGOA is not based on the rules of origin for textile and apparel goods in part 102 of the CBP regulations; it is a program which is based on meeting the specific production requirements detailed by Congress in the various provisions of the AGOA.
In the case of the lesser developed beneficiary countries, Congress specified that the apparel must be “wholly assembled, or knit-to-shape and wholly assembled, or both.” In addition to specifying these requirements, Congress allowed the use of fabric or yarn in the production of apparel under this provision “regardless of the country of origin.” If Congress had intended the allowance of foreign-sourced (third-country) components (beyond that permitted by the Special Rules in section 112(e) of the AGOA), be they knit-to-shape or cut-to-shape, Congress would have so specified in this provision or Congress could have merely required that apparel be wholly assembled without specifically addressing the source of fabric and yarn.
The commenter, in this instance, is attempting to limit the meaning of “knit-to-shape components” based on the definition of “knit-to-shape” in the CBP regulations for determining the country of origin of textile goods (19 CFR 102.21). The commenter asks CBP to accept the assertion that Congress only meant to address those knit-to-shape components that are considered in determining whether a garment is knit-to-shape,
A commenter asserts that “[f]abric comprising simple rectangular knit components, like polo shirt collars, is not knit-to-shape components as that term has previously been defined by CBP, and it is not classifiable as such under the HTSUS.” The commenter looks to the Informed Compliance Publication (ICP),
With regard to the definition of knit-to-shape components as that term has been applied in the past by CBP, the commenter refers to the ICP,
The commenter cites to Note 7, Section XI, HTSUS, and claims that simple rectangular or square components are not “made up” articles as defined by that note. The commenter is correct, but only in part. Note 7 defines “made up”, in pertinent part, as “(a) Cut otherwise than into squares or rectangles;” and “(f) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.” Rectangular or square components that are cut from larger pieces of fabric are, as the commenter pointed out, not “made up” articles as defined by Note 7. However, with regard to components such as collars, cuffs, and waistbands which may be knit-to-shape and whose shape happens to be rectangular, such components would fall within the language of Note 7(f) and thus be considered “made up.”
Generally, collars which are knit-to-shape are knit in a series of collars separated by dividing threads or lines of demarcation. Thus, CBP must disagree with the commenter with regard to “fabric” which is knit with lines of demarcation to indicate the length and width of individual items which contain a self-start edge and are readily identifiable as garment components. Even if these individual items are rectangular in shape and require minor cutting or trimming before use, provided they have the essential character of the finished component,
As to the commenter's contention with regard to long rolls of knit fabric which are the size and shape of waistbands or cuffs but are to be cut to length, CBP agrees that such rolls remain fabric. Although strips of material may be used to produce any number of cuffs or waistbands or collars, if the quantity and identity of the components cannot be discerned from an examination of the material, CBP considers the material to be fabric. Support for this view may be found in
As for the definition of “knit-to-shape components,” CBP in this final rule document is changing the definition, as already discussed, to add clarity.
According to a commenter, CBP's position that collars and cuffs used in the production of articles under the lesser developed beneficiary countries provision “are not fabric, but rather `fabric components'. . . . is a distinction without a difference and these components should be properly characterized as fabric.” The commenter states that “in past rulings, the Customs Service has characterized knit fabric components as `fabric.'” The commenter asserts that these fabric components are an integral part of the garment and are not themselves knit-to-shape and to adopt such an interpretation would not conflict with Congressional intent. This commenter requests that § 10.213(b)(5) of the regulations be clarified to allow the use of third country formed collars and cuffs.
CBP believes that the commenter's concerns have effectively been rendered moot by the addition of the new special rule in section 112(e)(3) of the AGOA by the Act of 2004, as discussed above. As applied to this commenter's specific concerns, this statutory change permits the use of collars and cuffs (cut or knit-to-shape) made in a non-lesser developed beneficiary country in the construction of apparel articles covered by section 112(c)(1)(A)of the AGOA (§ 10.213(b)(5)).
Two commenters request that the regulations be clarified with regard to the eligibility under AGOA of garments knit-to-shape and assembled in a lesser developed beneficiary country with collars and cuffs knit in a non-lesser developed beneficiary country. These commenters disagree with CBP's interpretation that collars and cuffs must be knit-to-shape in a lesser developed beneficiary country in order for the apparel to qualify. The commenters believe apparel should still qualify for preferential treatment under the AGOA, provided the knit components which are knit-to-shape in a non-lesser developed beneficiary country otherwise meet the AGOA eligibility requirements.
Again, the commenters' concerns have been rendered moot by the new special rule in section 112(e)(3) of the AGOA and § 10.213(c)(1)(v) of the regulations.
One commenter stated that the definition of the “cost” of components and the “value” of findings and trimmings and interlinings set forth in § 10.213(b)(2) of the Interim Regulations “incorporate a bias that could overstate the relative cost of trim and findings” in comparison to the cost of the other components of the article. The commenter pointed out that in the “usual circumstance,” components subject to the findings and trimmings exception would originate in a non-AGOA beneficiary country while the other components of the article would be produced at the site of manufacture of the article in an AGOA beneficiary country. Thus, by applying an f.o.b. port of exportation standard, the value of foreign findings and trimmings would include the cost of transportation within the country of origin, but the cost of the other components would include little or no transportation costs. The commenter suggests using an ex-factory cost or value in lieu of the f.o.b port of exportation standard provided for in § 10.213(b)(2) of the Interim Regulations.
CBP agrees with the commenter and believes that the definition of “cost” and “value” in re-designated § 10.213(c)(2) (formerly § 10.213(b)(2)) also has the potential for overstating the “value” of foreign interlinings in comparison to the “cost” of the components of the assembled article for the same reason cited by the commenter. CBP also agrees that the use
One commenter suggested that the regulations make it clear that post-assembly processes (such as embroidering, stone-washing, enzyme-washing, acid washing, perma-pressing, oven-baking, bleaching, garment-dyeing or screen printing) do not disqualify an apparel article for preferential treatment when all other criteria for eligibility are met. The commenter noted that including such language in the AGOA regulations would be consistent with similar provisions currently found in the regulations relating to textile and apparel articles under the United States-Caribbean Basin Trade Partnership Act (CBTPA) (
Nearly identical comments were previously received in response to the initial AGOA interim regulations adopted in T.D. 00–67. An analysis of these previous comments relating to post-assembly processing is set forth above in this final rule document in the discussion of comments on post-assembly processing received in response to T.D. 00–67.
A commenter strongly disagreed with the language in § 10.213(a)(8) that excludes brassieres from receiving preferential treatment under this short supply provision. The commenter recommended that the words “, other than brassieres classifiable under subheading 6212.10, HTSUS,” (which were added to § 10.213(a)(8) by T.D. 03–15) be deleted. CBP concluded in T.D. 03–15 that Congress intended to exclude brassieres from the AGOA short supply provision because the CBTPA and the ATPDEA each contained separate provisions specific to preferential treatment for brassieres and as the short supply language in the three trade preference programs are substantially similar, if the short supply provisions in CBTPA and ATPDEA do not include brassieres, then neither does AGOA's short supply provision. The commenter stated that, as a result of amendments made by the Act of 2002, language was included in the CBTPA and ATPDEA preference provisions covering brassieres that specifically envisions brassieres being imported under the short supply provisions in each of those two trade preference programs. The commenter stated that this statutory language stands in sharp contrast to CBP's view that brassieres are not eligible for short supply treatment in those trade programs.
As CBP stated in the discussion of the interim amendments in the preamble of T.D. 03–15, § 10.223(a)(7) provides for apparel articles constructed of fabrics or yarns which for purposes of Annex 401 of the NAFTA are deemed to be in “short supply.” There is no list of “short supply” fabrics or yarns for purposes of the NAFTA. The determination of these “short supply” fabrics or yarns is based upon the various provisions of the NAFTA and whether, under the NAFTA, for the particular apparel article at issue, certain fabrics or yarns may be sourced from outside the NAFTA parties for use in the production of an “originating” good. If the sourcing of certain fabrics or yarns outside the NAFTA parties is allowed, then those fabrics or yarns are deemed to be in “short supply” for that apparel article.
In the case of brassieres under the NAFTA, no restrictions or limitations apply regarding fabrics or yarns. Therefore, fabrics and yarns may be obtained from anywhere. The only requirement under Annex 401 is that articles classified in subheading 6212.10, HTSUS, must be “both cut (or knit to shape) and sewn or otherwise assembled in the territory of one or more of the NAFTA parties.” CBP believes that the absence of NAFTA restrictions on fabrics or yarns used in the production of brassieres, does not mean that all fabrics or yarns used for this purpose must be in “short supply.” CBP submits that applying the short supply provision to a product where the NAFTA rule makes no mention of excluded materials would render meaningless the specific provisions on brassieres in the CBTPA and ATPDEA. Thus, CBP remains of the view that it was appropriate to amend § 10.213(a)(8) to clarify that brassieres are not covered by this provision.
Additionally, the commenter pointed out that, as a result of amendments made by the Act of 2002, language was added to the preferential provisions specifically covering brassieres in the CBTPA and ATPDEA which excluded articles covered by certain other provisions in those programs. According to the commenter, the exception language added by Congress to the brassiere provisions clearly envisioned brassieres being imported under these excluded provisions, including the short supply provisions. In CBP's opinion, the addition of this exception language should not be interpreted as indicating that brasseries are eligible under any or all of the excepted provisions. This clarifying language merely states that any brassieres classified in one of the excepted provisions would not be considered in determining eligibility under the specific CBTPA and ATPDEA brassiere provisions.
A commenter expressed agreement with the removal of the words “in a beneficiary country” from § 10.217(a)(2) and (a)(3) in recognition of the fact “that many companies do not necessarily keep the verification documentation in the factory that performed the sewing.” The commenter also recommended that the Certificate of Origin be further simplified into one form to serve the AGOA, the CBTPA and the ATPDEA programs because the requirements for these programs are the same. The commenter also suggested that the exporter be given the option of inserting “available upon request” in the three blocks on the Certificate in which the names and addresses of the producers of the fabric, yarn and thread are to be provided.
CBP would certainly be open to any suggestions concerning the simplification of the Certificate of Origin. However, developing one form to accommodate AGOA, CBTPA and ATPDEA would result in the form becoming substantially more complex, especially for the exporter who is required to complete the form and is responsible for ensuring that the information is accurate. Although the textile and apparel provisions in the three programs are substantially similar, there are sufficient differences in the preferential groupings and requirements among the programs to present significant obstacles to the creation of a common certificate.
With regard to the commenter's recommendation that CBP accept “available upon request” in the blocks on the Certificate where the names and addresses of the yarn, fabric and thread suppliers are to be provided, CBP notes that the same suggestion previously was
A commenter recommends a change in the language in § 10.213(a)(1) and (a)(2) to add the phrase “or both” before the parenthetical. The commenter believes it will clarify that garments using a combination of knit-to-shape components and cut fabric components are allowed.
The commenter's concerns have been addressed by an amendment to section 112(b)(1) of the AGOA by the Act of 2004. Accordingly, as discussed previously, CBP has in this final rule document amended § 10.213(a)(1) and (a)(2) by adding the words “or both” immediately before the parenthetical matter.
A commenter recommends changing the language in § 10.213(a)(4) “from yarns originating either in the United States or one or more beneficiary countries” to “from yarns originating in any combination of the United States or one or more beneficiary countries.” The commenter believes this will clarify that a combination of U.S. and sub-Saharan African yarns is allowed in the production of fabric or knit-to-shape components.
Again, the commenter's concerns have been addressed by an amendment to section 112(b)(3) of the AGOA by the Act of 2004. As amended in this final rule document, § 10.213(a)(4) now reads, in pertinent part: “. . . from yarns originating in the United States or one or more beneficiary countries or former beneficiary countries,
A commenter requested that the language, “or any combination of the above fabric formation or knit to shape operations” be added immediately before the “subject to the applicable quantitative limit” language in § 10.213(a)(4). The commenter believes this will clarify that cut fabric components and knit-to-shape components may be combined.
The language set forth in § 10.213(a)(4) is consistent with the statutory language in section 112(b)(3) of the AGOA. In addition, the suggested change is unnecessary as CBP construes the word “or” between “fabric wholly formed in one or more beneficiary countries” and “components knit-to-shape in one or more beneficiary countries” in the context in which it is used in § 10.213(a)(4) to mean “and/or.”
A commenter proposed that CBP clarify various hybrid operations by the addition of a “global hybrid phrase”, which may appear as a new special rule in § 10.213(b)(1) [re-designated in this document as § 10.213(c)(1)]. The rule would provide that an article otherwise eligible for preferential treatment will not be ineligible for that treatment because it contains: “(v) Fabrics, fabric components formed, or components knit-to-shape described in paragraph (a)(1).” According to the commenter, the insertion of this new provision in the regulations will ensure that the inclusion of United States components in a garment will not render the garment ineligible for duty benefits. The commenter also states that the inclusion of such a provision is consistent with pending clarifying changes that Congress is considering, which will provide further guidance as to original congressional intent.
The commenter's concerns were partially addressed by an amendment to section 112(b)(3) of the AGOA made by the Act of 2004 which added the words “whether or not the apparel articles are also made from any of the fabrics, fabric components formed, or components knit-to-shape described in paragraph (1) or (2)” of section 112(b). A comparable change has been made in this document to § 10.213(a)(4). However, beyond this change, CBP is without authority to add the requested new special rule in the regulations as it would change the scope of certain of the statutory preferential groupings.
In addition to the regulatory changes identified and discussed above in connection with (1) the statutory changes to the AGOA made by section 7 of the Act of 2004 and section 6002 of the Act of 2006, and (2) the discussion of public comments in response to T.D. 00–67 and T.D. 03–15, the regulatory texts set forth below incorporate the following additional changes which CBP believes are necessary based on further internal review of the interim regulatory texts:
1. As a result of changes to the AGOA made by section 3108(a) of the Act of 2002, T.D. 03–15 amended paragraphs (a)(1), (a)(2), and (a)(3) of interim §§ 10.213 (among other changes to the interim regulations) to insert the words “sewn or otherwise” immediately before the words “assembled in one or more beneficiary countries.” In addition, a new paragraph (a)(11) was added to § 10.213 by T.D. 03–15 to reflect the addition of new paragraph (b)(7) to section 112 of the AGOA by the Act of 2002. The words “sewn or otherwise assembled in one or more beneficiary countries” appear in § 10.213(a)(11) as well. As a result of these changes, the definition of “assembled in one or more beneficiary countries” in interim § 10.212 has been replaced by a definition of “sewn or otherwise assembled in one or more beneficiary countries” (now § 10.212(q)). The substance of the definition has not changed.
2. CBP has determined that the definition of “foreign” as set forth in interim § 10.212 could cause some confusion and might lead to anomalous and unintended results in certain circumstances. That definition (which has relevance only in the context of the findings, trimmings and interlinings provisions of re-designated § 10.213(c)) in the interim texts simply reads “of a country other than the United States or a beneficiary country.” However, because the various textile and apparel articles to which preferential treatment applies are described in § 10.213(a) with reference to specific production processes in the case of yarns, fabrics and components that must take place in the United States or in a beneficiary country (or in certain instances, in a former beneficiary country) or both, more is required than that the yarn or fabric or component be “of” (that is, have its origin in) the United States or a beneficiary country. For example, § 10.213(a)(1) refers to articles “sewn or otherwise assembled” in one or more beneficiary countries from “fabrics wholly formed and cut” in the United States from “yarns wholly formed” in the United States. A fabric that was wholly formed in the United States but from yarns formed outside the United States would not meet the § 10.213(a)(1) standard and also would not be considered “foreign” under the interim definition because it is “of” (that is, it has its origin in) the United States by virtue of its having been formed in the United States. Therefore, that fabric could not be present in the article under the finding, trimming or interlining rule exception; consequently, even if all of the other fabric in the article was wholly formed and cut in the United States from yarns wholly formed in the United States and the article was assembled in a beneficiary country, the assembled article would not qualify for preferential
3. Section 10.213(a)(6) includes a reference to subheading 6110.10, HTSUS, which has been replaced by subheading 6110.12, HTSUS. Accordingly, the reference in § 10.213(a)(6) to subheading 6110.10 has been replaced by a reference to subheading 6110.12.
4. CBP has determined that the producer or the producer's authorized agent having knowledge of the relevant facts should be permitted to sign the Certificate of Origin in addition to the exporter or the exporter's authorized agent. The producer clearly is in the best position to attest to the accuracy of the information set forth in the Certificate. Therefore, §§ 10.214(a), 10.214(c)(13), and 10.216(b)(2) have been changed to provide that the Certificate of Origin must be signed by the exporter or producer or by the exporter's or producer's authorized agent having knowledge of the relevant facts. CBP notes that this change is consistent with changes to the implementing regulations under the Caribbean Basin Trade Partnership Act (CBTPA) and the Andean Trade Promotion and Drug Eradication Act (ATPDEA) and thus brings uniformity to the three programs in this regard.
5. References to “Customs” within the regulatory text in §§ 10.214, 10.215, 10.216, and 10.217 have been changed to “CBP.”
6. Several numerical or alphabetical paragraph designations or other references within regulatory text in §§ 10.212, 10.213, 10.214, 10.216, and 10.217 have been changed to conform to additions or other changes to the regulatory texts discussed above.
7. In § 178.2, the table has been amended by adding a listing for §§ 10.214–10.216 to provide the Office of Management and Budget (OMB) control number for the collection of information in §§ 10.214–10.216.
Accordingly, based on the analysis of comments received as set forth above and the additional considerations discussed above, CBP is adopting as a final rule the interim regulations initially published in T.D. 00–67 and later amended in T.D. 03–15 with certain changes as discussed above and as set forth below. The following is a comprehensive listing of all of the changes made to the interim regulatory texts by CBP in this final rule document:
1. In § 10.178a, paragraphs (d)(2) and (d)(4)(ii) have been revised to provide for the inclusion of the cost or value of materials produced in “former beneficiary sub-Saharan African countries” toward meeting the GSP 35% value-content requirement, and a new paragraph (d)(5) has been added to define “former beneficiary sub-Saharan African country;”
2. In § 10.212:
a. The definition of “apparel articles” (now paragraph (a)) has been revised to delete heading “6503”, to replace the reference to subheading “6406.99” of the HTSUS with a reference to subheading “6406.90.15”, and to replace the reference to subheading “6505.90” with a reference to subheadings “6505.00.02–6505.00.90”;
b. The definition of “assembled in one or more beneficiary countries” has been replaced by a definition of “sewn or otherwise assembled in one or more beneficiary countries” (now paragraph (q));
c. The definition of “cut in one or more beneficiary countries” (now paragraph (c)) has been revised to add the words “or were cut from fabric in the United States and used in a partial assembly operation in the United States prior to the cutting of fabric and final assembly of the article in one or more beneficiary countries, or both;”
d. A definition of “ethnic printed fabric” has been added as new paragraph (d);
e. The definition of “foreign” has been replaced by a definition of “foreign origin” (now paragraph (e));
f. A definition of “former beneficiary country” has been added as new paragraph (f);
g. The definition of “knit-to-shape components” (now paragraph (i)) has been modified to clarify the words “specific shape” and to replace the article “a” immediately before “self-start edge” with the words “at least one” to clarify that knit-to-shape components may contain one or more self-start edges;
h. A definition of “lesser developed beneficiary country” has been added as new paragraph (j);
i. A definition of “self-start edge” has been added as new paragraph (o);
j. A definition of “sewing thread” has been added as new paragraph (p);
k. The definition of “wholly formed fabrics” (now paragraph (s)) has been modified to clarify that fabric formation does not encompass dyeing, printing and finishing operations; and
l. The definition of “wholly formed yarns” (now paragraph (u)) has been revised to clarify that draw-texturing to fully orient a filament falls within the scope of “wholly formed” as it relates to yarn while dyeing, printing, and finishing operations do not;
3. In § 10.213, paragraphs (a)(1) and (a)(2) have been revised to include the words “or both” immediately before the parenthetical matter to clarify that the described apparel articles may be made both from fabrics wholly formed and cut in the United States and from components knit-to-shape in the United States;
4. In § 10.213, paragraphs (a)(3) and (a)(11) have been modified to insert the word “sewing” before the word “thread;”
5. In § 10.213, paragraph (a)(4) has been revised to replace the words “either in the United States or one or more beneficiary countries” each place they appear with the words “in the United States or one or more beneficiary countries or former beneficiary countries, or both,” and to insert the words “whether or not the apparel articles are also made from any of the fabrics, fabric components formed, or components knit-to-shape described in paragraph (a)(1), paragraph (a)(2) or paragraph (a)(3) of this section (unless the apparel articles are made exclusively from any of the fabrics, fabric components formed, or components knit-to-shape described in paragraph (a)(1), paragraph (a)(2), or paragraph (a)(3) of this section),” immediately before the words “subject to;”
6. In § 10.213, paragraph (a)(6) has been revised to replace the reference to “subheading 6110.10 of the HTSUS” with “subheading 6110.12 of the HTSUS;”
7. In § 10.213, paragraph (a)(8) has been modified to remove the words “from fabrics or yarn that is not formed
8. In § 10.213, paragraph (a)(10) has been modified to add a reference to “ethnic printed fabric;”
9. In § 10.213, paragraph (a)(11) has been revised to add references to “former beneficiary countries;”
10. In § 10.213, a new paragraph (a)(12) has been added to include preferential treatment for “[t]extile and textile articles classifiable under Chapters 50 through 60 or Chapter 63 of the HTSUS that are products of a lesser developed beneficiary country and are wholly formed in one or more such countries from fibers, yarns, fabrics, fabric components, or components knit-to-shape that are the product of one or more such countries;”
11. In § 10.213, a new paragraph (b) has been added (with paragraphs (b) and (c) of the interim regulations re-designated as (c) and (d)) to provide:
a. In paragraph (b)(1)), in part, that while dyeing, printing, and finishing operations are not part of the fabric, component, or yarn formation process, those operations are only permissible if performed in the United States or in a beneficiary country; and
b. In paragraph (b)(2)), in part, that articles otherwise entitled to preferential treatment under the AGOA will not be disqualified from receiving that treatment because they undergo post-assembly operations in the United States or in one or more beneficiary countries;
12. In § 10.213, re-designated paragraph (c)(1)(iv) (formerly paragraph (b)(1)(iv)) has been modified to add a reference to “former beneficiary countries” and to increase the applicable
13. In § 10.213, re-designated paragraph (c) (formerly paragraph (b)) has been revised to add a new paragraph (c)(1)(v) that sets forth a new special rule regarding certain specified components;
14. In § 10.213, re-designated paragraph (c)(2) (formerly paragraph (b)(2)) has been modified to incorporate an ex-factory standard in lieu of the f.o.b. port of exportation standard;
15. In § 10.214, paragraphs (a), (b)(2), and (c)(13) have been revised to provide that the Certificate of Origin must be signed by the exporter or producer or by the exporter's or producer's authorized agent having knowledge of the relevant facts;
16. In § 10.214, the preference group descriptions on the Certificate of Origin set forth in paragraph (b) have been revised, as appropriate, to reflect the changes and additions made to the textile and apparel product descriptions in paragraphs (a)(1), (a)(2), (a)(4), (a)(8), (a)(10), (a)(11), and (a)(12) of § 10.213;
17. In § 10.214, the instructions for the completion of the Certificate of Origin set forth in paragraph (c) have been revised, as appropriate, to reflect the changes made to the Certificate;
18. In §§ 10.214, 10.215, 10.216, and 10.217, references to “Customs” have been changed to “CBP;”
19. In §§ 10.212, 10.213, 10.214, 10.216, and 10.217, certain numerical or alphabetical paragraph designations or other references have been changed to conform to additions or other changes to the regulatory texts discussed above;
20. In the Appendix to Part 163, the reference to the “AGOA Textile Certificate of Origin and supporting records” in the “(a)(1)(A)” list has been modified by deleting the words “and supporting records;” and
21. In § 178.2, the table has been modified to provide the OMB control number for the collection of information in §§ 10.214 through 10.216.
In view of the multiple changes throughout the AGOA textile and apparel regulatory provisions contained in §§ 10.211 through 10.217, those provisions are revised in their entirety in this final rule document.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a “significant regulatory action,” under section 3(f) of Executive Order 12866 as it is not likely to have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order. Accordingly, OMB has not reviewed this regulation.
As set forth in the preamble of this final rule document, the regulations to implement the trade benefits for sub-Saharan Africa contained in the AGOA as well as certain changes to the GSP statute were previously published in T.D. 00–67 and T.D. 03–15 as interim regulations. Those interim regulations provided trade benefits to the importing public, in some cases implemented direct statutory mandates, and were necessary to carry out the preferential treatment and U.S. tariff changes proclaimed by the President under the AGOA. Pursuant to the provisions of 5 U.S.C. 553(b)(B), CBP issued the regulations as interim rules because it had determined that prior public notice and comment procedures on these regulations were unnecessary and contrary to the public interest. For these reasons, pursuant to the provisions of 5 U.S.C. 553(d)(1) and (3), CBP also found that there was good cause for dispensing with a delayed effective date. Because no notice of proposed rulemaking was required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
The collection of information contained in this final rule has previously been reviewed and approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1651–0082. The collection of information in this final rule is in sections 10.214, 10.215, and 10.216. This information is used by CBP to determine whether textile and apparel articles imported from designated beneficiary sub-Saharan African countries are entitled to duty-free entry under the African Growth and Opportunity Act. The likely respondents are business organizations including importers, exporters, and manufacturers.
The estimated average number of respondents filing annually under AGOA is 210, with each respondent filing an average of 107 AGOA claims per year for an aggregate total of 22,470 claims. The average time to complete each claim is 20 minutes which results in an annual burden of 7,640 hours for this collection of information. Under the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a
This final rule is being issued in accordance with § 0.1(a)(1) of the CBP regulations (19 CFR 0.1(a)(1)) pertaining to the authority of the Secretary of the Treasury (or his/her delegate) to approve regulations related to certain CBP revenue functions.
Assembly, Bonds, Caribbean Basin Initiative, Customs duties and inspection, Exports, Generalized System of Preferences, Imports, Preference programs, Reporting and recordkeeping requirements, Trade agreements.
Administrative practice and procedure, Customs duties and inspection, Imports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Exports, Imports, Reporting and recordkeeping requirements.
Accordingly, the interim rule amending Parts 10 and 163 of the CBP regulations (19 CFR Parts10 and 163), which was published at 65 FR 59668–59681 on October 5, 2000, corrected at 65 FR 67260 on November 9, 2000, and further amended at 68 FR 13820–13827 on March 21, 2003, is adopted as a final rule with certain changes as discussed above and set forth below. In addition, Part 178 of the CBP regulations (19 CFR Part 178) is amended as discussed above and set forth below.
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1321, 1481, 1484, 1498, 1508, 1623, 1624, 3314;
Sections 10.171 through 10.178a also issued under 19 U.S.C. 2461
Sections 10.211 through 10.217 also issued under 19 U.S.C. 3721;
(d) * * *
(2) In the GSP declaration set forth in § 10.173(a)(1)(i), the column heading “Materials produced in a beneficiary developing country or members of the same association” should read “Material produced in a beneficiary sub-Saharan African country, a former beneficiary sub-Saharan African country, or the U.S.;”
(4) * * *
(ii) The cost or value of materials included in the article that are produced in more than one beneficiary sub-Saharan African country or former beneficiary sub-Saharan African country may be applied without regard to whether those countries are members of the same association of countries.
(5) As used in this paragraph, the term “former beneficiary sub-Saharan African country” means a country that, after being designated by the President as a beneficiary sub-Saharan African country under section 506A of the Trade Act of 1974 (19 U.S.C. 2466a), ceased to be designated as such a beneficiary sub-Saharan African country by reason of its entering into a free trade agreement with the United States.
Title I of Public Law 106–200 (114 Stat. 251), entitled the African Growth and Opportunity Act (AGOA), authorizes the President to extend certain trade benefits to designated countries in sub-Saharan Africa. Section 112 of the AGOA, codified at 19 U.S.C. 3721, provides for the preferential treatment of certain textile and apparel articles from beneficiary countries. The provisions of §§ 10.211–10.217 of this part set forth the legal requirements and procedures that apply for purposes of extending preferential treatment pursuant to section 112.
When used in §§ 10.211 through 10.217, the following terms have the meanings indicated:
(a)
(b)
(c)
(d)
(1) Containing a selvedge on both edges, having a width of less than 50 inches, classifiable under subheading 5208.52.30 or 5208.52.40 of the HTSUS;
(2) Of the type that contains designs, symbols, and other characteristics of African prints:
(i) Normally produced for and sold on the indigenous African market; and
(ii) Normally sold in Africa by the piece as opposed to being tailored into garments before being sold in indigenous African markets;
(3) Printed, including waxed, in one or more eligible beneficiary countries; and
(4) Formed in the United States, from yarns formed in the United States, or from fabric formed in one or more beneficiary countries from yarn originating in either the United States or one or more beneficiary countries;
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(a)
(1) Apparel articles sewn or otherwise assembled in one or more beneficiary countries from fabrics wholly formed and cut, or from components knit-to shape, in the United States, from yarns wholly formed in the United States, or both (including fabrics not formed from yarns, if those fabrics are classifiable under heading 5602 or 5603 of the HTSUS and are wholly formed and cut in the United States) that are entered under subheading 9802.00.80 of the HTSUS;
(2) Apparel articles sewn or otherwise assembled in one or more beneficiary countries from fabrics wholly formed and cut, or from components knit-to-shape, in the United States, from yarns wholly formed in the United States, or both (including fabrics not formed from yarns, if those fabrics are classifiable under heading 5602 or 5603 of the HTSUS and are wholly formed and cut in the United States) that are entered under Chapter 61 or 62 of the HTSUS, if, after that assembly, the articles would have qualified for entry under subheading 9802.00.80 of the HTSUS
(3) Apparel articles sewn or otherwise assembled in one or more beneficiary countries with sewing thread formed in the United States from fabrics wholly formed in the United States and cut in one or more beneficiary countries from yarns wholly formed in the United States, or from components knit-to-shape in the United States from yarns wholly formed in the United States, or both (including fabrics not formed from yarns, if those fabrics are classified under heading 5602 or 5603 of the HTSUS and are wholly formed in the United States);
(4) Apparel articles wholly assembled in one or more beneficiary countries from fabric wholly formed in one or more beneficiary countries from yarns originating in the United States or one or more beneficiary countries or former beneficiary countries, or both (including fabrics not formed from yarns, if those fabrics are classifiable under heading 5602 or 5603 of the HTSUS and are wholly formed in one or more beneficiary countries), or from components knit-to-shape in one or more beneficiary countries from yarns originating in the United States or one or more beneficiary countries or former beneficiary countries, or both, or apparel articles wholly formed on seamless knitting machines in a beneficiary country from yarns originating in the United States or one or more beneficiary countries or former beneficiary countries, or both, whether or not the apparel articles are also made from any of the fabrics, fabric components formed, or components knit-to-shape described in paragraph (a)(1), (2) or (3) of this section (unless the apparel articles are made exclusively from any of the fabrics, fabric components formed, or components knit-to-shape described in paragraph (a)(1), (2), or (3) of this section), subject to the applicable quantitative limit published in the
(5) Apparel articles wholly assembled, or knit to shape and wholly assembled, or both, in one or more lesser developed beneficiary countries regardless of the country of origin of the fabric or the yarn used to make the articles, subject to the applicable quantitative limit published in the
(6) Sweaters, in chief weight of cashmere, knit-to-shape in one or more beneficiary countries and classifiable under subheading 6110.12 of the HTSUS;
(7) Sweaters, containing 50 percent or more by weight of wool measuring 21.5 microns in diameter or finer, knit-to-shape in one or more beneficiary countries;
(8) Apparel articles, other than brassieres classifiable under subheading 6212.10, HTSUS, that are both cut (or knit-to-shape) and sewn or otherwise assembled in one or more beneficiary countries, provided that the apparel articles would be considered an originating good under General Note 12(t) HTSUS, without regard to the source of the fabric or yarn of which the articles are made, if the apparel articles had been imported directly from Canada or Mexico;
(9) Apparel articles that are both cut (or knit-to-shape) and sewn or otherwise assembled in one or more beneficiary countries from fabrics or yarn that the President or his designee has designated in the
(10) A handloomed, handmade, or folklore article or an ethnic printed fabric of a beneficiary country or countries that is certified as a handloomed, handmade, or folklore article or an ethnic printed fabric by the competent authority of the beneficiary country or countries, provided that the President or his designee has determined that the article in question will be treated as being a handloomed, handmade, or folklore article or an ethnic printed fabric;
(11) Apparel articles sewn or otherwise assembled in one or more beneficiary countries with sewing thread formed in the United States:
(i) From components cut in the United States and one or more beneficiary countries or former beneficiary countries from fabric wholly formed in the United States from yarns wholly formed in the United States (including fabrics not formed from yarns, if those fabrics are classifiable under heading 5602 or 5603 of the HTSUS);
(ii) From components knit-to-shape in the United States and one or more beneficiary countries or former beneficiary countries from yarns wholly formed in the United States; or
(iii) From any combination of two or more of the cutting or knitting-to-shape operations described in paragraph (a)(11)(i) or paragraph (a)(11)(ii) of this section; and
(12) Textile and textile articles classifiable under Chapters 50 through 60 or Chapter 63 of the HTSUS that are products of a lesser developed beneficiary country and are wholly formed in one or more such countries from fibers, yarns, fabrics, fabric components, or components knit-to-shape that are the product of one or more such countries.
(b)
(2)
(c)
(i) Findings and trimmings of foreign origin, if the value of those findings and trimmings does not exceed 25 percent of the cost of the components of the assembled article. For purposes of this
(ii) Interlinings of foreign origin, if the value of those interlinings does not exceed 25 percent of the cost of the components of the assembled article. For purposes of this section “interlinings” include only a chest type plate, a “hymo” piece, or “sleeve header,” of woven or weft-inserted warp knit construction and of coarse animal hair or man-made filaments;
(iii) Any combination of findings and trimmings of foreign origin and interlinings of foreign origin, if the total value of those findings and trimmings and interlinings does not exceed 25 percent of the cost of the components of the assembled article;
(iv) Fibers or yarns not wholly formed in the United States or one or more beneficiary countries or former beneficiary countries if the total weight of all those fibers and yarns is not more than 10 percent of the total weight of the article; or
(v) Any collars or cuffs (cut or knit-to-shape), drawstrings, shoulder pads or other padding, waistbands, belt attached to the article, straps containing elastic, or elbow patches that do not meet the requirements set forth in paragraph (a) of this section, regardless of the country of origin of the applicable component referred to in this paragraph.
(2)
(i) The ex-factory price of the components, findings and trimmings or interlinings as set out in the invoice or other commercial documents, or, if the price is other than ex-factory, the price as set out in the invoice or other commercial documents adjusted to arrive at an ex-factory price; or
(ii) If the price cannot be determined under paragraph (c)(2)(i) of this section or if that price is unreasonable, all reasonable expenses incurred in the growth, production, manufacture or other processing of the components, findings and trimmings, or interlinings, including the cost or value of materials and general expenses, plus a reasonable amount for profit.
(3)
(d)
(1) Direct shipment from any beneficiary country to the United States without passing through the territory of any non-beneficiary country;
(2) If the shipment is from any beneficiary country to the United States through the territory of any non-beneficiary country, the articles in the shipment do not enter into the commerce of any non-beneficiary country while en route to the United States and the invoices, bills of lading, and other shipping documents show the United States as the final destination; or
(3) If the shipment is from any beneficiary country to the United States through the territory of any non-beneficiary country, and the invoices and other documents do not show the United States as the final destination, the articles in the shipment upon arrival in the United States are imported directly only if they:
(i) Remained under the control of the customs authority of the intermediate country;
(ii) Did not enter into the commerce of the intermediate country except for the purpose of sale other than at retail, and the port director is satisfied that the importation results from the original commercial transaction between the importer and the producer or the producer's sales agent; and
(iii) Were not subjected to operations other than loading or unloading, and other activities necessary to preserve the articles in good condition.
(a)
(1) The person's reasonable reliance on the producer's written representation that the article qualifies for preferential treatment; or
(2) A completed and signed Certificate of Origin for the article voluntarily provided to the person by the producer.
(b)
(c)
(1) Blocks 1 through 5 pertain only to the final article exported to the United States for which preferential treatment may be claimed;
(2) Block 1 should state the legal name and address (including country) of the exporter;
(3) Block 2 should state the legal name and address (including country) of the producer. If there is more than one producer, attach a list stating the legal name and address (including country) of all additional producers. If this information is confidential, it is acceptable to state “available to CBP upon request” in block 2. If the producer and the exporter are the same, state “same” in block 2;
(4) Block 3 should state the legal name and address (including country) of the importer;
(5) In block 4, insert the number and/or letter that identifies the preference group which applies to the article according to the description contained in the CFR provision cited on the Certificate for that group;
(6) Block 5 should provide a full description of each article. The description should be sufficient to relate it to the invoice description and to the description of the article in the international Harmonized System. Include the invoice number as shown on the commercial invoice or, if the invoice number is not known, include another unique reference number such as the shipping order number;
(7) Blocks 6 through 10 must be completed only when the block in question calls for information that is relevant to the preference group identified in block 4;
(8) Block 6 should state the legal name and address (including country) of the fabric producer;
(9) Block 7 should state the legal name and address (including country) of the yarn producer;
(10) Block 8 should state the legal name and address (including country) of the thread producer;
(11) Block 9 should state the name of the folklore article or should state that the article is handloomed, handmade or an ethnic printed fabric;
(12) Block 10, should be completed only when preference group identifier “8” and/or “H” is inserted in block 4 and should state the name of the fabric or yarn that is in short supply in the NAFTA or that has been designated as not available in commercial quantities in the United States;
(13) Block 11 must contain the signature of the exporter or producer or of the exporter's or producer's authorized agent having knowledge of the relevant facts;
(14) Block 15 should reflect the date on which the Certificate was completed and signed;
(15) Block 16 should be completed if the Certificate is intended to cover multiple shipments of identical articles as described in block 5 that are imported into the United States during a specified period of up to one year (
(16) The telephone and facsimile numbers included in block 17 should be those at which the person who signed the Certificate may be contacted; and
(17) The Certificate may be printed and reproduced locally. If more space is needed to complete the Certificate, attach a continuation sheet.
(a)
(b)
(a)
(b)
(1) Must be in writing or must be transmitted electronically pursuant to any electronic data interchange system authorized by CBP for that purpose;
(2) Must be signed by the exporter or producer or by the exporter's or producer's authorized agent having knowledge of the relevant facts;
(3) Must be completed either in the English language or in the language of the country from which the article is exported. If the Certificate is completed in a language other than English, the importer must provide to CBP upon request a written English translation of the Certificate; and
(4) May be applicable to:
(i) A single importation of an article into the United States, including a single shipment that results in the filing of one or more entries and a series of shipments that results in the filing of one entry; or
(ii) Multiple importations of identical articles into the United States that occur within a specified blanket period, not to exceed 12 months, set out in the Certificate by the exporter. For purposes of this paragraph and § 10.214(c)(15), “identical articles” means articles that are the same in all material respects, including physical characteristics, quality, and reputation.
(c)
(d)
(i) An importation of an article for which the port director has in writing waived the requirement for a Certificate of Origin because the port director is otherwise satisfied that the article qualifies for preferential treatment;
(ii) A non-commercial importation of an article; or
(iii) A commercial importation of an article whose value does not exceed US $2,500, provided that, unless waived by the port director, the producer, exporter, importer or authorized agent includes on, or attaches to, the invoice or other document accompanying the shipment the following signed statement:
I hereby certify that the article covered by this shipment qualifies for preferential treatment under the AGOA.
Check One:
(2)
(a)
(1) All records required to be made, kept, and made available to CBP by the importer or any other person under part 163 of this chapter;
(2) Documentation and other information regarding the country of origin of an article and its constituent materials, including, but not limited to, production records, information relating to the place of production, the number and identification of the types of machinery used in production, and the number of workers employed in production; and
(3) Evidence to document the use of U.S. materials in the production of the article in question, such as purchase orders, invoices, bills of lading and other shipping documents, and customs import and clearance documents.
(b)
(1) Must have records that explain how the importer came to the conclusion that the textile or apparel article qualifies for preferential treatment. Those records must include documents that support a claim that the article in question qualifies for preferential treatment because it is specifically described in one of the provisions under § 10.213(a). If the importer is claiming that the article incorporates fabric or yarn that originated or was wholly formed in the
(2) Must establish and implement internal controls which provide for the periodic review of the accuracy of the Certificate of Origin or other records referred to in paragraph (b)(1) of this section;
(3) Must have shipping papers that show how the article moved from the beneficiary country to the United States. If the imported article was shipped through a country other than a beneficiary country and the invoices and other documents from the beneficiary country do not show the United States as the final destination, the importer also must have documentation that demonstrates that the conditions set forth in § 10.213(d)(3)(i) through (iii) were met; and
(4) Must be prepared to explain, upon request from CBP, how the records and internal controls referred to in paragraphs (b)(1) through (3) of this section justify the importer's claim for preferential treatment.
5 U.S.C. 301; 19 U.S.C. 66, 1484, 1508, 1509, 1510, 1624.
IV. * * *
5 U.S.C. 301; 19 U.S.C. 1624; 44 U.S.C. 3501
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (FWS or Service), are revising the regulations that implement the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES or Treaty or Convention) by incorporating certain provisions adopted at the fourteenth and fifteenth meetings of the Conference of the Parties (CoP14 and CoP15) to CITES and clarifying and updating certain other provisions. These changes will bring U.S. regulations in line with new resolutions and revisions to resolutions adopted at meetings of the Conference of the Parties that took place in June 2007 (CoP14) and March 2010 (CoP15). The revised regulations will help us more effectively promote species conservation, help us continue to fulfill our responsibilities under the Treaty, and help those affected by CITES to understand how to conduct lawful international trade.
This rule is effective June 26, 2014. The incorporation by reference of the material listed in this rule is approved by the Director of the Federal Register as of June 26, 2014.
Robert R. Gabel, Chief, Division of Management Authority; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 212; Arlington, VA 22203 (telephone, (703) 358–2093; fax, (703) 358–2280).
As a Party to CITES, the United States is obligated to implement the Convention effectively. Over the 40-year history of CITES, online markets and other technological advances have made it possible to sell and ship wildlife anywhere in the world, and issues of wildlife use have grown more complex. As international wildlife trade evolves, so does implementation of the Convention. The CITES Parties meet every 2 to 3 years to vote on resolutions and decisions that interpret and implement the text of the Treaty and on amendments to the lists of species in the CITES Appendices. To keep pace with these changes, and ensure that U.S. businesses and individuals understand the requirements for lawful international trade in CITES specimens, it is necessary for us to periodically update our CITES-implementing regulations.
The final rule will bring U.S. regulations in line with new resolutions and revisions to resolutions adopted at meetings of the Conference of the Parties that took place in June 2007 (CoP14) and March 2010 (CoP15). Updates include: New or revised definitions for certain specimens in trade; clarified marking requirements for certain specimens in trade; amended restrictions for export of Appendix-I specimens bred in captivity for commercial purposes; eased restrictions on the allowed use of CITES specimens after import into the United States; updated requirements for humane transport of live specimens; and streamlined requirements for registered operations breeding Appendix-I animals for commercial purposes. The revised regulations will help us more effectively promote conservation of wildlife and plants in trade, help us continue to fulfill our responsibilities under the Treaty, and help those affected by CITES to understand how to conduct lawful international trade.
The Endangered Species Act designates responsibility for CITES implementation to the Secretary of the Interior, acting through the U.S. Fish and Wildlife Service. As the lead agency for implementation of CITES in the United States, the Service has promulgated regulations (50 CFR part 23) to inform the public about CITES requirements. We revise our CITES-implementing regulations as needed to ensure they are as up-to-date and accurate as possible.
CITES was negotiated in 1973 in Washington, DC, at a conference attended by delegations from 80 countries. The United States ratified the Treaty on September 13, 1973, and it entered into force on July 1, 1975, after it had been ratified by 10 countries. Currently 180 countries have ratified, accepted, approved, or acceded to CITES; these countries are known as Parties.
Section 8A of the Endangered Species Act, as amended in 1982 (16 U.S.C. 1531
We received 37 comments in response to the proposed rule, 34 of which were substantive. We received comments from individuals, organizations, and State natural resource agencies. Of the substantive comments we received, 22 were from falconers and falconer organizations, 3 were from State natural resource agencies and regional associations, and 9 were from non-governmental organizations not associated with falconry.
Several commenters recognized the importance of harmonizing U.S.
One commenter stated that, given our obligations under the ESA and CITES, the Service should take a conservative and precautionary approach in promulgating CITES regulations and generally choose protective measures over expanding trade. Another commenter stated that the original basis for CITES was that sustainable trade was a positive force for conservation of wildlife but that today this is no longer the case. The purpose of CITES is to ensure that international trade in wildlife and plants does not threaten the survival of species. We work with other CITES Parties to guard against over-exploitation of listed species due to international trade and believe that use of natural resources in a biologically sustainable and legal manner can support conservation efforts. We have developed our CITES-implementing regulations on this basis.
One commenter asserted that some of the proposed changes, if adopted, will have serious negative consequences for the safari-based conservation system in developing countries. The same commenter stated that the regulations are difficult to navigate and should be more user friendly and that some of the proposed changes are likely to result in technical violations and, therefore, seizure and forfeiture of trophies. We can see no basis for the commenter's assertions regarding impacts of the final rule in developing countries. We strive to make our regulations as clear and straightforward as possible and believe that this final rule lays out, in a user-friendly manner, what is required for lawful international trade in CITES specimens. However, we welcome specific suggestions for making the regulations easier to navigate.
We also received a number of general comments regarding international trade in raptors. One commenter stated that the Service has wrongfully treated domestically bred raptors as “wild taken” when they are in fact private property. Another commenter stated that the purpose of CITES is to control trade in wild specimens and that, except for the California condor, there are no wild Appendix-I raptors currently endangered or threatened with extinction. The commenter recommended that regulation of trade in Appendix-I raptors and all raptors from captive populations should be lessened or eliminated entirely.
As a Party to CITES we are obligated to regulate international trade in specimens of CITES-listed species (including Appendix-I raptors) in accordance with the provisions of the Convention. CITES regulates international trade in wildlife and plants, including parts, products, and derivatives, to ensure that trade is legal and does not threaten the survival of species in the wild. This does not mean that only wild-caught specimens are, or should be, regulated. Both wild-caught and captive-bred specimens are subject to CITES provisions, including provisions that specifically pertain to specimens that are bred in captivity.
Several commenters noted that possession of raptors in the United States is regulated at both State and Federal levels and is monitored by the Service's Migratory Bird Program. Therefore, they believe that U.S. regulation of international trade in raptors should be no more restrictive than what is required by CITES. Several commenters stated that unnecessarily restricting trade in captive-bred raptors increases the incentive to take raptors from the wild illegally, reduces genetic exchange, discourages captive breeding and conservation, increases costs, and makes U.S. breeders less competitive in the world market. One commenter noted that the falconry community has demonstrated great responsibility and value to the conservation of wild raptors.
We recognize and appreciate the contribution that the falconry community has made to the conservation of wild raptors. Our regulations do not go beyond what is required by CITES, and we do not believe that we are unnecessarily restricting trade in captive-bred raptors. With this final rule we have, in fact, eased restrictions on trade in Appendix-I specimens bred in captivity (see the preamble discussions for §§ 23.5 and 23.18) by revising the definition of “bred for noncommercial purposes” and allowing for the possibility of noncommercial trade from a commercial breeding operation whether or not it is registered with the CITES Secretariat.
One commenter asked why he is required to have a CITES permit to travel from the United States to Canada to hunt with his personally owned, captive-bred hybrid falcon since there is no trade or commerce involved. He also objected to having to cross at specific ports, pay fees, and have his bird inspected by FWS at border crossings. The activity described by the commenter is “trade” under CITES. “Trade” is defined in the Treaty as “export, re-export, import, and introduction from the sea.” Regulation of international trade in CITES species, including captive-bred and hybrid specimens, is required whether or not the export, re-export, import, or introduction from the sea is commercial. CITES regulates trade through a system of permits and certificates, and Parties establish an inspection process at ports of entry and exit as part of this system. Inspection officials at ports of entry and exit verify that CITES specimens are accompanied by valid CITES documents and take enforcement action when trade does not comply with the Convention. Inspection fees are outside the scope of this regulation and are therefore not addressed here.
In the following parts of the preamble, we discuss the substantive issues in sections for which we received public comments, and we provide responses to those comments. For an explanation of the changes to sections for which we did not receive comments, please see the preamble to the proposed rule (77 FR 14200, March 8, 2012).
50 CFR part 17 contains special rules for some species classified as “threatened” under the ESA. Most of the special rules that pertain to species that are also listed under CITES were written before the publication of our 2007 CITES regulations. Some of the rules included detailed CITES requirements because those requirements were not contained in 50 CFR part 23 prior to 2007. We believe it is more appropriate to include CITES requirements in 50 CFR part 23. Therefore, we have removed specific CITES requirements from the special rules in 50 CFR part 17 and, if they were not there already, inserted them into our CITES regulations in 50 CFR part 23. These changes, with a few exceptions described in our proposed rule (77 FR 14200, March 8, 2012), do not alter the requirements of the special rules because the requirements added to or already contained in 50 CFR part 23 are functionally the same as those currently contained in the special rules. Under the special rules, specimens may only be imported into the United States if the requirements in 50 CFR part 23 have been met.
One commenter supported the removal of detailed information on CITES provisions for personal and household effects from the special rules in part 17 and pointing the readers instead to the appropriate sections in part 23. Another commenter stated that he objected to the proposal to “shift some of the special rules in part 17 to part 23” and noted that part 17 and part 23 have different mandates and part 23 should only implement CITES provisions, nothing more. The commenter is correct that the regulations in part 17 implement provisions of the ESA and the regulations in part 23 implement CITES. This is, in fact, the reason we have made the changes proposed. We removed components of the special rules in part 17 that are CITES requirements and inserted them into the CITES regulations in part 23. The special rules will remain in part 17; only the CITES components of those rules have been moved to part 23. We believe this will make clear what is required under CITES (in 50 CFR part 23) for trade in a particular specimen and what is required under the ESA (in 50 CFR part 17). As stated above, these changes do not alter the requirements of the special rules because the special rules require that the provisions in 50 CFR part 23 must also be met. Likewise, as detailed in § 23.3, trade in specimens of CITES species that are also listed under the ESA or covered by other U.S. laws must meet both the CITES requirements in 50 CFR part 23 and requirements in other applicable U.S. regulations.
Upon further evaluation, we have decided to remove the table from § 23.2 and replace it with a simple statement. Although the table was intended to assist the reader in determining whether the regulations in part 23 apply to his or her activity we believe it may be causing confusion. Therefore, we are removing the table and adding in its place the following sentence: “If you are engaging in activities with specimens of CITES-listed species these regulations apply to you.”
Our current regulations contain definitions of “bred for noncommercial purposes” and “cooperative conservation program.” These terms were defined based on the interpretation of Article VII, paragraph 5, adopted at CoP11 in Resolution Conf. 11.14 and subsequently (until CoP14) contained in Resolution Conf. 12.10. Our definition of “bred for noncommercial purposes” specifies that a specimen only qualifies to be treated as bred for noncommercial purposes, and therefore eligible for an exemption certificate, if every donation, exchange, or loan of the specimen is between facilities that are involved in a cooperative conservation program. At CoP14, the Parties removed the definition of “bred for noncommercial purposes” from Resolution Conf. 12.10 (including the reference to cooperative conservation programs) because it was considered to be outside the scope of the resolution, which addresses the procedure for registering and monitoring operations that breed Appendix-I animal species for commercial purposes. The deletion of this paragraph from the resolution leaves it to Parties to adopt their own interpretation of Article VII, paragraph 5.
The changes adopted at CoP14, and our experiences since publication of our current regulations, led us to reconsider our definition of “bred for noncommercial purposes.” We are amending our definition of “bred for noncommercial purposes” by removing the requirement that the trade be conducted between facilities that are involved in a cooperative conservation program and, consequently, removing from our regulations the definition of “cooperative conservation program,” consistent with recent amendments to CITES resolutions. The change allows an Appendix-I specimen that was bred in captivity to be traded under a CITES exemption certificate when each donation, exchange, or loan of the specimen is noncommercial, including situations where the donation, exchange, or loan is not between two facilities that are participating in a cooperative conservation program. Our amendment to the definition is consistent with current CITES resolutions. (See also the discussion in the preamble for § 23.18.)
Several commenters opposed the removal of the definition of “cooperative conservation program” and the requirement that, to qualify for an exemption certificate, trade in a specimen bred for noncommercial purposes must be between facilities participating in a cooperative conservation program. One commenter believed this provision should be retained to promote species conservation and argued that we had not provided a sufficient explanation or justification for its removal. Another stated that linking breeding operations to conservation efforts is the least that should be required of those engaged in trade of captive-bred specimens of Appendix-I species.
We are removing this requirement because we believe it is overly restrictive. While we agree with the commenters that it is important to promote species conservation, we understand that it is not always feasible for a breeding operation to participate in or support a recovery activity in cooperation with a range country, sometimes due to political realities or civil unrest, for example. In addition, there are circumstances under which Appendix-I animals may be bred-in-captivity for noncommercial purposes (including, for example, noncommercial breeding by hobbyists) where we do not believe it is reasonable to prohibit trade under Article VII, paragraph 5, solely because the breeding facility is not participating in a cooperative conservation program. We will continue to scrutinize this trade carefully, to ensure that each donation, exchange, or loan of a specimen traded under Article VII, paragraph 5, is noncommercial. Another commenter asked that, if we delete the reference to cooperative conservation programs as proposed, that we amend the definition of “bred for noncommercial purposes” by adding to the end the phrase “where the purpose is directed towards noncommercial use.” We have declined to accept this suggestion as we consider it to be redundant.
Another commenter stated that we should remove both the definition of “cooperative conservation program” and “bred for noncommercial purposes” since neither of these terms is currently defined by CITES, and retaining or modifying a definition not used by CITES goes beyond CITES provisions and the part 23 mandate. We disagree that we should only provide definitions for terms defined by CITES and that doing so is beyond the part 23 “mandate.” The purpose of part 23 is to explain, as clearly as possible, how we implement the Treaty and what is required for legal international trade in CITES-listed species. Where we feel it is useful, we have provided definitions for terms used in the regulations to clarify the intended meaning in this context.
Two commenters suggested that falconry be specifically cited as an example of an activity that would qualify as “bred for noncommercial purposes.” We have not accepted this suggestion. Although there may be situations in which falconry birds are bred for noncommercial purposes, this is not always the case. Birds used in falconry are also bred and traded for economic gain, including for profit.
Two commenters expressed concern that the proposed changes to the definition of “coral fragments” will allow a broadening of the subset of coral specimens that could be considered fragments, and therefore exempt from CITES provisions. The commenters suggested that we substitute the word “all” for “any” in the definition, so that it reads “. . . between 2 and 30 mm measured in all directions.” It was our intent, and the intent of the Parties at CoP15, to limit “coral fragments” to specimens smaller than 30 mm. We believe that the change proposed by the commenters further clarifies that intent. We agree that “all” is more precise and, to be consistent, have made the suggested change to the definitions of both “coral fragments” and “coral sand.”
Two individual State natural resource agencies and one State natural resource agency organization endorsed this change and stated that the new definition more closely describes the way in which their alligator programs operate and will allow them to export alligator skins produced in their States under the “R” source code. Two commenters strongly objected to the incorporation of the new definition into U.S. regulations and stated that ranching is merely a subset of wild take. Another commenter asked us to provide further rationale for incorporating the new definition into our regulations and noted that it is unclear how adoption of the new definition may impact protected species in the wild and, in addition, that allowing wild-sourced specimens to be traded as “ranched” will make it impossible to track the full impact of wild collection. The commenter urged us to maintain a clear distinction between specimens derived from a ranching operation in accordance with Resolution Conf. 11.16 (Rev. CoP15) and wild-sourced specimens.
We agree with those commenters who supported incorporation of the new definition of source code “R” into our regulations because it more accurately describes production systems often employed for certain species, such as the American alligator. We also agree with the comment suggesting that ranching production is associated with wild harvest. We note that, before a permit can be issued for specimens entering international trade as a result of either ranching production or wild harvest, a non-detriment finding must be made. Thus, the Scientific Authority will evaluate the impact of both of these activities on wild populations. We also believe it is important to have consistent application and implementation of CITES terms, which we intend to achieve by incorporation of the revised definition.
Another commenter stated that this provision would make it unlawful to use any CITES specimen for any purposes contrary to conditions imposed under § 23.55 and that this is too broad, as § 23.55 only applies to Appendix-I and certain Appendix-II specimens. The commenter seems to have misinterpreted the provisions in § 23.55. The table in § 23.55 lays out the allowed use of any CITES specimen after it has been imported into the United States. The vast majority of CITES specimens (including most Appendix-II and -III specimens) may be used for any lawful purpose after import, and this is stated in paragraphs (d), (e), and (f) of § 23.55. However, the import and subsequent use of many Appendix-I specimens and certain Appendix-II specimens may be only for noncommercial purposes, and this information is also provided in § 23.55. We are not adding new prohibitions here. The restrictions on use after import of certain CITES specimens have been in place since 2007. We simply want to clarify that violation of any of the provisions of 50 CFR part 23 is unlawful.
One commenter stated that, if an imported raptor was injured or for some reason unable to perform as a falconry bird, these changes would prevent the use of the raptor for breeding because FWS considers breeding to be commercial. We reiterate that we are not adding new prohibitions with regard to use after import. In fact, this final rule appropriately narrows the current restrictions that have been in place since 2007 (see the preamble discussion and the regulatory text for § 23.55). In addition, we do not consider all breeding to be commercial and refer the commenter to the discussions in the preamble for §§ 23.5 and 23.18 with regard to trade in Appendix-I specimens bred for commercial and noncommercial purposes.
As noted previously, Article VII, paragraph 4, of the Treaty states that specimens of Appendix-I wildlife species bred in captivity for commercial purposes shall be deemed to be specimens of species included in Appendix II. Such specimens can therefore be traded without the need for an import permit. Our regulations required commercial breeders of Appendix-I wildlife to be registered with the CITES Secretariat in order to export Appendix-I specimens, regardless of the purpose of the import. The decision tree in § 23.18 asks, at several points, whether the export of the specimen is for noncommercial purposes. However, because of the way the decision tree is structured, export of specimens bred in captivity (according to CITES criteria) at commercial operations that are not registered with the CITES Secretariat was prohibited, even in small numbers when the intended use of the specimens in the importing country is noncommercial.
Based on our experience since publication of our regulations in 2007, we have concluded that this interpretation is overly restrictive. The exemptions contained in Article VII allow alternatives to the procedures contained in Articles III, IV, and V for trade in CITES-listed species when certain criteria are met. However, if an Appendix-I specimen does not qualify for an exemption under Article VII, it should not, solely on that basis, also be deemed ineligible for a permit or certificate under Article III. For this reason, we are amending our regulations to allow for this possibility. We are amending the decision tree in § 23.18 by eliminating the boxes that ask if the export is for noncommercial purposes, which eliminates the requirement that commercial operations breeding Appendix-I species must be registered with the Secretariat to export specimens under any circumstances. We believe this change reflects the appropriate implementation of Articles III and VII.
One commenter stated that the CITES Secretariat has confirmed that an Appendix-I specimen can be exported from a commercial breeding facility, not registered with the Secretariat, for a noncommercial purpose. We agree with this interpretation and note that our revisions to this section remove the requirement that commercial operations breeding Appendix-I species must, in all cases, be registered with the Secretariat to export their specimens.
Several commenters opposed this change and asserted that commercial breeders should not be allowed to participate in noncommercial trade. They expressed concern that allowing such trade would cause enforcement difficulties by blurring the distinction between commercial and noncommercial facilities. One commenter stated that all facilities breeding Appendix-I specimens should be registered with the CITES Secretariat to facilitate national and international oversight and that commercial facilities that are not registered should not be allowed to export Appendix-I specimens. The commenter argued that our proposed revisions seem to be contrary to the intent of CITES, which is to limit the trade in Appendix-I specimens for commercial purposes.
We agree that trade in Appendix-I specimens must be subject to particularly strict regulation, as stated in the Treaty, and we will continue to monitor the trade in Appendix-I specimens very carefully. The Treaty does allow for trade in Appendix-I specimens that are bred in captivity for commercial purposes, and we implement this provision by requiring that operations breeding Appendix-I specimens for commercial purposes are registered with the CITES Secretariat, as agreed by the Parties in Resolution Conf. 12.10 (Rev. CoP15). The Treaty also allows for trade in Appendix-I specimens bred in captivity for noncommercial purposes, and we recognize that there are circumstances under which a commercial breeding operation may engage in trade where each donation, exchange, or loan of a specimen is noncommercial. We will continue to scrutinize such trade and will exercise our right and responsibility under the Treaty to verify whether the Management Authority of the importing country has made the appropriate determination of whether an import is not for primarily commercial purposes.
Several commenters suggested that language be added to the decision tree to indicate that falconry and propagation for falconry are considered “primarily noncommercial.” We do not agree that falconry and breeding of birds for use in falconry can always be considered activities that are “primarily noncommercial” and have therefore declined to accept this suggestion. Some commenters also recommended that we adopt a policy that five or fewer birds exported for falconry purposes will generally be considered noncommercial trade. We have not adopted this suggestion. Determinations regarding the commercial or noncommercial nature of a proposed activity are made on a case-by-case basis after review of all relevant factors (see § 23.62).
Several commenters expressed their belief that birds bred for falconry should qualify for a bred-in-captivity certificate and be traded under the source code “C” and not “F.” They stated that source code “F” is not appropriate for U.S. captive-bred raptors because it implies possible impacts to wild populations. One commenter also noted that use of source code “F” creates conflict with other countries, particularly in Europe, that do not implement Resolution Conf. 12.10 (Rev. CoP15).
The Parties have agreed, in Resolution Conf. 12.10 (Rev. CoP15), that the exemption in Article VII, paragraph 4, should be implemented through the registration by the Secretariat of operations that breed specimens of Appendix-I species in captivity for commercial purposes. Such specimens are “deemed to be specimens of species included in Appendix II” and therefore can be traded under an export permit, without the need for an import permit. Resolution Conf. 12.3 (Rev. CoP15) states that source code “D” should be used on permits for Appendix-I animals originating at an operation registered with the Secretariat and exported under the provisions of Article VII, paragraph 4.
Article VII, paragraph 5, of the Treaty provides that specimens that are bred in captivity may be traded under an exemption certificate (see § 23.41). As noted previously, although the Treaty does not use the term “bred for noncommercial purposes” in Article VII, paragraph 5, the Parties have agreed to use this term as the intended meaning of paragraph 5 because Article VII, paragraph 4, addresses specimens bred for commercial purposes. Resolution Conf. 12.3 (Rev. CoP15) states that source code “C” should be used on permits for Appendix-I animals bred in captivity and exported under the provisions of Article VII, paragraph 5.
We implement these provisions as follows. The exemptions provided in Article VII, paragraphs 4 and 5, allow for trade in Appendix-I specimens without the need for an import permit when the specimens have been bred in captivity and certain conditions are met. To qualify for these exemptions, an Appendix-I animal must have been bred in captivity, in accordance with CITES criteria in Resolution Conf. 10.16 (Rev.) and U.S. regulations in § 23.63, and it must have been either: (1) Bred for commercial purposes at a facility registered with the CITES Secretariat (Article VII, paragraph 4); or (2) bred for noncommercial purposes (Article VII, paragraph 5). Specimens exported under Article VII, paragraph 4 (i.e., those bred for commercial purposes at a facility registered with the CITES Secretariat), are “deemed to be” Appendix-II specimens, and we therefore issue an export permit with the source code “D.” For specimens exported under Article VII, paragraph 5 (i.e., those bred in captivity for noncommercial purposes), we issue a bred-in-captivity certificate with the source code “C.” When an Appendix-I specimen bred in captivity is exported under an exemption document (an export permit with a source code “D” or a bred-in-captivity certificate with a source code “C”), no import permit is required.
We also allow for trade in Appendix-I specimens produced in captivity that do not qualify for the exemptions in Article VII. However, such specimens must be traded under Article III of the Treaty, and an import permit is required. These specimens are given the source code “F,” because neither source code “C” nor “D” applies.
One commenter noted that Article VII, paragraph 4, of the Treaty states that specimens of Appendix-I species bred or propagated for commercial purposes shall be deemed to be specimens of species included in Appendix II and questioned why we stated in the proposed rule that such specimens are still included in Appendix I. The commenter stated that there is no CITES provision that a specimen bred at a registered facility and “deemed to be” Appendix II for export reverts back to Appendix I on arrival in the importing country.
The language in Article VII, paragraph 4, stating that Appendix-I specimens bred in captivity are deemed to be specimens of species included in Appendix II allows such specimens to be traded commercially. It means that a Management Authority may grant an export permit or a re-export certificate without requiring the prior issuance of an import permit. It does not mean that the species has been transferred from Appendix I to Appendix II. As we indicated in the proposed rule, the species remains listed in Appendix I, and therefore the specimens are not eligible for any exemption limited specifically to an Appendix-II species or taxon, such as less-restrictive provisions for personal and household effects.
Two commenters strongly supported inclusion of the three additional circumstances under which we may seek verification of a CITES document. Another commenter urged us to include two more circumstances related to permits authorizing the export of specimens subject to a quota. Another commenter did not see a reason to restrict the Management Authority to a formal list of circumstances under which it may request verification of a CITES document and noted that any indication of wrongdoing should give the Management Authority the authority to verify the authenticity of a permit. We agree that there may be more circumstances, in addition to those listed in § 23.26(d), under which we may request verification of a CITES document from the CITES Secretariat or a foreign Management Authority. The circumstances listed in § 23.26(d) are provided as common examples, and the list is not intended to be exhaustive. We direct the commenters to the first sentence of that paragraph (d), which indicates that such circumstances include, but are not limited to, those listed in § 23.26(d).
One commenter was concerned that the proposed changes regarding permits where the quantity had not been validated upon export do not go far enough. He suggested that we incorporate the language adopted at CoP15, in Resolution Conf. 12.3 (Rev. CoP15), which states that Parties “should liaise” with the exporting country's Management Authority and consider any “extenuating circumstances” to determine the acceptability of the document in question. We have declined to accept this suggestion as we consider it to be redundant. The text in § 23.26(d) informs the public of circumstances under which we may request verification of a CITES document; lack of validation is one of those circumstances.
One commenter expressed dissatisfaction with the process for renewing a certificate of ownership for personally owned, live wildlife. The commenter objected to having to complete an entire application when only a few items needed to be updated and to having to submit his original certificate along with the application for renewal, thus preventing cross-border travel while awaiting issuance of the new certificate. In addition, the commenter noted that having the renewed certificate issued before the end of the period of validity of his existing certificate effectively shortens the period of validity to less than 3 years. He also considered the estimated time of 30 minutes for completion of Form 3–200–64 to be “overly conservative” and stated that “a more realistic, but still conservative estimate” would be at least 60 minutes.
Form 3–200–64, the application form for issuance of a certificate of ownership for personally owned live wildlife, asks for detailed information regarding the animal to be covered under the certificate. When a certificate holder wishes to renew a certificate of ownership, however, he or she should complete and submit Form 3–200–52, the application for re-issuance or renewal of a permit. This is a simplified application on which the applicant can certify that there have been no changes to the original application or that there have been changes as noted on an attached page. We ask that individuals allow 30 to 60 days for processing of applications, and we do require submission of the original certificate before we will issue a new one. If applying well in advance (more than 60 days before expiration of the certificate), an applicant could submit a copy and continue to use the original certificate, keeping in mind that he or she must return to the United States before the certificate expires. Once travel is completed and the animal has re-entered the United States, the original certificate must be returned to the Management Authority. As stated above, we will not issue a new certificate until we have received the original certificate. We thank the commenter for his input regarding the length of time needed to complete Form 3–200–64. We are in the process of reviewing all of our application forms and will take his comments into consideration during that process.
Resolution Conf. 12.10 (Rev. CoP15) provides guidelines for registering and monitoring operations that breed Appendix-I animals for commercial purposes. Section 23.46 implements the resolution by establishing a procedure for operations that breed Appendix-I animals for commercial purposes to become registered with the CITES Secretariat. At CoP15, the Parties adopted changes to the registration process to address the sometimes lengthy delays that can occur when an objection is raised regarding an application to register a breeding facility. We are revising § 23.46(b) to incorporate changes to the registration process adopted at CoP15, and we expect that these changes will significantly reduce potential delays.
Under Resolution Conf. 12.10 (Rev. CoP15), registered commercial breeding operations are to be monitored by the Management Authority, in collaboration with the Scientific Authority, and the Management Authority is to advise the CITES Secretariat of any major change in the nature of an operation or in the products it is producing for export. Our regulations include an annual reporting requirement to facilitate monitoring of registered operations. We are eliminating the annual reporting requirement in § 23.46 and establishing instead a process for renewal of registrations every 5 years. The registration renewal is intended to be less burdensome for the registrants, yet will allow us to monitor these facilities and identify major changes in their operating practices. One commenter supported these changes.
We received a number of comments from falconers and falconry organizations regarding our proposed requirement for renewal of registrations for commercial breeding operations for Appendix-I wildlife. Many of these commenters expressed either opposition or very limited support for requiring renewal of registrations. Five commenters noted that there is no requirement under CITES for renewal of registrations and expressed their belief that, once a facility is registered, the registration should not expire. While Resolution Conf. 12.10 (Rev. CoP15) does not specifically recommend renewal of registrations or expiration dates for registrations, it does state that Parties should monitor the management of each registered captive-breeding operation under its jurisdiction and advise the CITES Secretariat of any major changes in the operation. It is left to the Parties to determine how they will accomplish such monitoring. Our regulations (§ 23.46(e)(3)) require annual reporting by registered facilities to allow us to monitor the management of these operations to ensure that they continue to meet the criteria for registration. We are eliminating the annual reporting requirement and establishing in its place a 5-year renewal process that we believe will reduce the burden on both the registered operations and the Service while providing for the monitoring that is required under CITES. We also note that there is a provision in Resolution Conf. 12.10 (Rev. CoP15) for removing breeding operations from the Secretariat's registry, particularly if they fail to continue to meet requirements, so registrations are not necessarily meant to continue in perpetuity.
Some of the commenters stated that the renewal requirement would create a significant burden on registered operations. They noted that raptor breeders are already monitored by the Service, through the Migratory Bird Program (MBP), and therefore the process for renewal of a registration would be redundant. They argued that the annual report and individual transactions forms provided to MBP should suffice for any monitoring requirement for CITES. Two commenters were more supportive of a simple registration update form and associated fee, if the required data submission was simply a reference to the current MBP data. One commenter suggested that if renewal of a registration is mandated by the Service, a one-page application with accompanying photocopies of the past five annual reports from the operation to the MBP should be all that is required.
The regulations in § 23.46, regarding the process for registering a commercial breeding operation for Appendix-I wildlife, apply to operations breeding any Appendix-I species, not just raptors and other falconry birds. Although it is true, as one commenter has noted, that all of the U.S. facilities currently registered with the CITES Secretariat are breeding raptors, we do not anticipate that this will always be the case. Therefore, we need to establish registration and reporting procedures that will work not just for facilities breeding raptors, but for any commercial breeding operation that may be registered in the future. It is not our intention, however, to increase the burden for raptor breeders.
We understand that U.S. raptor breeders are regulated under the Migratory Bird Treaty Act (MBTA) and must provide reports to the MBP on specific activities related to the breeding of native raptors (as defined in part 21 of this subchapter). It is also true, however, that not all CITES-listed, Appendix-I raptors are covered by the MBTA. There is no requirement for an operation breeding birds that are not covered by the MBTA (including raptors that are not native raptors under the definition in part 21) to provide reports to the MBP on activities associated with those birds. We agree that, for operations breeding native raptors, documents submitted to the MBP would include most, if not all, of the information needed for the renewal of a CITES registration. If an applicant requesting renewal of a registration is breeding native raptors and reporting to the MBP, he or she can inform us on the application for renewal, and we will obtain copies of the relevant documents, covering the past 5-year period, from MBP. A registered operation that is breeding Appendix-I species that are not covered by the MBTA, and therefore not covered in reports provided to the MBP, will need to include updated information relevant to those species in its renewal application.
Four commenters that opposed renewal of registrations expressed concern about whether the Management Authority could process registration applications in a consistent and timely manner. They asserted that the Service has underestimated the cost and negative effect this requirement will have on both the breeders and the Management Authority and stated their belief that registration renewal will put registered breeding operations at risk every 5 years due to potential delays in the renewal application process.
We are establishing a simplified renewal process that will be much less burdensome and take much less time than the initial registration process. We expect that most renewals will be completed within 30 to 60 days, provided that the renewal application contains all of the information requested. The criteria for renewal are the same as the criteria for registration of a new operation. However, unlike the process for initially registering a commercial breeding operation, the renewal process does not require us to contact the CITES Secretariat, and there will therefore be no consultation with other CITES Parties, as required for the initial registration. The same application used to request registration (Form 3–200–65) will be used for renewals. Applicants for renewal will not need to respond to all of the questions. Instead, they will be asked to identify any changes in their operation, such as new breeding facilities or
One commenter was opposed to the language in § 23.46(f), which states that requests for renewal of a registration should be submitted at least 3 months before the registration expires. The commenter asserted that, in the absence of such a provision, the registration would remain in effect until renewed or denied, if the application was received at any time before expiration.
Although we recommend, in § 23.46(f), that applicants submit requests for renewal at least 3 months before the registration expires, we do not require that they do so. We included this language to encourage registrants to apply for renewal early enough so that their registration does not expire while we are reviewing their renewal request, thus disrupting their ability to export specimens for which they are registered. The commenter may be referring to language in the Service's general permitting regulations in 50 CFR part 13. Under § 13.22, if an application to renew a permit is submitted at least 30 days before the permit expires, continuation of some permitted activity is allowed, subject to certain conditions, until the Service acts on the request for renewal. However, this provision does not apply to any permitted activities authorized under CITES (see § 13.22(c)(3)). Registrations will now have an expiration date and will be void after that date. To avoid disruption of permitted activities, registrations must be renewed before the expiration date. As stated earlier, we do not anticipate that the renewal process will take longer than 30 to 60 days, provided we have received all of the necessary documentation. The recommendation that an application for renewal of a registration be submitted 3 months before the registration expires is intended to allow us time to make sure the application is complete, including obtaining information from MBP (if necessary), to help ensure that the facility can continue operations without disruptions or delays.
One commenter questioned why the Service was proposing to eliminate the annual reporting requirement for CITES-registered operations breeding Appendix-I specimens and replace it with a 5-year renewal process. The commenter stated that we had not explained why the information currently required on an annual basis was no longer relevant. Another commenter supported a requirement that registrations be renewed, but urged us to limit the length of time a registration is valid to 3 years, instead of 5, stating that conditions at captive breeding facilities can change dramatically over a 5-year period. A third commenter asserted that neither the current annual reporting requirement nor the proposed registration renewal are sufficient to monitor registered facilities and urged us to engage in “unannounced compliance checks” on a regular basis.
We expect that the same information provided in an annual report will be provided, for a 5-year period, in a renewal application. Consolidation and submission of information on a 5-year cycle will give us with the information necessary for monitoring activities at registered operations while at the same time reducing the time and resources needed both by the Service, for collecting and reviewing reports, and by the registered operations, for preparing and submitting reports. Further, by establishing a renewal process, and therefore an expiration date, for registration of commercial operations, we will be able to more easily and formally address any potential problems that might be identified.
We are establishing a 5-year registration (instead of a 3-year registration as recommended by the commenter) based on our experience, since 2007, with trade from CITES-registered breeding operations in the United States. Once registered, an operation must still obtain CITES documents for any specimens it wishes to export. The information provided in an application for an export permit gives us an indication of changes that may be occurring at a registered operation and gives us some understanding of the current status of operations at the facility. If, in reviewing permit applications, we believe that further evaluation of the operation is warranted, we have the authority to do so, including conducting inspections of the facility. Under newly designated § 23.46(e)(3) and § 13.21(e)(2), anyone obtaining a CITES permit or authorization agrees, as a condition of their permitted activity, to allow the Service to enter their operation at any reasonable hour to inspect wildlife held or to inspect, audit, or copy applicable records. However, due to the likelihood that we will be in contact with a registered operation multiple times over the course of their registration, we do not believe the additional burden on the Service or the registrant of a 3-year renewal cycle is necessary or beneficial. If we encounter problems or difficulties associated with the 5-year renewal cycle for registrations, we will reevaluate the process and propose changes.
We also received comments on this section that were not related to the changes we had proposed regarding the process for initial registration or the renewal of existing registrations. Two commenters expressed concern about the way in which we implement the requirement in § 23.46(d)(2) that a breeding operation must provide sufficient information for us to determine that its parental stock was legally acquired. They stated that the Service asks for documentation that founding stock, not the parental (breeding) stock, at the facility was legally removed from the wild or imported into the United States. These commenters argued that Resolution Conf. 12.10 (Rev. CoP15) does not require this level of documentation and that it is an unreasonable burden on breeding operations, especially since “there is no laundering of wild-taken young raptors going through breeding projects.”
The terms “parental stock” and “founder stock” are sometimes used interchangeably. We define “parental stock” in § 23.5 as “the original breeding or propagating specimens that produced the subsequent generations of captive or cultivated specimens.” We believe that this definition is consistent with the Treaty and with CITES resolutions. When an applicant is asked to provide documentation on the legal acquisition of the parental stock, we are asking that they show that the specimens that were either removed from the wild or imported into the United States to establish a breeding operation were legally obtained. We agree with the commenters that breeding operations are not likely to be laundering illegally obtained specimens. We attribute this, at least in part, to the oversight and documentation requirements that have been established to ensure that such activities do not occur.
Two commenters stated that we should eliminate the existing requirement for a registered facility to
One commenter supported the proposed changes to § 23.52. Another commenter was opposed to all of the changes proposed for this section and disagreed with our suggestion that the criteria for issuance and acceptance of replacement documents should be more closely aligned with the criteria for issuance and acceptance of retrospective documents. The commenter expressed concern that for replacement permits for recreational hunting trophies “the conditions and timelines will be challenging to fulfill” and stated that we should propose regulations to facilitate the issuance of retrospective and replacement permits instead of making it an “onerous undertaking.”
We agree that the criteria for issuance and acceptance of replacement CITES documents are, and should be, different from those for retrospective CITES documents, and our regulations reflect those differences. We note that in the preamble to Resolution Conf. 12.3 (Rev. CoP15), the Parties recognize that “the efforts of importing countries to fulfill their obligations under Article VIII, paragraph 1 (b), may be seriously obstructed by the retrospective issuance of permits or certificates for specimens having left the exporting or re-exporting country without such documents” and that “the retrospective issuance of permits and certificates has an increasingly negative impact on the possibilities for properly enforcing the Convention and leads to the creation of loopholes for illegal trade.” With regard to replacement documents, the resolution states that, when a permit or certificate has been cancelled, lost, stolen, or destroyed, the issuing Management Authority should “immediately” inform the Management Authority of the country of destination (as well as the Secretariat for commercial shipments). Based on our experience since the publication of our 2007 CITES regulations, we identified a need to clarify what is required for issuance and acceptance of a replacement document. As we noted in our proposed rule, we have experienced situations in which importers or their agents have attempted to submit “replacement” documents when no document had ever been issued or when the original document was invalid. In addition, individuals have significantly delayed submission of required documents for clearance of a shipment while they tried to obtain a replacement document without our knowledge. We believe the revised provisions in this section will help individuals understand the process for obtaining a replacement document if their CITES document has been lost, damaged, stolen, or accidentally destroyed and will help us to meet our obligations under the Treaty.
Since publication of our regulations in 2007, we have given further
We have considered the individual who may, for example, have imported Appendix-II specimens that had no restrictions on their domestic use and be lawfully utilizing the specimens as part of a commercial breeding operation. Under our current regulations, he or she may be precluded from continuing such activities if the species is subsequently listed in Appendix I. We do not believe it is necessary for ensuring the conservation and sustainable use of the species to retroactively apply current import/export restrictions to domestic activities involving specimens that were legally imported prior to the imposition of those restrictions. Therefore, where an individual can clearly demonstrate that his or her specimens were legally imported prior to the Appendix-I listing, we will not treat those specimens as specimens of an Appendix-I species with regard to their use within the United States.
Consistent with our current regulations, we continue to believe that restrictions on the allowed use after import of specimens of Appendix-I species may be relaxed if the status of the species improves and it is subsequently listed in Appendix II or removed from the Appendices. If the status of a species has changed so that it no longer requires the strict protections (including the prohibition on commercial trade) provided by an Appendix-I listing, and it is not listed under the ESA, we see no conservation need for requiring that specimens imported when the species was listed in Appendix I continue to be used only for noncommercial purposes. Other applicable laws, however, may continue to restrict use of the specimen.
Under this final rule, if an Appendix-II specimen is imported with no restrictions on its use (i.e., it is not protected under the ESA and it is not subject to an annotation requiring that it be used only for noncommercial purposes) and the species is subsequently transferred to Appendix I, if you can clearly demonstrate that your specimen was imported prior to the Appendix-I listing, use of the specimen within the United States will not change (i.e., it will not be restricted to noncommercial use) with the change in the status of the species under CITES. As is currently the case, the allowed use of an Appendix-I specimen imported for noncommercial purposes may change if the species is subsequently transferred to Appendix II or removed from the Appendices. In such a case, the allowed use of the specimen within the United States will be determined by the current listing status of the species, not the status of the species at the time it was imported.
One commenter opposed any regulation of the use after import of CITES specimens, stating that it is beyond the control of CITES. The same commenter suggested that trophy trade “deserves preferential treatment” because of its conservation value and lack of biological consequence after lawful import. The commenter stated that “unnecessary restrictions on long-term use have a negative effect on the trade and the benefits of the trade.”
Other commenters expressed support for restricting the use after import of certain specimens and for some of the proposed changes. One commenter stated that we should retain the current restriction on domestic trade of all Appendix-I specimens, including those that were imported into the United States as Appendix-II specimens. Another commenter expressed support for our current treatment of specimens imported when the species was listed in Appendix I and then subsequently transferred to Appendix II (which we did not propose to revise). The commenter stated that allowing a change in treatment of such specimens within the United States was pragmatic from an enforcement point of view and noted that the change in listing status would mean that the previous conservation concerns would no longer exist. However, the same commenter was opposed to our proposed change in treatment for specimens imported when the species was listed in Appendix II and subsequently transferred to Appendix I, stating that it does not make sense to change the rules for one category on the basis of conservation and enforcement and then not apply the same logic to another category. The commenter believes that allowing an individual to demonstrate that a specimen was imported before the species was transferred to Appendix I creates a loophole for illegal use of wildlife. One commenter, although not necessarily opposed to the proposed revisions, questioned the logistics of implementing and enforcing the changes. Two commenters urged us to retain the option of restricting domestic commercial use of specimens if there are reasonable grounds to conclude that doing so is necessary for the conservation of the species. One of them cautioned that domestic markets for specimens of Appendix-I species can be strong drivers of poaching and illegal trade.
This issue has been the subject of considerable discussion. The changes to this section are intended to be a balance of fairness to individuals who have complied with the law in their acquisition of CITES-listed specimens and the conservation needs of listed species. We recognized in our 2007 regulations that there is no conservation benefit to be derived from a prohibition on the commercial use of specimens imported when the species was listed in Appendix I or in Appendix II with an annotation prohibiting commercial use after the species has been transferred to Appendix II or the annotation removed—or possibly delisted altogether. We did not propose changes to the regulations with regard to these specimens because it is not reasonable to prohibit the commercial use of such specimens, but allow the import and commercial use of other specimens of the same species, as would be possible under an Appendix-II listing or if the species has been removed from the Appendices altogether.
Upon further reflection, we conclude that it would similarly not result in a conservation benefit to disallow the commercial use within the United States of specimens imported when the species was listed in Appendix II if the species is subsequently transferred to Appendix I. We have further evaluated this section since publication of our 2007 regulations and do not believe there is a basis to retrospectively apply restrictions on the use of specimens imported when the species was listed in Appendix II because the required findings for allowing the trade in those specimens were made prior to import and did not include a determination regarding commerciality. We consider this to be comparable to the exemption in Article VII, paragraph 2, for pre-Convention specimens, which allows a specimen of an Appendix-I species to be
It is important to emphasize that our regulations in § 23.55 apply only to use within the United States. If a species has been transferred from Appendix II to Appendix I, specimens imported when the species was listed in Appendix II become Appendix-I specimens and international trade in such specimens must be in accordance with the Treaty requirements for trade in Appendix-I specimens. It is only the allowed use within the United States that does not change under our revised regulations.
We do not believe that it should be difficult for individuals engaged in commercial activities to provide the documentation necessary to demonstrate that their specimens were acquired prior to the Appendix-I listing. However, we will assess these situations carefully to determine if this change results in undue enforcement challenges.
We are making minor changes to the text in the proposed rule for the table in § 23.55, for clarity and precision. We added the phrase “without an annotation for noncommercial purposes” immediately following “Appendix II” in paragraph (c) of § 23.55, to draw a clear distinction between the Appendix-II specimens covered by paragraph (b) and those covered by paragraph (c). We also further revised the text in the right-hand column of the table in § 23.55 associated with paragraphs (a), (b), and (c) to make it easier to read and understand.
We received support for the amendment of our definition of “CITES furbearers” from two commenters who believed it to be a sensible change and noted that it would facilitate possible future requests from States for CITES export approvals if the legal and conservation status of listed species changes. One of these commenters recommended that we also include the American black bear in our definition of “CITES furbearer” in this section. Although we are not necessarily opposed to this suggestion, we have not received requests from States wishing to develop a CITES export program for black bear. If there are States interested in developing such a program in the future, we will work with them to explore the possibility of including the American black bear in our definition of “CITES furbearers” and creating a CITES export program for black bear.
Two commenters supported the amendments to this section consistent with the changes to Resolution Conf. 11.12 (Rev. CoP15). However, they and
As for all CITES species, before we can issue a CITES document to allow export of CITES furbearer skins or crocodilian skins, we must find that the specimens were legally acquired and that the export is not detrimental to the survival of the species. We have worked with States and Tribes to develop procedures that allow us to make the necessary findings for native species programmatically (i.e., at the State or tribal level) rather than on a permit-by-permit basis. When States and Tribes have established a management program that ensures sustainable harvest and they have the means to identify or mark specimens that have been legally taken under their system, we are able to make findings for specimens harvested within their jurisdiction, thereby approving their program. A tag issued by the State or Tribe demonstrates that a particular specimen was harvested under an approved program and that the appropriate findings have been made. As noted previously, the regulations are not intended to allow for the use of CITES replacement tags in place of tags that have been deliberately removed to facilitate processing. We are always willing, however, to work with State and tribal governments to explore ways to improve our established procedures. The comment regarding limitations on the proportion of skins with replacement tags in a particular shipment appears to be a reference to the special rule for threatened crocodilians (50 CFR 17. 42(c)) under the ESA. The special rule states that, if a shipment of threatened crocodilian skins contains more that 25 percent replacement tags, the U.S. Management Authority will consult with the Management Authority of the re-exporting country before clearing the shipment (see 50 CFR 17.42(c)(3)(i)(C)). We note that this provision applies only to threatened crocodilians (as defined in § 17.42(c)(1)(i)) and not to the American alligator.
The same two commenters suggested that we delete the second sentence in § 23.70(e)(2), which describes information to be included on a marked American alligator skull. With this sentence deleted, § 23.70(e)(2) would read, “Each American alligator skull must be marked as required by State and tribal law or regulation.” They argue that this would allow each State or Tribe to determine whether marking of individual skulls is necessary. We fully support this suggestion. Marking of skulls is not a CITES requirement, and it was included in our regulations because we were aware that some States and Tribes required that American alligator skulls be marked. We agree that it is appropriate to allow each State and Tribe to decide whether or not to require marking of skulls and are incorporating the recommended revision into this rule.
These commenters also requested that we remove the requirement in § 23.70(f)(1) that crocodilian parts, other than meat and skulls, must be packed in transparent, sealed containers. They note that certain parts, particularly alligator backstrips, are large and heavy and would be more easily transported in sealed wooden crates or cardboard boxes that would be less likely than transparent plastic or vinyl containers to crack or split during handling. We believe that this is a reasonable suggestion. However, the recommendation that tails, feet, backstrips, and other parts be exported in transparent, sealed containers was accepted by the CITES Parties at CoP9 (1994) and is currently contained in Resolution Conf. 11.12 (Rev. CoP15). Because it is not just a U.S. requirement, changing this provision, both in terms of what the United States allows on export and what other countries allow upon import, cannot be achieved by simply revising our regulations. We will, however, explore with other Parties the possibility of revising Resolution Conf. 11.12 (Rev. CoP15) at CoP17 to update the provisions for transport of crocodilian parts.
Prior to CoP15, as part of its regular review of resolutions, the Secretariat suggested that the Parties consider developing a definition of “hunting trophy” that could be added to a CITES resolution. The United States participated in discussions through an online forum prior to CoP15 and in a working group established at CoP15 to consider a CITES definition of “hunting trophy.” At CoP15, the Parties adopted a definition of “hunting trophy” in Resolution Conf. 12.3 (Rev. CoP15). The major difference between the definition in our CITES regulations and the definition adopted by the Parties is that the definition in Resolution Conf. 12.3 (Rev. CoP15) allows manufactured items derived from the hunted animal to be considered part of a hunting trophy, whereas our definition in 50 CFR part 23 specifically excludes such items. We continue to have concerns about the possible import of fully manufactured products as part of a hunting trophy that were actually purchased at a store or from a taxidermist, for example, and were not made from the sport-hunted trophy animal. Therefore, we have incorporated into § 23.74(b) the definition contained in Resolution Conf. 12.3 (Rev. CoP15) with some additional text to clarify the conditions under which we will allow the import into the United States of manufactured items as part of a hunting trophy.
Five commenters expressed strong opposition to incorporating the definition of “hunting trophy” adopted at CoP15 because they do not believe that manufactured items should be considered part of a trophy. Some noted that the Parties have not yet agreed on the treatment of hunting trophies with respect to CITES provisions for personal and household effects and purpose codes on permits, and they argued that we should wait for those discussions to be concluded before revising our definition. Others pointed to the “rise of sport-hunting as a loophole for illegal trade” and expressed concern that the proposed change would present enforcement challenges and could allow laundering of commercial items as sport-hunted trophies. One commenter did not believe that we had provided sufficient justification for including products manufactured from the trophy animal in the definition of “sport-hunted trophy.” Another commenter noted that the United States has the
Although it is true that discussions regarding CITES provisions for treatment of personal and household effects and the use of purpose codes on CITES documents are ongoing, the definition of “hunting trophy” is not dependent on the outcome of those discussions. We share the concern that adopting the definition of “hunting trophy” in Resolution Conf. 12.3 (Rev. CoP15) could result in enforcement challenges and trade in commercial products as hunting trophies. For these reasons, we are adding the provisions in § 23.74(b)(4) to describe the conditions under which we will allow import of manufactured or handicraft items as part of a sport-hunted trophy. Our new definition is consistent with the definition adopted by CITES Parties, but provides us additional measures to ensure that this trade is limited to items made from the sport-hunted animal for the personal use of the hunter.
Two commenters expressed support for the definition of “hunting trophy” adopted at CoP15 and for incorporation of the new definition into U.S. regulations. These commenters objected, however, to the additional text we have proposed to clarify the circumstances under which we would allow import into the United States of manufactured items as part of a hunting trophy.
Both commenters objected to the requirement in § 23.74(b)(4)(i) that items manufactured from the sport-hunted animal be contained in the same shipment as raw or tanned parts of the animal, noting that the definition in Res. Conf. 12.3 (Rev. CoP15) allows for the possibility that manufactured items made from a sport-hunted animal are the only items a hunter wishes to export and import. As we have stated previously, we have concerns about the import of fully manufactured products as a hunting trophy when the items were not actually made from the sport-hunted trophy animal. Requiring that manufactured items be contained in the same shipment as raw or tanned parts helps provide assurance that these items were, in fact, manufactured from the sport-hunted trophy animal. One commenter objected to the requirement that these manufactured items must be for the personal use of the hunter. To meet both the CITES definition of “hunting trophy” in Res. Conf. 12.3 (Rev. CoP15) and our definition of “sport-hunted trophy” in § 23.74, the animal must have been killed by the hunter for his or her personal use. If we are to consider items manufactured from the trophy animal to be part of the sport-hunted trophy, they must therefore also be for the personal use of the hunter.
Both commenters objected to the text in § 23.74(b)(4)(ii), which states that the quantity of manufactured items imported as a sport-hunted trophy must be no more than could “reasonably be expected given the number of animals taken by the hunter.” One felt this provision was too broad and the other felt that it provides too much discretion for inspectors to determine “reasonable quantities.” These same commenters also objected to the text in § 23.74(b)(4)(iii) requiring that the accompanying CITES document contain a complete itemization and description of all items included in the sport-hunted trophy shipment. We disagree with these comments and believe that the provisions in § 23.74(b)(4) provide reasonable measures for us to ensure that the expansion of our existing definition of “sport-hunted trophy,” to include items manufactured from the trophy animal, will not result in negative impacts to populations subject to sport hunting.
The definition of “sport-hunted trophy” has been the subject of considerable discussion and debate both here in the United States and at CITES meetings. We have been active participants in those discussions and have carefully considered whether and how to change our existing definition in § 23.74. As we indicated in the preamble to our proposed rule, we will carefully monitor imports of sport-hunted trophies, particularly imports of manufactured items as parts of sport-hunted trophies, to evaluate the impact of this change. If we identify problems with implementation of the new definition that result in increased conservation risks to these species, we will revisit our definition of “sport-hunted trophy” and propose revisions as needed.
We are moving the CITES marking requirements for African elephant trophies and the definition of “lip mark area” from the African elephant special rule (50 CFR 17.40(e)) into § 23.74. (See the discussion in the preamble on proposed changes to 50 CFR part 17.) In addition, at CoP15, the Parties adopted a change to the accepted methods for marking of elephant ivory to allow the use of new technologies for permanent marking, including the use of lasers. We are incorporating this change and clarifying the marking requirements for elephant ivory consistent with Resolution Conf. 10.10 (Rev. CoP15). Two commenters expressed support for these changes.
One commenter noted the difference between requirements for reporting the year on marks or tags for different species and suggested that the year on a mark or tag should represent the year of harvest in all cases, as recommended in Resolution Conf. 14.7. We agree with the commenter that it would be helpful to standardize the marking requirements for sport-hunted trophies, to the extent possible. However, we note that Resolution Conf. 14.7 provides general guidance with regard to nationally established export quotas. The marking requirements in § 23.74 are for specimens of species for which the Parties have adopted resolutions specific to trade in those species (i.e., elephant, leopard, markhor, and black rhinoceros, each of which contains marking requirements). The marking requirements in § 23.74 mirror the requirements in the various resolutions specific to trade in these specimens. In response to the comment, we are adding a clarification to the marking requirements for African elephant hunting trophies to indicate that the year included in the formula for marking (in Resolution Conf. 10.10 (Rev. CoP15)) is the year in which the elephant was harvested for export. We will continue to work with other CITES Parties to clarify and standardize marking requirements for sport-hunted trophies, where practicable.
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 rule in a manner consistent with these requirements.
The U.S. Small Business Administration (SBA) defines a small business as one with annual revenue or employment that meets or is below an established size standard. We expect that the majority of the entities involved with international trade in CITES specimens would be considered small as defined by the SBA. The declared value for U.S. international trade in CITES wildlife (not including plants) was $819 million in 2000, $428 million in 2001, $345 million in 2002, $394 million in 2003, $1.5 billion in 2004 (including one export of a single panda to China with a declared value of $1 billion), $737 million in 2005, $748 million in 2006, $1.0 billion in 2007, $846 million in 2008, $637 million in 2009, $665 million in 2010, and $871 million in 2011.
These new regulations create no substantial fee or paperwork changes in the permitting process. The regulatory changes are not major in scope and will create only a modest financial or paperwork burden on the affected members of the general public. The change from the current annual reporting requirement for registered facilities breeding Appendix-I wildlife to a 5-year renewal requirement actually reduces the paperwork burden for these facilities.
This final rule will benefit businesses engaged in international trade by providing updated and clearer regulations for the international trade of CITES specimens. We do not expect these benefits to be significant under the Regulatory Flexibility Act. The authority to enforce CITES requirements already exists under the ESA and is carried out by regulations contained in 50 CFR part 23. The requirements that must be met to import, export, and re-export CITES species are based on the text of CITES, which has been in effect in the United States since 1975.
We therefore certify that this final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
a. Does not have an annual effect on the economy of $100 million or more. This rule provides the importing and exporting community in the United States with updated and more clearly written regulations implementing CITES. This rule will not have a negative effect on this part of the economy. It will affect all importers, exporters, and re-exporters of CITES specimens equally, and the benefits of having updated guidance on complying with CITES requirements will be evenly spread among all businesses, whether large or small. There is not a disproportionate share of benefits for small or large businesses.
b. Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, tribal, or local government agencies; or geographic regions. This final rule will result in a small increase in fees for registered operations breeding Appendix-I species due to the requirement for renewal of registrations every 5 years.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This rule will assist U.S. businesses and individuals traveling abroad in ensuring that they are meeting all current CITES requirements, thereby decreasing the possibility that shipments may be delayed or even seized in another country that has implemented CITES resolutions not yet incorporated into U.S. regulations.
a. This final rule will not significantly or uniquely affect small governments. A Small Government Agency Plan is not required. As the lead agency for implementing CITES in the United States, we are responsible for monitoring import and export of CITES wildlife and plants, including their parts, products, and derivatives, and issuing import and export documents under CITES. The structure of the program imposes no unfunded mandates. Therefore, this rule will have no effect on small governments' responsibilities.
b. This rule will not produce a Federal requirement of $100 million or greater in any year and is not a “significant regulatory action” under the Unfunded Mandates Reform Act.
OMB approved the information collection requirements associated with CITES permit applications and reports and assigned OMB Control Number 1018–0093, which expires May 31, 2017. This approval includes the application for the initial registration of commercial facilities that breed CITES Appendix-I animals (FWS Form 3–200–65) as well as other CITES requirements. This rule does not change the information collection requirements currently approved under 1018–0093. OMB has reviewed the following new requirements and assigned OMB Control Number 1018–0150, which expires April 30, 2017. When this final rule is effective, we will incorporate burden for the new information collections into OMB Control No. 1018–0093 and discontinue OMB Control Number 1018–0150.
•
•
•
•
•
•
(1) Records that identify the name and address of the breeder and identify the specimen by birth or hatch date and by sex, band number, microchip number, or other mark.
(2) A certified pedigree issued by an internationally recognized association that contains scientific names of the animals in the specimen's recent lineage and clearly illustrates its genetic history. If the pedigree contains codes, a key or guide that explains the meaning of the codes must be provided.
•
During the proposed rule stage, we solicited comments on the new information collection (FWS Form 3–200–65). We received 9 comments, all from falconers and raptor breeders, regarding information collection requirements for renewal of registrations for breeding facilities. We responded to all comments in the preamble (see the sections on
One falconer expressed dissatisfaction with the process for renewing a certificate of ownership for personally owned, live wildlife (§ 23.44). The commenter objected to having to complete an entire application when only a few items needed to be updated. He also considered the estimated time of 30 minutes for completion of Form 3–200–64 to be “overly conservative” and stated that “a more realistic, but still conservative estimate” would be at least 60 minutes.
Form 3–200–64, the application form for issuance of a certificate of ownership for personally owned live wildlife, asks for detailed information regarding the animal to be covered under the certificate. When a certificate holder wishes to renew a certificate of ownership, however, he or she should complete and submit Form 3–200–52, the application for re-issuance or renewal of a permit. This is a simplified application on which the applicant can certify that there have been no changes to the original application or that there have been changes as noted on an attached page. We thank the commenter for his input regarding the length of time needed to complete Form 3–200–64. We have reviewed all of our application forms and took his comments into consideration during the renewal process for OMB Control Number 1018–0093.
Some of the commenters stated that the new requirement for renewal of commercial breeding operation for Appendix-I wildlife (§ 23.46) would create a significant burden on registered operations. They noted that raptor breeders are already monitored by the Service, through the Migratory Bird Program (MBP), and therefore the process for renewal of a registration would be redundant. They argued that the annual report and individual transactions forms provided to MBP should suffice for any monitoring requirement for CITES. Two commenters were more supportive of a simple registration update form and associated fee, if the required data submission was simply a reference to the current MBP data. One commenter suggested that if renewal of a registration is mandated by the Service, a one-page application with accompanying photocopies of the past five annual reports from the operation to the MBP should be all that is required.
The regulations in § 23.46, regarding the process for registering a commercial breeding operation for Appendix-I wildlife, apply to operations breeding any Appendix-I species, not just raptors and other falconry birds. Although it is true, as one commenter has noted, that all of the U.S. facilities currently registered with the CITES Secretariat are breeding raptors, we do not anticipate that this will always be the case. Therefore, we need to establish registration and reporting procedures that will work not just for facilities breeding raptors, but for any commercial breeding operation that may be registered in the future. It is not our intention, however, to increase the burden for raptor breeders.
We understand that U.S. raptor breeders are regulated under the Migratory Bird Treaty Act (MBTA) and must provide reports to the MBP on specific activities related to the breeding of native raptors (as defined in part 21 of this subchapter). It is also true, however, that not all CITES-listed, Appendix-I raptors are covered by the MBTA. There is no requirement for an operation breeding birds that are not covered by the MBTA (including raptors that are not native raptors under the definition in part 21) to provide reports to the MBP on activities associated with those birds. We agree that, for operations breeding native raptors, documents submitted to the MBP would include most, if not all, of the information needed for the renewal of a CITES registration. If an applicant requesting renewal of a registration is breeding native raptors and reporting to the MBP, he or she can inform us on the application for renewal, and we will obtain copies of the relevant documents, covering the past 5-year period, from MBP. A registered operation that is breeding Appendix-I species that are not covered by the MBTA, and therefore not covered in reports provided to the MBP, will need to include updated information relevant to those species in its renewal application.
You may send comments on any aspect of these information collection requirements to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Mail Stop 2042–PDM, Arlington, VA 22203.
Administrative practice and procedure, Exports, Fish, Imports, Plants, Reporting and recordkeeping requirements, Transportation, Wildlife.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Animals, Endangered and threatened species, Exports, Fish, Foreign trade, Forest and forest products, Imports, Incorporation by reference, Marine mammals, Plants, Reporting and recordkeeping requirements, Transportation, Treaties, Wildlife.
For the reasons given in the preamble, under the authority of 16 U.S.C. 1531 et seq., we amend title 50, chapter I, of the Code of Federal Regulations as follows:
16 U.S.C. 668a, 704, 712, 742j-l, 1374(g), 1382, 1538(d), 1539, 1540(f), 3374, 4901–4916; 18 U.S.C. 42; 19 U.S.C. 1202; 31 U.S.C. 9701.
(d) * * *
(4) * * *
(b)
16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.
(b) * * *
(1) * * *
(i) * * *
(B) Grizzly bears may be taken in self-defense or in defense of others, but such taking shall be reported by the individual who has taken the bear or his designee within 5 days of occurrence to the Resident Agent in Charge, Office of Law Enforcement, U.S. Fish and Wildlife Service, 2900 4th Avenue North, Suite 301, Billings, MT 59101 (406–247–7355), if occurring in Montana or Wyoming, or the Special Agent in Charge, Office of Law Enforcement, U.S. Fish and Wildlife Service, P.O. Box 9, Sherwood, OR 97140 (503–521–5300), if occurring in Idaho or Washington, and to appropriate State and Tribal authorities. Grizzly bears taken in self-defense or in defense of others, including the parts of such bears, shall not be possessed, delivered, carried, transported, shipped, exported, received, or sold, except by Federal, State, or Tribal authorities.
(e) * * *
(3) * * *
(iii) * * *
(D) The trophy is legibly marked in accordance with part 23 of this subchapter.
(f) Leopard (
(h) * * *
(5) Any take pursuant to paragraph (h)(4) of this section must be reported in writing to the U.S. Fish and Wildlife Service, Office of Law Enforcement, 4401 N. Fairfax Drive, LE–3000, Arlington, VA 22203, within 5 days. * * *
(m) Vicuña (
(1) * * *
(ii)
(iii)
(2)
(i) The specimens originated from a population listed in CITES Appendix II.
(ii) The provisions in parts 13, 14, and 23 of this subchapter are met, including the specific labeling provisions in part 23.
(iii)
(iv)
(A) An identification tag with a code identifying the country of origin of the raw vicuña wool and the CITES export permit number; and
(B) The vicuña logotype as defined in 50 CFR part 23 and the words “VICUÑA—COUNTRY OF ORIGIN”, where country of origin is the name of the country from which the raw vicuña wool was first exported.
(v) At the time of import, the country of origin and each country of re-export involved in the trade of a particular shipment have not been identified by the CITES Conference of the Parties, the CITES Standing Committee, or in a Notification from the CITES Secretariat as a country from which Parties should not accept permits.
(y) Beluga sturgeon
(3) * * *
(i) * * *
(A) Beluga sturgeon caviar, including beluga sturgeon caviar in interstate commerce in the United States, must be labeled in accordance with the CITES labeling requirements in 50 CFR part 23.
(ii)
(4) * * *
(iii)
(5) * * * Facilities outside the littoral states wishing to obtain such exemptions must submit a written request to the Division of Management Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 212, Arlington, VA 22203, and provide information that shows at a minimum, all of the following: * * *
(a) * * *
(4) When the activity applied for involves a species also regulated by the Convention on International Trade in Endangered Species of Wild Fauna and Flora, additional requirements in part 23 of this subchapter must be met.
(c) * * *
(3) * * * If the specimens are of taxa also regulated by the Convention on International Trade in Endangered Species of Wild Fauna and Flora, specific information must be entered on the Customs declaration label affixed to the outside of each shipping container or package. See part 23 of this subchapter for requirements for trade in CITES specimens between registered scientific institutions.
(a) * * *
(4) When the activity applied for involves a species also regulated by the Convention on International Trade in Endangered Species of Wild Fauna and Flora, additional requirements in part 23 of this subchapter must be met.
(c) * * *
(3) * * * If the specimens are of taxa also regulated by the Convention on International Trade in Endangered Species of Wild Fauna and Flora, specific information must be entered on the Customs declaration label affixed to the outside of each shipping container or package. See part 23 of this subchapter for requirements for trade in CITES specimens between registered scientific institutions.
Convention on International Trade in Endangered Species of Wild Fauna and Flora (March 3, 1973), 27 U.S.T. 1087; and Endangered Species Act of 1973, as amended, 16 U.S.C. 1531
If you are engaging in activities with specimens of CITES-listed species these regulations apply to you.
(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may inspect copies at the U.S. Management Authority, Fish and Wildlife Service, 4401 N. Fairfax Dr., Room 212, Arlington, VA 22203 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:
(b) International Air Transport Association (IATA), 800 Place Victoria, P.O. Box 113, Montreal, Quebec, Canada H4Z 1M1, 1–800–716–6326,
(1) Live Animals Regulations (LAR) 40th edition, effective October 1, 2013, into §§ 23.23, 23.26, and 23.56.
(2) Perishable Cargo Regulations (PCR) 13th edition, effective July 1, 2013, into §§ 23.23, 23.26, and 23.56.
(d) Use any specimen of a species listed in Appendix I, II, or III of CITES for any purpose contrary to what is allowed under § 23.55.
(e) Violate any other provisions of this part.
(c) * * *
(e) * * *
(c) * * *
(d) * * *
(4) The CITES document includes a species for which the Secretariat has published an annotated quota.
(7) We know or have reasonable grounds to believe that an Appendix-I specimen was not bred at a facility registered with the CITES Secretariat and that the purpose of the import is commercial.
(11) The export permit or re-export certificate does not contain validation or certification by an inspecting official at the time of export of the actual quantity exported or re-exported.
(a) * * * Article VI, paragraph 6, of the Treaty requires that the Management Authority of the importing country cancel and retain the export permit or re-export certificate and any corresponding import permit presented. In the United States, for imports of CITES-listed plant specimens, CITES inspecting officials cancel and submit original CITES documents to the U.S. Management Authority.
(b) * * *
(b) * * *
(f) * * *
(2) For import, export, or re-export of an exempt wildlife hybrid without CITES documents, you must provide information at the time of import or export to clearly demonstrate that your specimen has no purebred CITES specimens in the previous four generations of its ancestry. If you are unable to clearly demonstrate this, you must obtain CITES documents. The information you provide must clearly identify the specimen and demonstrate its recent lineage. Such information may include, but is not limited to, the following:
(i) Records that identify the name and address of the breeder and identify the specimen by birth or hatch date and by sex, band number, microchip number, or other mark.
(ii) A certified pedigree issued by an internationally recognized association that contains scientific names of the animals in the specimen's recent lineage and clearly illustrates its genetic history. If the pedigree contains codes, you must provide a key or guide that explains the meaning of the codes.
(3) Although a CITES document is not required for an exempt wildlife hybrid, you must follow the clearance requirements for wildlife in part 14 of this subchapter, including the prior notification requirements for live wildlife.
(e) * * *
(7) You must return the wildlife to the United States before the certificate expires.
(b) * * *
(4) If the objection is not withdrawn or the identified problems are not resolved within the 30-day period, the Secretariat will submit the application to the Standing Committee at its next regular meeting. The Standing Committee will determine whether the objection is justified and decide whether to accept the application.
(7) If a Party believes that a registered operation does not meet the bred-in-captivity requirements, it may, after consultation with the Secretariat and the Party concerned, propose to the Standing Committee that the operation be deleted from the register. At its following meeting, the Standing Committee will consider the concerns raised by the objecting Party, and any
(8) * * * In the United States, we will monitor registered operations, in part, by requiring each operation to apply for renewal and demonstrate that it continues to qualify for registration at least once every 5 years. (See paragraphs (e)(4) and (f) of this section.) * * *
(e) * * *
(4) Registrations will be valid for a period not to exceed 5 years. Registrants who wish to remain registered must request renewal before the end of the period of validity of the registration.
(f)
(g)
(a) * * * This section does not apply to hybrids of one or more Appendix-I species or taxa that are not annotated to treat hybrids as Appendix-I specimens (see § 23.40).
(a) * * * To renew a U.S. CITES document, see part 13 of this subchapter. To amend a U.S. CITES document, see part 13 of this subchapter if the activity has not yet occurred or, if the activity has already occurred, see § 23.53 of this part.
(b) * * *
(6) In the United States, you may not use an original single-use CITES document issued under a CITES master file or CITES annual program as a replacement document for a shipment that has already left the country.
(d)
(1) When applying for a U.S. replacement document, you must provide sufficient information for us to find that your proposed activity meets all of the following criteria:
(i) * * *
(ii) * * *
(iii) The specimens were presented to the appropriate official for inspection at the time of import and a request for a replacement CITES document was made at that time.
(2) For acceptance of foreign CITES replacement documents in the United States, you must provide sufficient information for us to find that your proposed activity meets all of the following criteria:
(i) The specimens were presented to the appropriate official for inspection at the time of import and a request for a replacement CITES document was made at that time.
(ii) The importer or the importer's agent submitted a signed, dated, and notarized statement at the time of import that describes the circumstances that resulted in the CITES document being lost, damaged, stolen, or accidentally destroyed.
(iii) The importer or the importer's agent provided a copy of the original lost, stolen, or accidentally destroyed document at the time of import showing that the document met the requirements in §§ 23.23, 23.24, and 23.25.
(a) Retrospective CITES documents may be issued and accepted in certain limited situations after an export or re-export has occurred, but before the shipment is cleared for import. When specific conditions are met, a retrospective CITES document may be issued to authorize trade that has taken place without a CITES document or to correct certain technical errors in a CITES document after the authorized activity has occurred.
(b) * * *
(8) In the United States, you may not use a U.S. CITES document issued under a CITES master file or CITES annual program as a retrospective CITES document.
(d) * * *
(6) * * *
(ii) The Management Authority made a technical error when issuing the CITES document that was not prompted by information provided by the applicant.
In addition to the provisions in § 23.3, you may only use CITES specimens after import into the United States for the following purposes:
(a) * * *
(2) For export and re-export of live wildlife and plants, transport conditions must comply with the
(a) * * * For purposes of this section, CITES furbearers means bobcat (
(c) * * *
(3) Fur skins without a CITES tag permanently attached may not be exported or re-exported. If the CITES tag has been inadvertently removed, damaged, or lost you may obtain a replacement tag. * * *
(d) * * *
(1) * * *
(ii) Be permanently stamped with the two-letter ISO code for the country of origin, a unique serial number, a standardized species code (available on our Web site; see § 23.7), and for
(2) Skins, flanks, and chalecos must be individually tagged.
(3) Skins without a non-reusable tag permanently attached may not be exported or re-exported. * * *
(h) * * *
(3) To re-export crocodilian specimens, complete Form 3–200–73 and submit it to either FWS Law Enforcement or the U.S. Management Authority.
(a)
(b) * * *
(1) * * *
(i) * * * In the United States, the design of the label will be determined by the labeler in accordance with the requirements of this section.
(ii)
(iv) * * * In the United States, this may be done by the person who harvested the roe.
(v) * * * This includes any facility where caviar is removed from the container in which it was received and placed in a different container.
(2) * * *
(iv) * * * This is either the calendar year in which caviar was harvested or, for caviar imported from shared stocks subject to quotas, the quota year in which it was harvested.
(3) * * *
(iii) Lot identification number or, for caviar that is being re-exported, the CITES document number under which it was imported may be used in place of the lot identification number.
(i)
(b)
(1) Is raw, processed, or manufactured;
(2) Was legally obtained by the hunter through hunting for his or her personal use;
(3) Is being imported, exported, or re-exported by or on behalf of the hunter as part of the transfer from its country of origin ultimately to the hunter's country of usual residence; and
(4) Includes worked, manufactured, or handicraft items made from the sport-hunted animal only when:
(i) Such items are contained in the same shipment as raw or tanned parts of the sport-hunted animal and are for the personal use of the hunter;
(ii) The quantity of such items is no more than could reasonably be expected given the number of animals taken by the hunter as shown on the license or other documentation of the authorized hunt accompanying the shipment; and
(iii) The accompanying CITES documents (export document and, if appropriate, import permit) contain a complete itemization and description of all items included in the shipment.
(d)
(1) No more than two leopard (
(2) No more than one markhor (
(3) No more than one black rhinoceros (
(e)
(i) Leopard and markhor: Each raw or tanned skin must have a self-locking tag inserted through the skin and permanently locked in place using the locking mechanism of the tag. The tag must indicate the country of origin, the number of the specimen in relation to the annual quota, and the calendar year in which the specimen was taken in the wild. A mounted sport-hunted trophy
(ii) Black rhinoceros: Parts of the trophy, including, but not limited to, skin, skull, or horns, whether mounted or loose, should be individually marked with reference to the country of origin, species, the number of the specimen in relation to the annual quota, and the year of export.
(iii) Crocodilians: See marking requirements in § 23.70.
(iv) The export permit or re-export certificate or an annex attached to the permit or certificate must contain all the information that is given on the tag.
(2) African elephant (
(a)
(b)
(c)
(d)
(e)
(f)
(b) * * *
(2) * * *
(iii) The CoP appoints a specialist in zoological nomenclature to the Animals Committee and a specialist in botanical nomenclature to the Plants Committee. These specialists are ex officio and non-voting, and are responsible for developing or identifying standard nomenclature references for wildlife and plant taxa and making recommendations on nomenclature to Parties, the CoP, other committees, working groups, and the Secretariat.
(b) * * *
(2)
(c) The following are exempt from CITES document requirements when certain criteria are met.
(1)