Animal and Plant Health Inspection Service
Committee for Purchase From People Who Are Blind or Severely Disabled
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
Land Management Bureau
Mine Safety and Health Administration
Federal Aviation Administration
Maritime Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Foreign Assets Control Office
Internal Revenue Service
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Internal Revenue Service (IRS), Treasury.
Correcting amendment.
This document contains corrections to final regulations (TD 9665) that were published in the
This correction is effective on July 7, 2014, and is applicable May 12, 2014.
Michael P. Brewer or Lauson C. Green at (202) 317–6700 (not a toll-free number).
The final regulations that are the subject of this document are under section 402(a) of the Internal Revenue Code.
As published, final regulations (TD 9665) contain errors that may prove to be misleading and are in need of clarification.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:
26 U.S.C. 7805 * * *
(e) * * *
(6) * * *
(i) * * * During the period Participant Q is absent from employment due to disability, the insurer pays the trust the amount of the elective, matching, and non-elective employer profit-sharing contributions that would have been made to the trust with respect to Participant Q had Participant Q not been disabled. * * *
Mine Safety and Health Administration, Labor.
Final rule.
The Mine Safety and Health Administration (MSHA) is announcing that the Office of Management and Budget (OMB) approved the information requirements contained in the final rule on Lowering Miners' Exposure to Coal Mine Dust, Including Continuous Personal Dust Monitors published in the
The effective date of the final rule and the related information collections is August 1, 2014.
Sheila McConnell, Acting Director, Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209–3939,
On May 1, 2014, MSHA published a final rule that revised the Agency's existing regulation for Lowering Miners' Exposure to Coal Mine Dust Including Continuous Personal Dust Monitors in the
Office of Foreign Assets Control, Treasury.
Final rule.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is issuing regulations to implement Executive Order 13667 of May 12, 2014 (“Blocking Property of Certain Persons Contributing to the Conflict in the Central African Republic”). OFAC intends to supplement this part 553 with a more comprehensive set of regulations, which may include additional interpretive and definitional guidance and additional general licenses and statements of licensing policy.
Assistant Director for Licensing, tel.: 202/622–2480, Assistant Director for Policy, tel.: 202/622–6746, Assistant Director for Regulatory Affairs, tel.: 202/622–4855, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202/622–2490, OFAC, or Chief Counsel (Foreign Assets Control), tel.: 202/622–2410, Office of the General Counsel, Department of the Treasury (not toll free numbers).
This document and additional information concerning OFAC are available from OFAC's Web site (
On May 12, 2014, the President issued Executive Order 13667 (79 FR 28387, May 15, 2014) (E.O. 13667), invoking the authority of,
OFAC is issuing the Central African Republic Sanctions Regulations, 31 CFR part 553 (the “Regulations”), to implement E.O. 13667, pursuant to authorities delegated to the Secretary of the Treasury in E.O. 13667. A copy of E.O. 13667 appears in Appendix A to this part.
The Regulations are being published in abbreviated form at this time for the purpose of providing immediate guidance to the public. OFAC intends to supplement this part 553 with a more comprehensive set of regulations, which may include additional interpretive and definitional guidance and additional general licenses and statements of licensing policy. The appendix to the Regulations will be removed when OFAC supplements this part with a more comprehensive set of regulations.
Because the Regulations involve a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601–612) does not apply.
The collections of information related to the Regulations are contained in 31 CFR Part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505–0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.
Administrative practice and procedure, Banking, Banks, Blocking of assets, Brokers, Central African Republic, Credit, Foreign Trade, Investments, Loans, Securities, Services.
For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control adds part 553 to 31 CFR chapter V to read as follows:
3 U.S.C. 301; 31 U.S.C. 321(b); 50 U.S.C. 1601–1651, 1701–1706; 22 U.S.C. 287c; Pub. L. 101–410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 110–96, 121 Stat. 1011 (50 U.S.C. 1705 note); E.O. 13667, 79 FR 28387, May 15, 2014.
This part is separate from, and independent of, the other parts of this chapter, with the exception of part 501 of this chapter, the recordkeeping and reporting requirements and license application and other procedures of which apply to this part. Actions taken pursuant to part 501 of this chapter with respect to the prohibitions contained in this part are considered actions taken pursuant to this part. Differing foreign policy and national security circumstances may result in differing interpretations of similar language among the parts of this chapter. No license or authorization contained in or issued pursuant to those other parts authorizes any transaction prohibited by this part. No license or authorization contained in or issued pursuant to any other provision of law or regulation authorizes any transaction prohibited by this part. No license or authorization contained in or issued pursuant to this part relieves the involved parties from complying with any other applicable laws or regulations.
This part has been published in abbreviated form for the purpose of providing immediate guidance to the public. OFAC intends to supplement this part with a more comprehensive set of regulations, which may include additional interpretive and definitional guidance and additional general licenses and statements of licensing policy.
All transactions prohibited pursuant to Executive Order 13667 of May 12, 2014, are also prohibited pursuant to this part.
The names of persons designated pursuant to Executive Order 13667, whose property and interests in property therefore are blocked pursuant to this section, are published in the
The International Emergency Economic Powers Act (50 U.S.C. 1701–1706), in Section 203 (50 U.S.C. 1702), authorizes the blocking of property and interests in property of a person during the pendency of an investigation. The names of persons whose property and interests in property are blocked pending investigation pursuant to this section also are published in the
Sections 501.806 and 501.807 of this chapter describe the procedures to be followed by persons seeking, respectively, the unblocking of funds that they believe were blocked due to mistaken identity, or administrative reconsideration of their status as persons whose property and interests in property are blocked pursuant to this section.
(a) Any transfer after the effective date that is in violation of any provision of this part or of any regulation, order, directive, ruling, instruction, or license issued pursuant to this part, and that involves any property or interest in property blocked pursuant to § 553.201, is null and void and shall not be the basis for the assertion or recognition of any interest in or right, remedy, power, or privilege with respect to such property or property interests.
(b) No transfer before the effective date shall be the basis for the assertion or recognition of any right, remedy, power, or privilege with respect to, or any interest in, any property or interest in property blocked pursuant to § 553.201, unless the person who holds or maintains such property, prior to that date, had written notice of the transfer or by any written evidence had recognized such transfer.
(c) Unless otherwise provided, a license or other authorization issued by OFAC before, during, or after a transfer shall validate such transfer or make it enforceable to the same extent that it would be valid or enforceable but for the provisions of this part and any regulation, order, directive, ruling, instruction, or license issued pursuant to this part.
(d) Transfers of property that otherwise would be null and void or unenforceable by virtue of the provisions of this section shall not be deemed to be null and void or unenforceable as to any person with whom such property is or was held or maintained (and as to such person only) in cases in which such person is able to establish to the satisfaction of OFAC each of the following:
(1) Such transfer did not represent a willful violation of the provisions of this part by the person with whom such property is or was held or maintained (and as to such person only);
(2) The person with whom such property is or was held or maintained did not have reasonable cause to know or suspect, in view of all the facts and circumstances known or available to such person, that such transfer required a license or authorization issued pursuant to this part and was not so licensed or authorized, or, if a license or authorization did purport to cover the transfer, that such license or authorization had been obtained by misrepresentation of a third party or withholding of material facts or was otherwise fraudulently obtained; and
(3) The person with whom such property is or was held or maintained filed with OFAC a report setting forth in full the circumstances relating to such transfer promptly upon discovery that:
(i) Such transfer was in violation of the provisions of this part or any regulation, ruling, instruction, license, or other directive or authorization issued pursuant to this part;
(ii) Such transfer was not licensed or authorized by OFAC; or
(iii) If a license did purport to cover the transfer, such license had been obtained by misrepresentation of a third party or withholding of material facts or was otherwise fraudulently obtained.
The filing of a report in accordance with the provisions of paragraph (d)(3) of this section shall not be deemed evidence that the terms of paragraphs (d)(1) and (d)(2) of this section have been satisfied.
(e) Unless licensed pursuant to this part, any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is null and void with respect to any property in which, on or since the effective date, there existed an interest of a person whose property and interests in property are blocked pursuant to § 553.201.
(a) Except as provided in paragraphs (e) or (f) of this section, or as otherwise directed by OFAC, any U.S. person holding funds, such as currency, bank deposits, or liquidated financial obligations, subject to § 553.201 shall hold or place such funds in a blocked interest-bearing account located in the United States.
(b)(1) For purposes of this section, the term
(i) In a federally-insured U.S. bank, thrift institution, or credit union, provided the funds are earning interest at rates that are commercially reasonable; or
(ii) With a broker or dealer registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934 (15 U.S.C. 78a
(2) Funds held or placed in a blocked account pursuant to paragraph (a) of this section may not be invested in instruments the maturity of which exceeds 180 days.
(c) For purposes of this section, a rate is commercially reasonable if it is the rate currently offered to other depositors on deposits or instruments of comparable size and maturity.
(d) For purposes of this section, if interest is credited to a separate blocked account or subaccount, the name of the account party on each account must be the same.
(e) Blocked funds held in instruments the maturity of which exceeds 180 days at the time the funds become subject to § 553.201 may continue to be held until maturity in the original instrument, provided any interest, earnings, or other proceeds derived therefrom are paid into a blocked interest-bearing account in accordance with paragraphs (a) or (f) of this section.
(f) Blocked funds held in accounts or instruments outside the United States at the time the funds become subject to § 553.201 may continue to be held in the same type of accounts or instruments, provided the funds earn interest at rates that are commercially reasonable.
(g) This section does not create an affirmative obligation for the holder of blocked tangible property, such as chattels or real estate, or of other blocked property, such as debt or equity securities, to sell or liquidate such property. However, OFAC may issue licenses permitting or directing such sales or liquidation in appropriate cases.
(h) Funds subject to this section may not be held, invested, or reinvested in a manner that provides immediate financial or economic benefit or access to any person whose property and interests in property are blocked pursuant to § 553.201, nor may their holder cooperate in or facilitate the pledging or other attempted use as collateral of blocked funds or other assets.
(a) Except as otherwise authorized, and notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or contract entered into or any license or permit granted prior to the effective date, all expenses incident to the maintenance of physical property blocked pursuant to § 553.201 shall be the responsibility of the owners or operators of such property, which expenses shall not be met from blocked funds.
(b) Property blocked pursuant to § 553.201 may, in the discretion of OFAC, be sold or liquidated and the net proceeds placed in a blocked interest-bearing account in the name of the owner of the property.
The definitions in this subpart apply throughout the entire part.
The terms
See § 553.406 concerning the blocked status of property and interests in property of an entity that is 50 percent or more owned by a person whose property and interests in property are blocked pursuant to § 553.201.
The term
(a) With respect to a person listed in the Annex to E.O. 13667 of May 12, 2014, 12:01 a.m. eastern daylight time, May 13, 2014; and
(b) With respect to a person whose property and interests in property are otherwise blocked pursuant to § 553.201, the earlier of the date of actual or constructive notice that such person's property and interests in property are blocked.
The term
Except as otherwise provided in this part, the term
(a) Except as otherwise specified, the term
(b) The term
(c) The term
The term
The term
The terms
The term
The term
The term
The term
Unless otherwise specifically provided, any amendment, modification, or revocation of any provision in or appendix to this part or chapter or of any order, regulation, ruling, instruction, or license issued by OFAC does not affect any act done or omitted, or any civil or criminal proceeding commenced or pending, prior to such amendment, modification, or revocation. All penalties, forfeitures, and liabilities under any such order, regulation, ruling, instruction, or license continue and may be enforced as if such amendment, modification, or revocation had not been made.
(a) Whenever a transaction licensed or authorized by or pursuant to this part results in the transfer of property (including any property interest) away from a person whose property and interests in property are blocked pursuant to § 553.201, such property shall no longer be deemed to be property blocked pursuant to § 553.201, unless there exists in the property another interest that is blocked pursuant to § 553.201, the transfer of which has not been effected pursuant to license or other authorization.
(b) Unless otherwise specifically provided in a license or authorization issued pursuant to this part, if property (including any property interest) is transferred or attempted to be transferred to a person whose property and interests in property are blocked pursuant to § 553.201, such property shall be deemed to be property in which that person has an interest and therefore blocked.
Any transaction ordinarily incident to a licensed transaction and necessary to give effect thereto is also authorized, except:
(a) An ordinarily incident transaction, not explicitly authorized within the terms of the license, by or with a person whose property and interests in property are blocked pursuant to § 553.201; or
(b) An ordinarily incident transaction, not explicitly authorized within the terms of the license, involving a debit to a blocked account or a transfer of blocked property.
A setoff against blocked property (including a blocked account), whether by a U.S. bank or other U.S. person, is a prohibited transfer under § 553.201 if effected after the effective date.
A person whose property and interests in property are blocked pursuant to § 553.201 has an interest in all property and interests in property of an entity in which it owns, directly or indirectly, a 50 percent or greater
For provisions relating to licensing procedures, see part 501, subpart E of this chapter. Licensing actions taken pursuant to part 501 of this chapter with respect to the prohibitions contained in this part are considered actions taken pursuant to this part. General licenses and statements of licensing policy relating to this part also may be available through the Central African Republic sanctions page on OFAC's Web site:
OFAC reserves the right to exclude any person, property, transaction, or class thereof from the operation of any license or from the privileges conferred by any license. OFAC also reserves the right to restrict the applicability of any license to particular persons, property, transactions, or classes thereof. Such actions are binding upon actual or constructive notice of the exclusions or restrictions.
Any payment of funds or transfer of credit in which a person whose property and interests in property are blocked pursuant to § 553.201 has any interest that comes within the possession or control of a U.S. financial institution must be blocked in an account on the books of that financial institution. A transfer of funds or credit by a U.S. financial institution between blocked accounts in its branches or offices is authorized, provided that no transfer is made from an account within the United States to an account held outside the United States, and further provided that a transfer from a blocked account may be made only to another blocked account held in the same name.
(a) A U.S. financial institution is authorized to debit any blocked account held at that financial institution in payment or reimbursement for normal service charges owed it by the owner of that blocked account.
(b) As used in this section, the term
(a) The provision of the following legal services to or on behalf of persons whose property and interests in property are blocked pursuant to § 553.201 or any further Executive orders relating to the national emergency declared in Executive Order 13667 of May 12, 2014, is authorized, provided that receipt of payment of professional fees and reimbursement of incurred expenses must be specifically licensed or otherwise authorized pursuant to § 553.507:
(1) Provision of legal advice and counseling on the requirements of and compliance with the laws of the United States or any jurisdiction within the United States, provided that such advice and counseling are not provided to facilitate transactions in violation of this part;
(2) Representation of persons named as defendants in or otherwise made parties to legal, arbitration, or administrative proceedings before any U.S. federal, state, or local court or agency;
(3) Initiation and conduct of legal, arbitration, or administrative proceedings before any U.S. federal, state, or local court or agency;
(4) Representation of persons before any U.S. federal, state, or local court or agency with respect to the imposition, administration, or enforcement of U.S. sanctions against such persons; and
(5) Provision of legal services in any other context in which prevailing U.S. law requires access to legal counsel at public expense.
(b) The provision of any other legal services to persons whose property and interests in property are blocked pursuant to § 553.201 or any further Executive orders relating to the national emergency declared in Executive Order 13667 of May 12, 2014, not otherwise authorized in this part, requires the issuance of a specific license.
(c) Entry into a settlement agreement or the enforcement of any lien, judgment, arbitral award, decree, or other order through execution, garnishment, or other judicial process purporting to transfer or otherwise alter or affect property or interests in property blocked pursuant to § 553.201 or any further Executive orders relating to the national emergency declared in Executive Order 13667 of May 12, 2014, is prohibited unless licensed pursuant to this part.
U.S. persons seeking administrative reconsideration or judicial review of their designation or the blocking of their property and interests in property may apply for a specific license from OFAC to authorize the release of a limited amount of blocked funds for the payment of legal fees where alternative funding sources are not available. For more information, see OFAC's
Receipts of payment of professional fees and reimbursement of incurred expenses for the provision of legal services authorized pursuant to § 553.506(a) to or on behalf of any person whose property and interests in property are blocked pursuant to § 553.201 or any further Executive orders relating to the national emergency declared in Executive Order 13667 of May 12, 2014, are authorized from funds originating outside the United States, provided that:
(a) Prior to receiving payment for legal services authorized pursuant to § 553.506(a) rendered to persons whose property and interests in property are blocked pursuant to § 553.201 or any further Executive orders relating to the national emergency declared in Executive Order 13667 of May 12, 2014, the U.S. person that is an attorney, law firm, or legal services organization provides to OFAC a copy of a letter of engagement or a letter of intent to engage specifying the services to be performed and signed by the individual to whom such services are to be provided or, where services are to be provided to an entity, by a legal representative of the entity. The copy of a letter of engagement or a letter of intent to engage, accompanied by
(b) The funds received by U.S. persons as payment of professional fees and reimbursement of incurred expenses for the provision of legal services authorized pursuant to § 553.506(a) must not originate from:
(1) A source within the United States;
(2) Any source, wherever located, within the possession or control of a U.S. person; or
(3) Any individual or entity, other than the person on whose behalf the legal services authorized pursuant to § 553.506(a) are to be provided, whose property and interests in property are blocked pursuant to any part of this chapter or any Executive order;
This paragraph authorizes the blocked person on whose behalf the legal services authorized pursuant to § 553.506(a) are to be provided to make payments for authorized legal services using funds originating outside the United States that were not previously blocked. Nothing in this paragraph authorizes payments for legal services using funds in which any other person whose property and interests in property are blocked pursuant to § 553.201, any other part of this chapter, or any Executive order has an interest.
(c)
(i) The individual or entity from whom the funds originated and the amount of funds received; and
(ii) If applicable:
(A) The names of any individuals or entities providing related services to the U.S. person receiving payment in connection with authorized legal services, such as private investigators or expert witnesses;
(B) A general description of the services provided; and
(C) The amount of funds paid in connection with such services.
(2) In the event that no transactions occur or no funds are received during the reporting period, a statement is to be filed to that effect; and
(3) The reports, which must reference this section, are to be mailed to: Licensing Division, Office of Foreign Assets Control, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW., Annex, Washington, DC 20220.
U.S. persons who receive payments in connection with legal services authorized pursuant to § 553.506(a) do not need to obtain specific authorization to contract for related services that are ordinarily incident to the provision of those legal services, such as those provided by private investigators or expert witnesses, or to pay for such services. Additionally, U.S. persons do not need to obtain specific authorization to provide related services that are ordinarily incident to the provision of legal services authorized pursuant to § 553.506(a).
The provision of nonscheduled emergency medical services in the United States to persons whose property and interests in property are blocked pursuant to § 553.201 or any further Executive orders relating to the national emergency declared in Executive Order 13667 of May 12, 2014, is authorized, provided that all receipt of payment for such services must be specifically licensed.
Any action that the Secretary of the Treasury is authorized to take pursuant to Executive Order 13667 of May 12, 2014 and any further Executive orders relating to the national emergency declared therein, may be taken by the Director of OFAC or by any other person to whom the Secretary of the Treasury has delegated authority so to act.
For approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) of information collections relating to recordkeeping and reporting requirements, licensing procedures (including those pursuant to statements of licensing policy), and other procedures,
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701
I, BARACK OBAMA, President of the United States of America, find that the situation in and in relation to the Central African Republic, which has been marked by a breakdown of law and order, intersectarian tension, widespread violence and atrocities, and the pervasive, often forced recruitment and use of child soldiers, which threatens the peace, security, or stability of the Central African Republic and neighboring states, and which was addressed by the United Nations Security Council in Resolution 2121 of October 10, 2013, Resolution 2127 of December 5, 2013, and Resolution 2134 of January 28, 2014, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat. I hereby order:
(i) the persons listed in the Annex to this order; and
(ii) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State:
(A) to be responsible for or complicit in, or to have engaged in, directly or indirectly, any of the following in or in relation to the Central African Republic:
(1) actions or policies that threaten the peace, security, or stability of the Central African Republic;
(2) actions or policies that threaten transitional agreements or the political transition process in the Central African Republic;
(3) actions or policies that undermine democratic processes or institutions in the Central African Republic;
(4) the targeting of women, children, or any civilians through the commission of acts of violence (including killing, maiming, torture, or rape or other sexual violence), abduction, forced displacement, or attacks on schools, hospitals, religious sites, or locations where civilians are seeking refuge, or through conduct that would constitute a serious abuse or violation of human rights or a violation of international humanitarian law;
(5) the use or recruitment of children by armed groups or armed forces in the context of the conflict in the Central African Republic;
(6) the obstruction of the delivery or distribution of, or access to, humanitarian assistance;
(7) attacks against United Nations missions, international security presences, or other peacekeeping operations; or
(8) support to persons, including armed groups, involved in activities that threaten the peace, security, or stability of the Central African Republic or that undermine democratic processes or institutions in the Central African Republic through the illicit trade in natural resources of the Central African Republic;
(B) except where intended for the authorized support of humanitarian activities or the authorized use by or support of peacekeeping, international, or government forces, to have directly or indirectly supplied, sold, or transferred to the Central African Republic, or been the recipient in the territory of the Central African Republic of, arms and related materiel, including military aircraft, and equipment, or advice, training, or assistance, including financing and financial assistance, related to military activities;
(C) to be a leader of (i) an entity, including any armed group, that has, or whose members have, engaged in any of the activities described in subsections (a)(ii)(A) or (a)(ii)(B) of this section or (ii) an entity whose property and interests in property are blocked pursuant to this order;
(D) to have materially assisted, sponsored, or provided financial, material, logistical, or technological support for, or goods or services in support of (i) any of the activities described in subsections (a)(ii)(A) or (a)(ii)(B) of this section or (ii) any person whose property and interests in property are blocked pursuant to this order; or
(E) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.
(b) The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the effective date of this order.
Sec. 2. I hereby determine that the making of donations of the type of articles specified in section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to section 1 of this order would seriously impair my ability to deal with this national emergency, and I hereby prohibit such donations as provided by section 1 of this order.
Sec. 3. The prohibitions in section 1 of this order include but are not limited to:
(a) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order; and
(b) the receipt of any contribution or provision of funds, goods, or services from any such person.
Sec. 4. I hereby find that the unrestricted immigrant and nonimmigrant entry into the United States of aliens determined to meet one or more of the criteria in section 1(a) of this order would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants or nonimmigrants, of such persons. Such persons shall be treated as persons covered by section 1 of Proclamation 8693 of July 24, 2011 (Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions).
Sec. 5. (a) Any transaction that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this order is prohibited.
(b) Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited.
Sec. 6. For the purposes of this order:
(a) the term “person” means an individual or entity;
(b) the term “entity” means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization; and
(c) the term “United States person” means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States.
Sec. 7. For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render those measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in this order, there need be no prior notice of a listing or determination made pursuant to section 1 of this order.
Sec. 8. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA and the UNPA, as may be necessary to carry out the purposes of this order. The Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the United States Government consistent with applicable law. All agencies of the United States Government are hereby directed to take all appropriate measures within their authority to carry out the provisions of this order.
Sec. 9. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to determine that circumstances no longer warrant the blocking of the property and interests in property of a person listed in the Annex to this order, and to take necessary action to give effect to that determination.
Sec. 10. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to submit the recurring and final reports to the Congress on the national emergency declared in this order, consistent with section 401(c) of the NEA (50 U.S.C. 1641(c)) and section 204(c) of IEEPA (50 U.S.C. 1703(c)).
Sec. 11. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Sec. 12. This order is effective at 12:01 a.m. eastern daylight time on May 13, 2014.
Surface Transportation Board.
Notice of OMB approval of information collection.
Pursuant to the Paperwork Reduction Act and Office of Management and Budget (OMB) regulations, the Surface Transportation Board has obtained OMB approval for the collection of information adopted by the Board in
OMB approved this collection on June 26, 2014. Unless renewed, OMB approval expires on June 30, 2017.
Pursuant to the PRA and OMB regulations at 5 CFR 1320.11, the Surface Transportation Board has obtained OMB approval for the collection of information adopted by the Board in
This collection, which is codified at 49 CFR part 1333, has been assigned OMB Control No. 2140–0021. The display of a currently valid OMB control number for this collection is required by law. Under the PRA and 5 CFR 1320.8, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS establishes 2014 quota specifications for the Atlantic bluefin tuna (BFT) fishery. This action is necessary to implement binding recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT), as required by the Atlantic Tunas Convention Act (ATCA), and to achieve domestic management objectives under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Effective August 2, 2014 through December 31, 2014.
Supporting documents such as the Environmental Assessments and Fishery Management Plans described below may be downloaded from the HMS Web site at
Sarah McLaughlin or Brad McHale, 978–281–9260.
Atlantic bluefin tuna, bigeye tuna, albacore tuna, yellowfin tuna, and skipjack tuna (hereafter referred to as “Atlantic tunas”) are managed under the dual authority of the Magnuson-Stevens Act and ATCA. As an active member of ICCAT, the United States implements binding ICCAT recommendations. ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate to carry out ICCAT recommendations. The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NMFS.
NMFS annually implements BFT quota specifications to adjust the annual U.S. baseline BFT quota to account for any underharvest or overharvest of the adjusted U.S. BFT quota from the prior year.
In May 2011, NMFS prepared an Environmental Assessment (EA)/Regulatory Impact Review/Final Regulatory Flexibility Analysis for a final rule that: (1) Implemented and allocated the U.S. BFT quota recommended by ICCAT for 2011 and for 2012 (ICCAT Recommendation 10–03); (2) adjusted the 2011 U.S. quota and subquotas to account for unharvested 2010 quota allowed to be carried forward to 2011, and to account for a portion of the estimated 2011 dead discards up front; and (3) implemented several other BFT management measures (76 FR 39019, July 5, 2011). In that final rule, NMFS implemented the 923.7-mt baseline quota consistent with ICCAT Recommendation 10–03 and set the domestic BFT fishing category subquotas per the allocation percentages established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) and implementing regulations (71 FR 58058, October 2, 2006). The baseline quota and category subquotas are codified and remain effective until changed (for instance, if any new ICCAT BFT Total Allowable Catch (TAC) recommendation is adopted). NMFS prepared a Supplemental EA for the 2013 BFT Quota Specifications (78 FR 36685, June 19, 2013) to present updated information regarding the affected environment, including information from a 2012 ICCAT stock assessment for BFT, among other things. ICCAT conducted a stock assessment update in 2013, although the results were not substantively different than those of the 2010 and 2012 assessments, which were analyzed in the May 2011 EA and June 2013 Supplemental EA.
In its 2013 recommendation (Recommendation 13–09—Recommendation by ICCAT Amending the Supplemental Recommendation by ICCAT concerning the Western Atlantic BFT Rebuilding Program), ICCAT recommended a one-year rollover of the 1,750-mt TAC. This amount is expected to allow for continued stock growth under both the low and high stock recruitment scenarios, considering the 2013 ICCAT BFT stock assessment update. The annual U.S. baseline quota for 2014 continues to be 923.7 mt, and the annual total U.S. quota, including 25 mt to account for bycatch related to pelagic longline fisheries in the Northeast Distant gear restricted area (NED), continues to be 948.7 mt.
Until the final specifications for 2014 are effective, the existing BFT baseline quota and subquotas continue to apply as codified. (See Table 1, second column.) Although the baseline quota is unchanged this year because the 2013 ICCAT recommendation included the same TAC as the prior recommendation, NMFS is carrying forward underharvest from 2013, consistent with the 2006 Consolidated HMS FMP and the ICCAT recommendation. Thus, this final action adjusts the quota as appropriate and allowable for the 2014 fishing year. Further background information, including the need for the 2014 BFT quota specifications, was provided in the preamble to the proposed rule (79 FR 18870, April 4, 2014) and is not repeated here.
NMFS determines the amount of BFT quota actually available for the year by adjusting the ICCAT-recommended baseline BFT quota for overharvest or underharvest from the previous fishing year and any accounting for dead discards. For the proposed rule, NMFS used a 219.5-mt estimate as a proxy for potential 2014 dead discards, based on the 2012 estimate of 205.8 mt for the pelagic longline fishery and the 2013 observed dead discards of 13.7 mt for the purse seine fishery, because the BFT pelagic longline dead discard estimate for 2013 was not yet available. The preliminary 2013 pelagic longline dead discard estimate of 127.1 mt is now available from the NMFS Southeast Fisheries Science Center. Adding the
Based on preliminary data available as of May 30, 2014, BFT landings in 2013 totaled 518.6 mt. Adding the 140.8-mt estimate of dead discards results in a preliminary 2013 total catch of 659.4 mt, which is 384.2 mt less than the amount of quota (inclusive of dead discards) allowed under ICCAT Recommendation 13–09 (i.e., 948.7 mt plus 94.9 mt of 2012 underharvest carried forward to 2013, totaling 1,043.6 mt). Thus, the underharvest for 2013 is 384.2 mt. ICCAT limits the amount of underharvest that may be carried forward from one year to the next to no more than 10 percent of a country's total quota, which limits the amount of 2013 U.S. underharvest that may be carried forward to 2014 to 94.9 mt. NMFS anticipated this amount of available underharvest to carry forward to 2014 in the proposed rule.
As anticipated in the proposed rule, for the Longline category, NMFS is accounting up front (i.e., at the beginning of the fishing year) for half of the expected dead discards for 2014, using the best available estimate of dead discards (now the 2013 estimate), and deducting that portion directly from the baseline Longline category subquota. This is the same approach that NMFS took for the final 2011 through 2013 BFT quota specifications. Consistent with that approach, NMFS proposed to deduct half of the anticipated purse seine vessel dead discards from the Purse Seine category subquota up front. NMFS does so in the final rule as well after considering the relevant comments and the relevant regulatory criteria. Thus, for the Purse Seine category NMFS is deducting half of the 2013 observed dead discards (as an estimate of potential 2014 dead discards) from the baseline Purse Seine category subquota.
Regarding the unharvested 2013 BFT quota, NMFS had proposed to carry 94.9 mt of available underharvest forward to 2014 and apply the full 94.9 mt to the Longline category. NMFS stated that any necessary adjustments to the 2014 specifications would be made in the final rule after considering updated 2013 landings information and the 2013 pelagic longline dead discard estimate.
Considering the best available information regarding 2013 landings and estimated dead discards, as well as actual 2014 Longline category BFT landings to date and domestic management needs for 2014, NMFS is finalizing the 2014 BFT specifications as follows: As shown in the third column of Table 1, NMFS is accounting for half of the 2013 pelagic longline dead discard estimate of 127.1 mt (i.e., 63.6 mt) up front by deducting that portion of estimated longline discards directly from the baseline Longline category subquota of 74.8 mt. NMFS is also accounting for half of the 2013 observed purse seine dead discards of 13.7 mt (6.9 mt) up front by deducting that portion of the discards directly from the baseline Purse Seine category subquota of 171.8 mt. NMFS has decided in the final rule to provide 6.9 mt of the 2013 underharvest that can be carried forward to 2014 (i.e., 94.9 mt) to the Purse Seine category and provide the remainder (88.0 mt) to the Longline category (fourth column). Given the reduction in the pelagic longline dead discard estimate from 2012 to 2013, and the associated reduction in the deduction from the Longline category to account for one half of dead discards up front, NMFS has determined that providing 6.9 mt of the available underharvest to the Purse Seine category is appropriate as it provides the Purse Seine category its baseline subquota amount, consistent with NMFS' approach for the past several years of maintaining the directed fishing categories at their baseline quotas. It also provides the Longline category a reasonable amount of quota for 2014 and reduces potential “regulatory discards” that may otherwise result if closure of the Longline category fishery to BFT retention is necessary mid-year, as discussed in the proposed rule.
Although these final quota specifications adjust the Longline quota to an amount greater than its baseline subquota, it is important to note that in 2011 and 2013, the adjusted Longline category quota was substantially lower than the baseline subquota, and it was necessary to close the Longline category fishery to BFT retention in June 2013. The Longline category was also closed in June in 2012 when the base quota was reached. Landings by the directed handgear categories in 2013 did not approach the available quotas for those categories (e.g., 64 percent, 48 percent, and 72 percent of the General, Harpoon, and Angling categories were harvested, respectively). Thus, there is not a demonstrated need for NMFS to expand the subquotas for the directed handgear categories beyond their base subquotas at this time or to provide additional quota to the Reserve category. NMFS will monitor landings closely and may take action to transfer quota among categories, including the Reserve category, if appropriate, based on consideration of the regulatory determination criteria regarding inseason adjustments at § 635.27(a)(8). These criteria include: The usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock; effects of the adjustment on BFT rebuilding and overfishing; effects of the adjustment on accomplishing the objectives of the fishery management plan; variations in seasonal BFT distribution, abundance, or migration patterns; effects of catch rates in one area precluding vessels in another area from having a reasonable opportunity to harvest a portion of the category's quota; and review of dealer reports, daily landing trends, and the availability of BFT on the fishing grounds. In these quota specifications, NMFS is balancing the need of the pelagic longline fishery to continue fishing for swordfish and Atlantic tunas with the need of directed bluefin fisheries participants to receive their base quota.
In this final rule, NMFS deducts half of the 2013 pelagic longline dead discard estimate of 127.1 mt directly from the baseline Longline category quota of 74.8 mt and applies the 88.0 of the 94.9 mt allowed to be carried forward to 2014 to the Longline category, for an adjusted Longline subquota of 99.2 mt (i.e., 74.8 −63.6 + 88.0 = 99.2 mt), not including the 25-mt allocation set aside by ICCAT for the NED. For the Purse Seine category, NMFS deducts half of the 2013 observed dead discards (as an estimate of potential 2014 dead discards) from the baseline Purse Seine category quota of 171.8 mt and applies 6.9 of the 94.9 mt allowed to be carried forward to 2014 for an adjusted quota of 171.8 mt (i.e., 171.8 −6.9 + 6.9 = 171.8 mt). For the handgear categories, as well as the Trap category (in which BFT may be caught incidentally), NMFS maintains the codified baseline BFT quotas and subquotas that were established in July 2011 (76 FR 39019, July 5, 2011), as proposed.
Thus, in accordance with ICCAT Recommendation 13–09, the 2006 Consolidated HMS FMP allocation scheme for the domestic categories, and regulations regarding annual adjustments at § 635.27(a)(10), NMFS establishes BFT quota specifications for
As described in the proposed rule, NMFS considers the specifications approaches taken in 2011 through 2014 as a transition from the method used for 2007 through 2010, as NMFS continues to develop Amendment 7 to the 2006 Consolidated HMS FMP. Among other things, Amendment 7 would reallocate BFT quota among categories in a way to more accurately reflect annual fishery operations and needs while decreasing bycatch in the non-directed fisheries. This amendment will address related BFT fishery management issues consistent with the need to end overfishing and rebuild the stock, including revisiting quota allocations; reducing and accounting for dead discards; adding or modifying time/area closures or gear-restricted areas; and improving the reporting and monitoring of dead discards and landings in all categories. Depending on the management measures implemented in the Amendment 7 final rule, the quota specifications process may be substantially different in upcoming years. NMFS anticipates publishing a final rule to implement Amendment 7 in Fall 2014, with implementation dates varying by topic.
NMFS received a total of nine written comments to the proposed rule, as well as three verbal comments at the HMS Advisory Panel April meeting and a public conference call/webinar.
Few of the comments NMFS received focused specifically on the proposed quota specifications. Below, NMFS summarizes and responds to all comments made specifically on the proposed rule during the comment period. Most of the comments received were outside the scope of this rule and are summarized under “Other Issues” below.
The approach used for these final 2014 quota specifications is an appropriate continuation of the approach used in 2011 through 2013 as a transition from the method used from 2007 through 2010. Changes in ICCAT's approach to western BFT management in 2006 (i.e., discontinuation of the dead discard allowance, and the associated provision that the western Atlantic BFT TAC Catch include dead discards) have had implications for NMFS' domestic management of the fishery, because landings and dead discards must be accounted for within the total U.S. quota (rather than an additional allocation for dead discards). This interim approach balances the needs of the pelagic longline fishery to continue fishing for swordfish and Atlantic tunas with the needs of directed BFT fisheries participants.
Regarding the comments related to the allocations to the General category subquotas, NMFS makes the baseline allocations consistent with the formula established in the 2006 Consolidated HMS FMP. Changes to the baseline BFT subquota allocations and category-specific management measures are outside the scope of this rulemaking. Specific to the General category open season and subquota allocations, these issues are being considered in Amendment 7.
Regarding the pelagic longline fishery, which has a greater proportion of unobserved trips than the purse seine fishery, NMFS currently applies a BFT dead discard extrapolation methodology that has been approved by ICCAT's Standing Committee on Research and Statistics to calculate and report dead discards for both stock assessment purposes and quota compliance purposes. Furthermore, the observed amount of BFT dead discards from the Purse Seine category in 2013 accurately reflects the total 2013 BFT dead discards for that category and it is not necessary to extrapolate the amount, given the recent participation level (number of vessels and trips) and observer coverage in 2013. If such extrapolation were to become necessary, NMFS would consult with its Fisheries Science Centers on the appropriate method.
NMFS does not consider accounting for dead discards within the Purse Seine category to be setting a precedent as characterized by the commenter. Through Amendment 7, NMFS is considering how best to reduce and account for BFT dead discards, as well as methods to improve reporting and monitoring of all BFT discards and landings (i.e., for all gear types) in the future. As stated in the proposed rule, depending on the management measures implemented in the Amendment 7 final rule, the quota specifications process may be substantially different in upcoming years.
In addition to the above comments specifically on the content of the proposed rule, other comments raised issues beyond the scope of this rule, regarding HMS management measures generally, as well as those specifically considered in Amendment 7. Specifically, commenters articulated: support for NMFS to eliminate the annual percentage limit on the total weight of large medium BFT (73 to less than 81 inches) that Purse Seine category vessels can harvest, which the commenters perceive as inconsistent with regulations that apply to other commercial categories, a cause of regulatory discards, and not based on current research on the size of bluefin at maturity; support for allowing Purse Seine category vessels to retain bluefin as small as the ICCAT minimum size (i.e., 47 inches); support for expanded research funding and improved access for researchers to biological samples; support for adaptive management of BFT fisheries for optimal economic, scientific, and conservation returns; full support for implementation of Amendment 7 as proposed; support for 100-percent observer coverage of Purse Seine vessels; opposition to pelagic longlining and harpooning of tunas; opposition to Mediterranean Sea bluefin harvests; and opposition to ICCAT deducting the U.S. 25-mt allocation for bycatch in the vicinity of the western/eastern Atlantic BFT management area boundary from the western Atlantic BFT Total Allowable Catch since 2002, when that language was first added to the western Atlantic BFT Recommendation.
NMFS anticipates that Amendment 7 may address some of the issues raised in comments that were outside the scope of the 2014 BFT quota specifications. Some of the ICCAT issues raised involve international management and could not be addressed by the United States unilaterally. The remaining domestic management issues would have to be considered in the context of future management action(s). In addition to the formal regulatory process of proposed and final rulemaking, NMFS considers issues, discussed management ideas, and obtains public input in the context of the HMS Advisory Panel, which typically convenes twice a year at meetings that are open to the public.
The NMFS Assistant Administrator has determined that this final rule is consistent with the Magnuson-Stevens Act, ATCA, and other applicable law, and is necessary to achieve domestic management objectives under the 2006 Consolidated HMS FMP.
The final rule is exempt from the procedures of E.O. 12866 because this action contains no implementing regulations.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, NMFS has prepared a brochure summarizing fishery information and regulations for Atlantic tuna fisheries for 2014. This brochure also serves as the small entity compliance guide. Copies of the compliance guide are available from NMFS (see
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS is implementing management measures for the 2014 summer flounder, scup, and black sea bass recreational fisheries. The implementing regulations for these fisheries require NMFS to publish recreational measures for the fishing year. The intent of these measures is to prevent overfishing of the summer flounder, scup, and black sea bass resources.
Effective July 7, 2014.
Copies of the Supplemental Environmental Assessment (SEA) for the 2014 recreational management measures document, including the Supplemental Environmental Assessment, Regulatory Impact Review, and Initial Regulatory Flexibility Analysis (SEA/RIR/IRFA) and other supporting documents for the recreational management measures are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 North State Street, Dover, DE 19901. These documents are also accessible via the Internet at
Moira Kelly, Fishery Policy Analyst, (978) 281–9218.
The summer flounder, scup, and black sea bass fisheries are managed
A proposed rule to implement the 2014 Federal recreational measures for the summer flounder, scup, and black sea bass recreational fisheries was published in the
In this rule, NMFS is implementing management measures for the 2014 summer flounder, scup, and black sea bass recreational fisheries. All minimum fish sizes discussed hereafter are total length measurements of the fish, i.e., the straight-line distance from the tip of the snout to the end of the tail while the fish is lying on its side. For black sea bass, total length measurement does not include the caudal fin tendril. All possession limits discussed below are per person.
This rule implements the following measures that would apply in the Federal waters of the EEZ and to all federally permitted party/charter vessels with applicable summer flounder, scup, or black sea bass permits regardless of where they fish: For summer flounder, use of state-by-state conservation equivalency measures, which are the status quo measures; for scup, a 9-inch (22.9-cm) minimum fish size, a 30-fish per person possession limit, and an open season of January 1 through December 31; and, for black sea bass, a 12.5-inch (31.8-cm) minimum fish size, and a 15-fish per person possession limit for open seasons of May 19 through September 21 and October 18 through December 31.
Federal permit holders are reminded that, as a condition of their Federal permit, they must abide by the Federal measures, even if fishing in state waters. In addition, in instances where the state-implemented measures are different than the Federal measures, federally permitted vessels must adhere to the more restrictive of the two measures. This will be applicable for both the 2014 scup and black sea bass recreational fisheries.
This final rule implements the use of conservation equivalency to manage the 2014 summer flounder recreational fishery. NMFS implemented Framework Adjustment 2 to the FMP on July 29, 2001 (66 FR 36208), to permit the use of conservation equivalency to manage the recreational summer flounder fishery. Conservation equivalency allows each state to establish its own recreational management measures to achieve its state harvest limit partitioned from the coastwide recreational harvest limit by the Commission. The combined effect of all of the states' management measures achieves the same level of conservation as would Federal coastwide measures, hence the term conservation equivalency. Framework Adjustment 6 (July 26, 2006; 71 FR 42315) allowed states to form regions for conservation equivalency in order to minimize differences in regulations for individuals fishing in adjacent waters. For 2014, the Commission's Summer Flounder Board voted to implement regional conservation equivalency for the first time. The regions are as follows: (1) Massachusetts; (2) Rhode Island; (3) Connecticut, New York, and New Jersey; (4) Delaware, Maryland, and Virginia; and (5) North Carolina. This means that minimum fish sizes, possession limits, and fishing seasons developed and adopted by the five regions from Massachusetts to North Carolina will replace the Federal waters measures for 2014.
The Commission notified the NMFS Northeast Regional Administrator by letter dated May 19, 2014, that the 2014 summer flounder recreational fishery management measures (i.e., minimum fish size, possession limit, and fishing seasons) implemented by the regions described above have been reviewed by the Commission's Technical Committee and approved by the Commission's Summer Flounder Management Board. The correspondence indicates that the Commission-approved management programs are projected to restrict 2014 recreational summer flounder coastwide landings consistent with the state-specific requirements established by the Technical Committee and Board through the Commission process.
Based on the recommendation of the Commission, the NMFS Greater Atlantic Regional Administrator finds that the recreational summer flounder fishing measures proposed to be implemented by the approved regions for 2014 are the conservation equivalent of the season, minimum size, and possession limit prescribed in §§ 648.104(b), 648.105, and 648.106(a), respectively. According to § 648.107(a)(1), vessels subject to the recreational fishing measures of this part and landing summer flounder in a state with an approved conservation equivalency program shall not be subject to Federal measures, and shall instead be subject to the recreational fishing measures implemented by the state in which they land. Section 648.107(a) has been amended to recognize state-implemented measures as conservation equivalent of the coastwide recreational management measures for 2014. The 2014 summer flounder management measures adopted by the individual states vary according to the state of landing, as specified in Table 1.
In addition, this action implements the coastwide measures (18-inch (45.7-cm) minimum size, 4-fish possession limit, May 1–September 30 open fishing season), to become effective January 1, 2015, when conservation equivalency expires.
This final rule implements the Council and Commission's recommended scup recreational management measures for 2014 in Federal waters. The 2014 scup recreational harvest limit is 7.03 million lb (3,188 mt), as published in the 2013 and 2014 specifications final rule (December 31, 2012; 77 FR 76942). Final 2013 scup recreational landings are 5.11 million lb (2,319 mt), well below the 2013 recreational harvest limit; therefore, no reduction in landings is needed. The measures for the 2014 scup recreational fishery are for a 9-inch (22.9-cm) minimum fish size, a 30-fish per person possession limit, and an open season of January 1 through December 31.
This final rule implements recreational management measures to reduce landings for black sea bass. The 2014 black sea bass recreational harvest limit is 2.26 million lb (1,025 mt). The 2013 black sea bass recreational landings limit was the same, and the projected landings at the time that the Council and Board met to recommend 2014 measures were 2.46 million lb (1,115 mt). This would have required a 7-percent reduction in 2014 landings relative to 2013. Final Marine Recreational Information Program (MRIP) data indicate that the 2013 recreational black sea bass landings were approximately 2.33 million lb (1,058 mt), or 3.2 percent over the 2013 and 2014 recreational harvest limits.
In 2012, recreational black sea bass catch exceeded the 2012 annual catch limit of 2.52 million lb (1,143 mt) by 129 percent, with total catch estimates approximately 5.78 million lb (2,620 mt). As a result, the recently implemented recreational accountability measure needs to be addressed for the 2014 fishing year. The Council's recreational accountability measure system requires, for stocks in a healthy condition such as black sea bass, that the Council take into account the overage and the performance of the management measures when setting a subsequent year's management measures. The Council contends that utilizing the process that they have always used (i.e., comparing last year's landings to this year's harvest limit) is in compliance with the accountability measure.
However, NMFS disagrees with the Council's interpretation. The recreational accountability measures were revised last year in response to a pending pound-for-pound payback that would have otherwise been implemented for this year. In the Omnibus Recreational Accountability Measures Amendment (Final Rule, December 19, 2013; 78 FR 76759), the accountability measure was described as resulting in the Council doing something different than what had previously been done if triggered. That is, the accountability measure requires that the Council take the overage and the poor performance of the management measures “into account.” This may result in the subsequent year's management measures being “less liberal, or more restrictive than otherwise would have been, had the overage not occurred.” This could also mean that the process by which the management measures are set (updated data, more precise estimates of catch per angler per day, etc.) has been improved upon as a result of the poor performance of the management measures, or other decisions or improvements that allow the Council to make a more informed decision and implement management measures with more confidence in their performance. The Council has not sufficiently demonstrated how the “performance review” included the overage from 2012 when setting the 2014 management measures. It appears that the Council's process was the same as it would have been had the overage not occurred and the accountability measure not been triggered. The Council submitted a comment requesting an additional 6 days be added to the September/October season to achieve only a 3-percent reduction in landings, instead of the originally recommended 7 percent reduction, relative to 2013. Prior to the public comment period, the Commission requested that NMFS take into consideration the final 2013 MRIP estimates when taking final action.
Because the reduction in recreational black sea bass landings required from 2013 to 2014 is only 3.2 percent based on final MRIP estimates, and based on comments received from the Council and the Commission, NMFS has determined that measures expected to result in a reduction in landings of approximately 5-percent has a higher likelihood of preventing the recreational harvest limit from being exceeded again, without being unnecessarily punitive. As a result, this final rule implements measures that are different than the proposed measures. The Council's originally proposed measures (12.5-inch (31.8-cm) minimum fish size, 15-fish per person bag limit, and open seasons of May 19 through September 18 and October 18 through December 31) would result in a 7-percent reduction in landings relative to 2013. This rule implements the same minimum size and possession limit as proposed, but adds 3 days in September, so that the fishing season runs from May 19 through
NMFS received three comments regarding the proposed recreational management measures. Two of the commenters both disagreed with the landings information, specifically for black sea bass, but additionally mentioned displeasure over reduced quotas on the recreational but not commercial fishery. In addition, the commenters were concerned about the stock becoming overfished, and that the commercial fishery was able to land more than the recreational fishery. The black sea bass stock is not overfished, and overfishing is not occurring. In addition, the recreational black sea bass fishery has a greater share of the overall quota than the commercial fishery. Both of these commenters appeared to reside in the state of Georgia, and may have been confusing this black sea bass fishery with the one managed by the South Atlantic Fishery Management Council's Snapper/Grouper FMP.
NMFS received a comment letter from the Mid-Atlantic Council's Executive Director further explaining their interpretation of the accountability measure for black sea bass. (See above for more information.) The Council's comment also requested that we extend the black sea bass season by 6 additional days in September. This would be expected to result in a 3-percent reduction in landings, instead of 7 percent. We also received a letter from the Commission, although prior to the formal comment period, requesting that we consider the updated landings estimates when determining the necessary reduction for the black sea bass measures. As described above, while we disagree with the Council's interpretation of their accountability measures, NMFS is implementing measures taking into account both the Council's and the Commission's comments. The proposed measures were initially derived when a 7-percent reduction in landings was believed to be needed. Final MRIP landings information indicates that the 2013 recreational harvest limit was only exceeded by 3.2 percent. If the accountability measure not been triggered by the overage in 2012, all that would be needed is the 3-percent reduction. Implementing only a 3-percent reduction in landings, based upon the same data and the same process, without additional confidence that the measures would be expected to perform better, would not comply with the accountability measure necessary for this fishing year. As a result, this final rule implements measures that would be expected to result in a 5-percent reduction in landings.
As described above, in response to comments received from the Council and the Commission, the black sea bass management measures implemented by this final rule are different than those proposed. The final black sea bass recreational management measures are as follows: 12.5-inch (31.8-cm) minimum fish size; 15 fish per person bag limit; and open seasons of May 19 through September 21 and October 18 through December 31.
The Regional Administrator, Greater Atlantic Region, NMFS, determined that this final rule implementing the 2014 summer flounder, scup, and black sea bass recreational management measures is necessary for the conservation and management of the summer flounder, scup, and black sea bass fisheries, and is consistent with the Magnuson-Stevens Act and other applicable laws.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement for a 30-day delay in effectiveness under the provisions of section 553(d) of the APA because a delay in its effectiveness would not serve any legitimate purpose, while unfairly prejudicing federally permitted charter/party vessels. This action will decrease the minimum size for the recreational scup fishery in Federal waters and allow federally permitted charter/party vessels to be subject to the new summer flounder measures in their respective states. Because some states' summer flounder fisheries are already open or will open during the 30-day period, federally permitted charter/party vessels would be restricted to the existing summer flounder coastwide regulations (18-inch) minimum size and a 2-fish per person possession limit) until the Federal regulations are effective. This would unnecessarily disadvantage the federally permitted vessels, which would be subject to the more restrictive measures while state-licensed vessels could be engaged in fishing activities under this year's management measures. If this final rule were delayed for 30 days, the fishery would likely forego some amount of landings and revenues during the delay period.
While these restrictions would be alleviated after this rule becomes effective, fishermen may be not able to recoup the lost economic opportunity of foregone trips that would result from delaying the effectiveness of this action. Finally, requiring a 30-day delay before the final rule becomes effective would not provide any benefit to the regulated parties. Unlike actions that require an adjustment period to comply with new rules, charter/party operators will not have to purchase new equipment or otherwise expend time or money to comply with these management measures. Rather, complying with this final rule simply means adhering to the published management measures for each relevant species of fish while the charter/party operators are engaged in fishing activities.
In addition, this rule decreases the possession limit for black sea bass, which is an important factor in determining appropriate measures that allow the fishery to achieve, but not exceed, recreational harvest limit. The black sea bass fishery started on May 19, 2014, with a 20-fish possession limit. This rule implements a 15-fish possession limit. Leaving the larger trip limit in place for longer than is necessary could result in the recreational harvest limit being exceeded, potentially compromising the long-term health of the resource and the conservation objectives of the FMP.
For these reasons, the Assistant Administrator finds good cause to waive the 30-day delay and to implement this rule publication in the
This final rule includes the FRFA prepared pursuant to 5 U.S.C. 604(a). The FRFA incorporates the economic impacts described in the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' responses to those comments, and a summary of the analyses completed to support the action. Copies of the EA/RIR/IRFA and SEA are available from the Council and NMFS (see
A description of the reasons why the 2014 recreational management measures for summer flounder, scup, and black sea bass are being implemented, and the objectives of and legal basis for this final rule implementing both actions are
Three comments were received on the proposed rule; however, none addressed the IRFA or economic analysis and the changes to the rule were not related to the economic analysis.
The recreational management measures could affect any recreational angler who fishes for summer flounder, scup, or black sea bass in the EEZ or on a party/charter vessel issued a Federal permit for summer flounder, scup, and/or black sea bass. However, the only regulated entities affected by this action are party/charter vessels issued a Federal permit for summer flounder, scup, and/or black sea bass, and so the RFA analyses are focused on the expected impacts on this segment of the affected public. These vessels are all considered small entities for the purposes of the RFA, i.e., businesses in the recreational fishery with gross revenues of up to $7.0 million. These small entities can be specifically identified in the Federal vessel permit database and would be impacted by the recreational measures, regardless of whether they fish in Federal or state waters. Although fishing opportunities by individual recreational anglers may be impacted by this action, they are not considered small entities under the RFA.
The Council estimated that the measures could affect any of the 777 vessels possessing a Federal charter/party permit for summer flounder, scup, and/or black sea bass in 2012, the most recent year for which complete permit data are available. However, only 346 vessels reported active participation in the 2012 recreational summer flounder, scup, and/or black sea bass fisheries. Further, it was determined, based on improved ownership information, that there were 326 unique fishing business entities. The vast majority of these fishing businesses were solely engaged in for-hire fishing, but some also earned revenue from shellfish and/or finfish fishing. The highest percentage of annual gross revenues though for all 326 fishing businesses was from for-hire fishing. In other words, the revenue from for-hire fishing was greater than the revenue from shellfishing and the revenue from finfish fishing for all 326 business entities. Therefore, all of the affected business entities are classified as for-hire business entities in this analysis.
According to the SBA size standards small for-hire fishing businesses are defined as firms with annual receipts of up to $7 million. Average annual gross revenue estimates calculated from the most recent 3 years (2010–2012) indicate that none of the 326 business entities earned more than $2.4 million from all of their fishing activities (for-hire, shellfish, and finfish). Therefore, all of the affected business entities are considered “small” by the SBA size standards; thus, this action will not disproportionately affect small versus large entities.
No additional reporting, recordkeeping, or other compliance requirements are included in this final rule.
In seeking to minimize the impact of recreational management measures (minimum fish size, possession limit, and fishing season) on small entities (i.e., Federal party/charter permit holders), NMFS is constrained to implementing measures that meet the conservation objectives of the FMP and Magnuson-Stevens Act. Management measures must provide sufficient constraints on recreational landings, such that the established recreational harvest limits have a low likelihood of being exceeded, which might lead to overfishing the stock. This rule maintains the status quo recreational management measures for summer flounder, implements less restrictive management measures for scup, and slightly more restrictive measures for black sea bass in Federal waters.
Next, NMFS considered the recommendation of both the Council and Commission. Both groups recommended implementation of conservation equivalency, with a precautionary default backstop. For NMFS to disapprove the Council's recommendation for conservation equivalency and substitute coastwide management measures, NMFS must reasonably demonstrate that the recommended measures are either inconsistent with applicable law or that the conservation objectives of the FMP will not be achieved by implementing conservation equivalency. NMFS does not find the Council and Commission's recommendation to be inconsistent with the implementing regulations of the FMP at § 648.100 or the Magnuson-Stevens Act, including the 10 National Standards.
The additional metric for consideration by NMFS, applicable to the FRFA, is examination of the economic impacts of the alternatives on small entities consistent with the stated objectives of applicable statutes. As previously stated, both coastwide measures (alternative 1) and conservation equivalency (alternative 2) are projected to achieve the conservation objectives for the 2014 summer flounder recreational fishery. However, the economic impacts of the two alternatives are not projected to be equal in the Council's analyses: The economic impacts on small entities under the coastwide measures management system would vary in comparison to the conservation equivalency system, dependent on the specific state wherein the small entities operate.
Quantitative analyses of the economic impacts associated with conservation equivalency measures are not available. This is because the development of the individual state measures occurs concurrent to the NMFS rulemaking process to ensure timely implementation of final measures for the 2014 recreational fishery; thus, the specific measures implemented by states are not available for economic impact analyses. Instead, qualitative methods were utilized by the Council to
NMFS is implementing the Council and Commission's recommended regional conservation equivalency measures because: (1) NMFS finds no compelling reason to disapprove the Council and Commission's recommended 2014 management system, as the management measures contained in conservation equivalency are projected to provide the necessary restriction on recreational landings to prevent the recreational harvest limit from being exceeded; and (2) the net economic impact to small entities on a coastwide basis are expected to be mitigated, to the extent practicable, for a much larger percentage of small entities.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as the small entity compliance guide was prepared and will be sent to all holders of Federal party/charter permits issued for the summer flounder, scup, and black sea bass fisheries. In addition, copies of this final rule and the small entity compliance guide are available from NMFS (see
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(a) The Regional Administrator has determined that the recreational fishing measures proposed to be implemented by the states of Maine through North Carolina for 2014 are the conservation equivalent of the season, minimum size, and possession limit prescribed in §§ 648.102, 648.103, and 648.105(a), respectively. This determination is based on a recommendation from the Summer Flounder Board of the Atlantic States Marine Fisheries Commission.
(1) Federally permitted vessels subject to the recreational fishing measures of this part, and other recreational fishing vessels harvesting summer flounder in or from the EEZ and subject to the recreational fishing measures of this part, landing summer flounder in a state whose fishery management measures are determined by the Regional Administrator to be conservation equivalent shall not be subject to the more restrictive Federal measures, pursuant to the provisions of § 648.4(b). Those vessels shall be subject to the recreational fishing measures implemented by the state in which they land.
(2) [Reserved]
(b) Federally permitted vessels subject to the recreational fishing measures of this part, and other recreational fishing vessels registered in states and subject to the recreational fishing measures of this part, whose fishery management measures are not determined by the Regional Administrator to be the conservation equivalent of the season, minimum size and possession limit prescribed in §§ 648.102, 648.103(b), and 648.105(a), respectively, due to the lack of, or the reversal of, a conservation equivalent recommendation from the Summer Flounder Board of the Atlantic States Marine Fisheries Commission shall be subject to the following precautionary default measures: Season—May 1 through September 30; minimum size—20 inches (50.8 cm); and possession limit—two fish.
(b)
(a) During the recreational fishing season specified at § 648.146, no person shall possess more than 15 black sea bass in, or harvested from, the EEZ unless that person is the owner or operator of a fishing vessel issued a black sea bass moratorium permit, or is issued a black sea bass dealer permit. Persons aboard a commercial vessel that is not eligible for a black sea bass moratorium permit may not retain more than 15 black sea bass during the recreational fishing season specified at § 648.146. The owner, operator, and crew of a charter or party boat issued a black sea bass moratorium permit are subject to the possession limit when carrying passengers for hire or when carrying more than five crew members for a party boat, or more than three crew members for a charter boat. This possession limit may be adjusted pursuant to the procedures in § 648.142.
Vessels that are not eligible for a moratorium permit under § 648.4(a)(7), and fishermen subject to the possession limit specified in § 648.145(a), may only possess black sea bass from May 19 through September 21, and October 18 through December 31, unless this time period is adjusted pursuant to the procedures in § 648.142.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to amend certain airworthiness regulations for transport category airplanes by upgrading fire safety standards for one type of cargo compartment; establishing fire safety standards for a new type of cargo compartment; and updating related standards for fire extinguishers. The proposed rules are based on recommendations from the Aviation Rulemaking Advisory Committee (ARAC) and the National Transportation Safety Board (NTSB), and they address designs for which airworthiness directives have been issued by both the FAA and the French civil aviation authority, Direction Générale de l'Aviation Civile (DGAC).
Adopting these proposals would eliminate regulatory differences between the airworthiness standards of the U.S. and the European Aviation Safety Agency (EASA), without affecting current industry design practices. These proposed changes would ensure an acceptable level of safety for these types of cargo compartments by standardizing certain requirements, concepts, and procedures.
Send comments on or before October 6, 2014.
Send comments identified by docket number FAA–2014–0001 using any of the following methods:
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For technical questions concerning this action, contact Stephen M. Happenny, Propulsion/Mechanical Systems Branch, ANM–112, Transport Airplane Directorate, Aircraft Certification Service, Federal Aviation Administration, 1601 Lind Ave. SW., Renton, WA 98055–4056; telephone (425) 227–2147; facsimile (425) 227–1232; email:
For legal questions concerning this action, contact Sean Howe, Office of Regional Counsel, ANM–7, Federal Aviation Administration, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone (425) 227–2591; facsimile (425) 227–1007; email:
The FAA's authority to issue rules on 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 III, Section 44701, “General requirements.” Under that section, the FAA is charged with prescribing regulations in the interest of safety for the design and performance of aircraft; regulations and minimum standards in the interest of safety for inspecting, servicing, and overhauling aircraft; and regulations for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it prescribes new safety standards for the design and operation of transport category airplanes.
The purpose of the proposed rulemaking is to harmonize certain Title 14, Code of Federal Regulations (14 CFR) part 25 requirements for fire extinguishers and cargo compartments with the corresponding requirements in Book 1 of EASA Certification Specifications and Acceptable Means of Compliance for Large Airplanes (CS–25).
Applicants for FAA type certification already use the proposed changes through equivalent level of safety findings and special conditions. Harmonizing these requirements with EASA would benefit manufacturers and modifiers by providing them a single set of requirements with which they must show compliance, thereby reducing the cost and complexity of certification and codifying a consistent level of safety.
The proposed rulemaking would limit the size of an existing class of cargo compartments, define a new class of accessible cargo compartments without size limitation, update associated fire extinguisher requirements, update cargo liner and floor panel requirements and their material testing criteria, and propose associated advisory information
1. A new paragraph, (f), would be added to § 25.857 to establish requirements for certification of accessible cargo compartments without size limitation under a new classification, Class F, that must meet safety standards similar to those of Class C cargo compartments or equivalent.
2. Section 25.851(a)(3), “Hand fire extinguishers,” would be revised to extend the existing fire extinguisher requirements for Class A, B, or E cargo or baggage compartments to be applicable to new Class F accessible cargo or baggage compartments defined in the new § 25.857(f). The amended requirements would specify that at least one readily accessible hand fire extinguisher be available to crewmembers in-flight for use in each Class A, B, E, or F compartment.
3. Section 25.851(b)(2), “Built-in fire extinguishers,” would be revised by adding a sentence to the existing regulation to clarify that the capacity of a built-in fire extinguishing/fire suppression system in a Class C and, if installed, a Class F cargo compartment must be adequate to respond to a fire that could occur in any part of the cargo compartment where cargo or baggage may be placed. The FAA is taking this step to harmonize our regulation to the EASA regulation and practice because FAA testing has shown that current methods of compliance are inadequate. Advisory material will provide guidance on acceptable means of compliance with this proposal.
4. Sections 25.855(b), (c), and (h), “Cargo or baggage compartments,” would be revised to require that new Class F cargo compartments have a liner that meets flame penetration standards currently required for Class C cargo compartments unless other means are provided to contain a fire and protect critical systems and structure. In addition, § 25.855(h)(3) would be revised to add a required demonstration of compliance of the dissipation of the extinguishing agent in Class F cargo compartments with designs that incorporate a built-in fire extinguisher(s) for controlling a fire.
5. Section 25.857(b)(1), “Cargo compartment classification,” would be revised to indirectly limit the size of a Class B cargo compartment by requiring a defined firefighting access point.
6. Part I of appendix F to part 25, “Test Criteria and Procedures for Showing Compliance with § 25.853 or § 25.855,” paragraphs (a)(1)(ii) and (a)(2)(iii) would be revised to add a reference to Class F cargo compartment floor panels. Other changes to appendix F to part 25 are being considered as part of a separate rulemaking that may result in a different, but technically equivalent, change.
Part 25 prescribes airworthiness standards for type certification of transport category airplanes for products certified in the United States. EASA CS–25 Book 1 prescribes the corresponding airworthiness standards for products certified in Europe. While part 25 and CS–25 are similar, they differ in several respects. To improve certification efficiency, the FAA tasked ARAC to review existing cargo compartments and fire extinguisher regulations and to recommend changes that would eliminate differences between U.S. and European airworthiness standards, while maintaining or improving the level of safety in the current regulations.
ARAC established the Cargo Standards Harmonization Working Group (CSHWG), assigning it the task of developing new or revised requirements for Class B cargo compartments of transport category airplanes. ARAC also established the Mechanical Systems Harmonization Working Group (MSHWG), assigning it the task of developing new or revised requirements for a built-in fire extinguishing system for existing or new cargo compartment classifications. Each working group was to document its work as a draft NPRM with supporting material or collateral documents, such as advisory circulars. The scope of these taskings included developing similar proposed regulations to amend Joint Aviation Requirements (JAR)–25, the precursor to CS–25, as necessary to achieve harmonization between the FAA and the Joint Aviation Authorities (JAA), the predecessor of EASA. EASA incorporated the ARAC working groups' recommendations into the CS–25 requirements via Amendments 4 and 8, on December 27, 2007, and December 18, 2009, respectively. The FAA agrees with ARAC's recommendations to harmonize U.S. airworthiness standards for cargo compartments and associated fire extinguishers with corresponding EASA regulations and proposes to amend part 25 accordingly. The proposals are not expected to be controversial and should reduce certification costs to industry without adversely affecting safety. The complete analyses for the proposed changes made in response to ARAC recommendations can be found in the ARAC recommendation reports, located in the docket for this rulemaking.
On November 27, 1987, a fire occurred in the Class B cargo compartment of a Boeing Model 747–244B airplane operated by South African Airways. The airplane was on a scheduled flight between Taipei, Taiwan, to Johannesburg, South Africa. It was carrying both passengers and cargo on the main deck, a configuration known as a “combi” and classified as a Class B cargo compartment. The airplane crashed in the Indian Ocean about 140 miles northeast of Mauritius. All people aboard the airplane perished.
The South African Board of Inquiry reported that (1) there was clear indication that a fire broke out in a right hand front pallet (one of six) in the main deck cargo hold, and (2) the fire could not be controlled and consequently led to the crash. The South African Board unanimously agreed with the following findings and conclusions of the FAA Review Team:
1. Existing rules, policies, and procedures being applied to the certification of Class B cargo or baggage compartments for smoke and fire protection, the required quantity of fire extinguishing agent, and the number of portable fire extinguishers are inadequate.
2. The use of pallets to carry cargo in Class B compartments is no longer acceptable.
3. While entry into the cargo compartment is available, not all cargo is accessible.
4. The reliance on crew members to fight a cargo fire must be discontinued.
In response to the South African Airways accident, the FAA issued Airworthiness Directive (AD) 89–18–12 (54 FR 34762, August 21, 1989), which required a number of changes in the standards for Class B cargo compartments located on the main deck of certain large airplanes. The affected airplane models included Boeing Model 707, 727, 737, 747, and 757 series airplanes, and McDonnell Douglas DC–8, DC–9, and DC–10 series airplanes. That AD was superseded twice. The first supersedure, AD 91–10–02 (56 FR 20529, May 6, 1991) was issued after operators and manufacturers reported design and logistics problems in complying with AD 89–18–12. The second AD supersedure was in response to comments received following issuance of the first AD supersedure and the publication of new test data provided by the FAA William J. Hughes Technical Center (57 FR 36918, August
NTSB investigated the South African 747–244B accident and on May 16, 1988, issued the following Safety Recommendations:
1. A–88–61. Until fire detection and suppression methods for Class B cargo compartment fires are evaluated and revised, as necessary, the NTSB recommended that the FAA require all cargo carried in Class B cargo compartments of U.S.-registered transport category airplanes be carried in fire resistant containers.
The FAA responded to this recommendation with the current AD 93–07–15. These proposed revisions to the related regulations and to part I of appendix F to part 25 for fire testing requirements also address this recommendation.
2. A–88–62. The NTSB recommended that the FAA conduct research to establish the fire detection and suppression methods needed to protect transport category airplanes from catastrophic fires in Class B compartments.
To address this recommendation, both the FAA and the JAA conducted research to determine whether Class B cargo compartments might be unsafe. Both authorities concluded that entering the compartment to combat a fire is ineffective for cargo compartments larger than 200 cubic feet in volume. They agreed on the need to conduct tests with actual fires to try to more closely establish the maximum safe Class B cargo compartment size. In coordination with the CSHWG, the Fire Safety Branch of the FAA Technical Center conducted a number of ground tests using an airplane hull with a cargo compartment located in the rear of the passenger cabin. The simulated compartment had smoke detection, ventilation rates, and air balance approximately the same as would be encountered in a flight, and an entry door similar to those in the compartments of smaller transport category airplanes.
Based on that testing, the FAA Technical Center made several observations. During actual fire testing conducted in a simulated Class B cargo compartment with a volume of 175 cubic feet, flight attendants equipped with protective breathing equipment and a hand fire extinguisher, but without protective clothing, were unwilling to enter the cargo compartment when a fire was present. This result led the CSHWG to conclude that reliance on a flight attendant to physically enter the cargo compartment to extinguish a fire was unrealistic, and that a standard based on such an expectation was undesirable.
During other tests, trained fire fighters, dressed in full firefighting gear, found it unnecessary to enter the compartment to extinguish the fire. They were able to extinguish the fire from the doorway.
Based on these findings, the CSHWG recognized that a fire could be effectively combated by direct access, but without entry, to some of these compartments. The CSHWG decided it would not be appropriate to specify a maximum allowable volume for a cargo compartment. Instead, the CSHWG proposal stipulated that, when standing at an access point, the person fighting the fire must be able to reach any part of the compartment with the contents of a hand fire extinguisher. Under the CSHWG proposal, access would be a function of how the compartment was configured rather than volume. In determining access, the CSHWG proposal stipulated that it would not be appropriate to pull baggage or cargo on to the floor of the passenger compartment to gain access to the seat of the fire; such action may introduce a safety hazard to the occupants.
3. A–88–63. The NTSB recommended that the FAA establish fire resistant requirements for the ceiling and sidewall liners in Class B cargo compartments of transport category airplanes that equal or exceed the requirements for Class C as set forth in 14 CFR part 25, appendix F, part III.
The current AD and the proposed revisions to cargo compartment classifications address this recommendation.
Introduction of a new Class F cargo or baggage compartment via § 25.857(f) necessitates an amendment of § 25.851(a)(3) to require at least one readily accessible hand fire extinguisher for use in each new Class F cargo or baggage compartment that is accessible to crewmembers in flight. This is the same requirement currently for Class A, B, or E cargo or baggage compartments.
Section 25.851(b)(2) requires that the capacity of a built-in fire extinguishing system be adequate for any fire likely to occur in the compartment where used, and section 25.21 requires that an applicant prove compliance with the requirements of part 25. The FAA proposes to clarify when a system is “adequate,” and also proposes new guidance governing an acceptable means of demonstrating compliance. EASA implements its requirement CS 25.851(b) to ensure that the system is adequate to control any fire likely to occur anywhere within the compartment. We propose to add a sentence to § 25.851(b) to harmonize with EASA's application of the rule. This new sentence would clarify that an adequate capacity would provide sufficient quantity of agent to combat a fire anywhere baggage or cargo is placed within the cargo compartment and be available for the time required to land and evacuate the airplane.
The key point of this proposed new sentence is that, because of the inability to know in advance the contents of cargo and baggage placed within a cargo compartment, it must be assumed that each piece of baggage or cargo is a potential fuel source and a potential ignition point. This clarification is predicated on the basis that all baggage and cargo placed on board the airplane is done in accordance with the FAA- and EASA-approved manufacturer and operator airplane weights and balance manuals. In addition, placement of all baggage and cargo must be in accordance with all appropriate national civil aviation authority requirements and the manufacturer's loading instructions and limitations.
One effect of this proposed revision would be that the means of compliance that allow averaging of the individual extinguishing agent concentration
Current EASA policy does not accept averaging methods but requires that each individual sensor display the required concentration. The corroborating factors that harmonized the EASA/FAA position included consideration of available test data. In addition, testing at the FAA Technical Center and other data from standardized fire extinguishing evaluation tests indicates that the use of averaging techniques may not show whether adequate concentration levels of fire extinguishing agent exist throughout the compartment to effectively suppress a cargo fire. If a cargo fire occurred, and was subsequently suppressed by Halon 1301, the core of the fire could remain hot for a period of time. If the local concentration of Halon 1301 in the vicinity of the fire core dropped below 3 percent by volume and sufficient oxygen was available, re-ignition could occur. FAA testing and other industry testing have shown that when the Halon 1301 concentration level drops below 3 percent by volume and the cargo fire re-ignites, the convective stirring caused by the heat of the fire may be insufficient to raise the local concentration of Halon 1301 in the vicinity of the fire.
The proposed guidance would suggest means by which gaseous extinguishing agent concentrations could be measured and how the discrete measured data could be interpreted. Also, the proposed guidance would describe a means of compliance that would demonstrate that a “suppressed environment” is maintained in the cargo compartment through landing to enable passengers and crew to evacuate the airplane.
The guidance would contain recommendations regarding markings and placards in the cargo compartment as a means of ensuring that baggage loading personnel do not load baggage and cargo above the safe limit certified by testing.
Section 25.851 provides requirements for built-in fire extinguishing systems regardless of the extinguishing agent or delivery system used. Therefore, it is not limited to halon gaseous agents or any specific agent delivery system provided that such a system is effective in extinguishing/suppressing fire threats in the cargo compartment. Currently industry and the FAA Technical Center are investigating alternative halon replacement agents and other types of delivery systems and extinguishing/suppression systems.
The advisory material would establish guidance for evaluating brief excursions in the concentration readings and if the data from a single measuring point could be time-averaged. Additional laboratory testing is recommended only if critical issues requiring advisory clarification cannot be resolved by other means.
We propose to revise the existing airworthiness requirements for the Class B cargo compartment in § 25.857(b)(1) to indirectly limit the depth, width, and size of Class B cargo compartments by requiring a defined firefighting access point.
Currently, Class B cargo compartments incorporate a separate, approved smoke or fire detection system to give a fire warning at the pilot or flight engineer station. Class B cargo compartments must have sufficient access in flight to enable a crewmember to effectively reach any part of the compartment with the contents of a hand fire extinguisher. These compartments must be designed so that no hazardous quantity of smoke, flames, or extinguishing agent may enter any compartment occupied by the crew or passengers. To protect adjacent structures, Class B cargo compartments must also have a liner meeting the flame penetration standards of § 25.855 and part I of appendix F to part 25. Section 25.858, which was added in Amendment 25–54 (45 FR 66173, September 11, 1980), requires that fire detection systems of Class B cargo compartments provide a visual indication to the flightcrew within one minute after the start of a fire. In addition, the system must be capable of detecting the fire at a temperature significantly below that at which the structural integrity of the airplane is safely decreased.
These standards were initially developed when cargo compartments were relatively small and airplanes were powered by reciprocating engines. With the advent of larger turbine-powered airplanes, cargo compartment sizes, operating altitudes, and route lengths increased. In addition, combination passenger/cargo configurations, or “combis,” were introduced that were designed to carry both passengers and cargo on the main deck. These passenger and cargo compartments are separated by a barrier intended to prevent smoke and gasses from entering occupied areas. In some combis, the barrier is movable to change the available cargo and passenger capacity as needed for specific operational requirements.
There are currently no limitations on the size or the volume of current Class B cargo compartments. For domestic jet transport airplanes, these compartments can range from approximately 200 cubic feet for business jets to 17,000 cubic feet for large transport airplanes.
Based on tests conducted at the FAA Technical Center (57 FR 36918, August 17, 1992), the proposed requirements would effectively limit the size of new design Class B cargo compartments by requiring that a crewmember, standing at any one access point and without stepping into the compartment, be able to extinguish a fire using a hand fire extinguisher. Class B cargo compartments, under the proposed amendment to § 25.857(b)(1), would be smaller than most current compartments because the current rule allows a compartment so large as to require a crewmember to enter the compartment in order to reach and extinguish the fire. The FAA proposes applicable guidance material in the AC associated with this rule.
The requirements in § 25.857(b)(2) and (b)(3) will remain unchanged and will continue to require exclusion of hazardous quantities of smoke, flames, or extinguishing agent from any compartment occupied by the crew or passengers, as well as provision of a separate, approved smoke detector or fire detector system to give warning at the pilot or flight engineer station.
(a) We propose to add a new paragraph, § 25.857(f), to establish a new cargo compartment category, Class F. The new Class F accessible cargo compartments would not be size-limited. There would, however, need to be a means to control or extinguish a fire without requiring a crewmember to enter the compartment to conduct manual firefighting. Other fire safety features proposed for Class F cargo compartments would include: (1) A fire detection system that meets § 25.858, and (2) a means to exclude cargo compartment smoke and fumes from entering occupied spaces. As discussed in paragraph 2(b) of this section, a liner may be necessary, which would be
The proposed Class F accessible cargo compartments would accommodate the carriage of more baggage and cargo in a combi configuration (passengers and cargo on the main deck) and in larger volumes than allowed by the proposed amendment to Class B compartments. In reviewing the existing Class B cargo compartments in transport category airplanes, the CSHWG noted that several combi configurations do not satisfy the concerns about fighting a fire without personnel entering the cargo compartment. However, such combi configurations are necessary to sustain those geographic areas with no means of supply other than air cargo, such as small isolated towns and villages in Alaska and Northern Canada. In considering this issue, ARAC recommended that the FAA propose a new Class F cargo compartment that would allow for flexibility in new airplane designs while ensuring adequate fire control.
Unlike the requirements for Class C cargo Compartments, the proposed Class F would not necessarily be required to have either a built-in fire extinguishing system or a means to control ventilation and drafts within the compartment. Instead, the proposed § 25.857(f)(2) would require that these compartments use either a crewmember to access the compartment with a hand fire extinguisher without entering the compartment or other means of controlling the fire (e.g., a built-in fire extinguisher/suppression system, fire containment covers, or other means that would be discussed in the proposed draft AC 25.857–X). The proposed § 25.857(f)(1) and (f)(3) are identical to the existing § 25.857(c)(1) and (c)(3) applicable to Class C cargo compartments, respectively, and are intended to require the provision of a separate approved smoke detector or fire detector system to give warning at the pilot or flight engineer station as well as exclusion of hazardous quantities of smoke, flames, or extinguishing agent from any compartment occupied by the crew or passengers. In addition, for Class F cargo compartment designs that incorporate a built-in fire extinguisher(s) for controlling fire, §§ 25.851(b) and 25.855(h)(3) would be modified.
(b) The introduction of Class F accessible cargo compartments necessitates revising § 25.855(b) and (c), which currently require a liner or other means of fire protection for Class B through E cargo compartments. We propose to revise § 25.855(b) and (c) to require that new Class F cargo compartments have a liner meeting flame penetration standards currently required for Class C cargo compartments. Class F cargo compartments would not have to have such liners if other means were provided to contain a fire and protect critical systems and structure. The proposed revision would result in retaining the same level of safety regarding fire protection.
Section 25.855(b) would require Class F accessible compartments to have a liner, unless other means provide the necessary fire containment. The CSHWG considered two potential methods for relieving Class F compartments from the liner requirements. These would be included in the proposed AC associated with this proposed rule. One method is to use existing approved (e.g., Class C cargo compartment) containers carried inside the proposed new Class F cargo compartment. The containers themselves suppress fire. This design would provide a means of compliance similar to that offered in one of the options in the combi AD.
A second method, already used in accordance with the combi AD, uses a system to distribute the contents of a hand fire extinguisher throughout the compartment. An external nozzle in the compartment wall or liner connects with the hand fire extinguisher. Internal plumbing carries the extinguishing agent throughout the compartment. This allows the certification of airplanes with compartments with less expensive hardware and does not require a flight crewmember to enter the compartment. The AFM would have to limit operations to a route structure that ensured the airplane could land before the available fire extinguishing capability was exhausted.
(c) The introduction of Class F accessible cargo compartments necessitates revising paragraph (a)(1)(ii) of part I of appendix F to part 25. That paragraph currently requires self-extinguishing floor panels or other approved equivalent means of fire protection to contain a fire and protect critical systems and structure. We propose to revise paragraph (a)(1)(ii) and (a)(2)(iii) to require the floor panels in new Class F cargo compartments meet the flame penetration standards currently required for Class B, C, or E cargo compartments. The proposed revision would result in Class F cargo compartments meeting the same level of safety.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 directs 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 (Pub. L. 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 proposed 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 proposed or final rule does not warrant a full evaluation, this order permits 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 proposed rule. The reasoning for this determination follows:
The FAA tasked the Aviation Rulemaking Advisory Committee (ARAC) through the Cargo Standards Harmonization Working Group (CSHWG) and the Mechanical Systems Harmonization Working Group (MSHWG) to review existing cargo compartments and fire extinguisher regulations and to recommend changes that would eliminate differences between the U.S. and the European
The FAA agrees with the ARAC recommendations to harmonize airworthiness standards for cargo compartments and associated fire extinguishers with the corresponding EASA regulations and proposes to amend part 25 accordingly. The proposed changes would eliminate differences between the U.S. and European airworthiness standards. These efforts are referred to as harmonization.
This proposal is for changes in the standards in part 25 for new airplane designs only. The proposed changes will not apply to existing airplanes. This proposed rule would revise §§ 25.851, “Fire extinguishers;” 25.855, “Cargo or baggage compartments;” 25.857, “Cargo compartment classification;” and appendix F, part I, “Test Criteria and Procedures for Showing Compliance with § 25.853, or § 25.855.”
The FAA estimates that there are higher safety standards and no costs associated with this proposal. A review of current manufacturers of transport category airplanes certificated under part 25 has revealed that all such future airplanes are expected to be certificated under part 25 of both U.S. and EASA (CS–25) airworthiness regulations. Since future certificated transport category airplanes are expected to meet the existing EASA CS–25 Book 1 requirements, and this rule adopts the same EASA requirements, manufacturers would incur no additional cost resulting from this proposal. This proposal may even reduce cost. Without harmonization the manufacturers would meet two sets of standards (EASA and FAA). Meeting two sets of certification requirements raises the cost of developing a new transport category airplane, often with no increase in safety. EASA regulations and associated compliance in the areas affected by the changes in this NPRM are more stringent than FAA regulations and compliance. These safety requirements are increased with no costs, or perhaps at lower costs.
The FAA concludes that the proposed changes would eliminate regulatory differences between the airworthiness standards of the FAA and EASA without affecting current industry design practices resulting in potential cost savings and maintaining current levels of safety. The FAA requests comments with supporting documentation in regard to the conclusions contained in this section.
The FAA has, therefore, determined that this proposed rule is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866.
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 objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required 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, § 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.
As noted above, the proposed changes to part 25 are cost-relieving because this proposed rule creates a single certification standard and removes the burden of having to meet two sets of certification requirements. The FAA believes that this proposed rule would not have a significant economic impact on a substantial number of small entities.
The net effect of the proposed rule is minimum regulatory cost relief. Airplane manufacturers already meet or expect to meet this standard. The FAA uses the size standards from the Small Business Administration for Aircraft Manufacturing that specify companies having less than 1,500 employees are small entities. Given that this proposed rule is cost-relieving and there are no small entity manufacturers of part 25 airplanes with less than 1,500 employees, this proposed rule will not have a significant economic impact on a substantial number of small entities. The FAA requests comments regarding this determination. If an agency determines that a rulemaking will not result in a significant impact on a substantial number of small entities, the head of the agency may so certify under § 605(b) of the RFA. Therefore, as provided in § 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. Please provide detailed economic analysis to support any cost differences.
The Trade Agreements Act of 1979 (Pub. L. 96–39) prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this proposed rule and has determined that the rule is in accord with the Trade Agreements Act as the proposed rule uses European standards as the basis for United States regulation.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 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 million in lieu of $100 million. This proposed rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there would be no new requirement for information collection associated with this proposed rule.
In keeping with U.S. obligations under the Convention on International
Executive Order (EO) 13609, Promoting International Regulatory Cooperation, [77 FR 26413, May 4, 2012] promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policy and agency responsibilities of Executive Order 13609, Promoting International Regulatory Cooperation. The agency has determined that this action would eliminate differences between U.S. aviation standards and those of other civil aviation authorities by creating a single set of certification requirements for transport category airplanes that would be acceptable in both the United States and Europe.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312f of Order 1050.1E and involves no extraordinary circumstances.
The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.
The FAA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, 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 only one time.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.
Proprietary or Confidential Business Information: Commenters should not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to the person identified in the
Under 14 CFR 11.35(b), if the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.
An electronic copy of rulemaking documents may be obtained from the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM–1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267–9680. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.
Aircraft, Aviation safety, Life-limited parts, Reporting and recordkeeping requirements.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of Title 14, Code of Federal Regulations as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
(a) * * *
(3) At least one readily accessible hand fire extinguisher must be available for use in each Class A or Class B cargo or baggage compartment and in each Class E or Class F cargo or baggage compartment that is accessible to crewmembers in flight.
(b) * * *
(2) The capacity of each required built-in fire extinguishing system must be adequate for any fire likely to occur in the compartment where used, considering the volume of the compartment and the ventilation rate. For purposes of this section, a system is adequate if there is sufficient quantity of agent to extinguish the fire or suppress the fire anywhere baggage or cargo is placed within the cargo compartment for the duration required to land and evacuate the airplane.
(b) Each of the following cargo or baggage compartments, as defined in § 25.857, must have a liner that is separate from, but may be attached to, the airplane structure:
(1) Any Class B through Class E cargo or baggage compartment, and
(2) Any Class F cargo or baggage compartment, unless other means of containing a fire and protecting critical systems and structure are provided.
(c) Ceiling and sidewall liner panels of Class C cargo or baggage compartments, and ceiling and sidewall liner panels in Class F cargo or baggage compartments, if installed to meet the requirements of paragraph (b)(2) of this section, must meet the test requirements of part III of appendix F of this part or other approved equivalent methods.
(h) * * *
(3) The dissipation of the extinguishing agent in all Class C compartments or, if applicable, in any Class F compartments.
(b) * * *
(1) There is sufficient access in flight to enable a crewmember, standing at any one access point and without stepping into the compartment, to extinguish a fire occurring in any part of the compartment using a hand fire extinguisher.
(f)
(1) There is a separate approved smoke detector or fire detector system to give warning at the pilot or flight engineer station;
(2) There are means to extinguish or control a fire without requiring a crewmember to enter the compartment; and
(3) There are means to exclude hazardous quantities of smoke, flames, or extinguishing agent from any compartment occupied by the crew or passengers.
(a) * * *
(1) * * *
(ii) Floor covering, textiles (including draperies and upholstery), seat cushions, padding, decorative and nondecorative coated fabrics, leather, trays and galley furnishings, electrical conduit, air ducting, joint and edge covering, liners of Class B and E cargo or baggage compartments, floor panels of Class B, C, E, or F cargo or baggage compartments, cargo covers and transparencies, molded and thermoformed parts, air ducting joints, and trim strips (decorative and chafing), that are constructed of materials not covered in paragraph (a)(1)(iv) of part I of this appendix, must be self-extinguishing when tested vertically in accordance with the applicable portions of part I of this appendix or other approved equivalent means. The average burn length may not exceed 8 inches, and the average flame time after removal of the flame source may not exceed 15 seconds. Drippings from the test specimen may not continue to flame for more than an average of 5 seconds after falling.
(2) * * *
(iii) A cargo or baggage compartment defined in § 25.857 as Class B, C, E, or F must have floor panels constructed of materials which meet the requirements of paragraph (a)(1)(ii) of part I of this appendix and which are separated from the airplane structure (except for attachments). Such panels must be subjected to the 45 degree angle test. The flame may not penetrate (pass through) the material during application of the flame or subsequent to its removal. The average flame time after removal of the flame source may not exceed 15 seconds, and the average glow time may not exceed 10 seconds.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the Ventura County Air Pollution Control District portion of the California State Implementation Plan (SIP). These revisions concern volatile organic compound (VOC) emissions from aerospace assembly and component manufacturing and marine coating operations. We are proposing to approve local rules to regulate these emission sources under the Clean Air Act (CAA or the Act).
Any comments on this proposal must arrive by August 6, 2014.
Submit comments, identified by docket number EPA–R09–OAR–2014–0312, by one of the following methods:
1.
2.
3.
Nancy Levin, EPA Region IX, (415) 942–3848,
This proposal addresses the following Ventura County Air Pollution Control District rules: Rule 74.13 Aerospace Assembly and Component Manufacturing Operations and Rule 74.24 Marine Coating Operations. In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
Based on request from the U.S. Food and Drug Administration, NMFS proposes to lift the closure area referred to as the Northern Temporary Paralytic Shellfish Poisoning Closed Area for bivalve harvesting. NMFS takes this action because this area has not been subject to a toxic algal bloom for several years and testing of bivalve shellfish has demonstrated toxin levels well below those known to cause human illness. In addition, the U.S. Food and Drug Administration has developed an agreement with the Commonwealth of Massachusetts to conduct paralytic shellfish poisoning monitoring of bivalves from the area in accordance with currently accepted paralytic shellfish poisoning testing procedures.
Comments must be received on this action by July 22, 2014.
You may submit comments, identified by NOAA–NMFS–2014–0073, by any of the following methods:
•
•
NMFS will accept anonymous comments. Attachments to electronic comments will be accepted via Microsoft Word, Microsoft Excel, WordPerfect, or Adobe PDF file formats only.
Jason Berthiaume, Fishery Management Specialist, phone: (978) 281–9177, or
In 2005, at the request of the U.S. Food and Drug Administration (FDA), NOAA's National Marine Fisheries Service (NMFS) closed an area of Federal waters off the coasts of New Hampshire and Massachusetts to fishing for bivalve shellfish due to the presence in those waters of the toxins that cause paralytic shellfish poisoning (PSP). Shellfish contaminated with the toxin, if eaten in large enough quantity, can cause illness or death from PSP.
The closure was modified a number of times from 2005–2008, and the remaining closure was subsequently extended from 2008 until 2013. Beginning in 2014, the closure also included a prohibition on the harvest of gastropods.
Recently, NMFS, the FDA, the clam industry, and the Massachusetts Division of Marine Fisheries (DMF) investigated whether this closure is still warranted, and on May 19, 2014, the FDA sent NMFS a letter requesting that we reopen the area known as the Northern Temporary Paralytic Shellfish Poisoning (PSP) Closed Area for bivalve harvesting. This request is based on the premise that the area has not been subject to a toxic algal bloom for several years and testing of bivalve shellfish has demonstrated toxin levels well below those known to cause human illness. In addition, the FDA has developed an agreement with the Commonwealth of Massachusetts to conduct PSP monitoring of bivalves from the area in accordance with currently accepted PSP testing procedures. If the closure is lifted, DMF would test the reopened waters, and if the results yield samples that exceed the threshold for public safety, DMF would inform us to that effect, and we would work with the FDA to reinstate the closure.
If this action is implemented, NMFS would reopen the area referred to as the Northern Temporary PSP Closed Area for bivalve harvesting. This includes the fisheries for Atlantic surfclam and ocean
The areas defined at 50 CFR 648.81(d) and (e), referred to as the Cashes Ledge and the Western Gulf of Maine Essential Fish Habitat Areas (EFH), respectively, overlap with the area that would be reopened. Theses overlapping EFH areas would remain closed to hydraulic clam dredge gear.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries, NOAA, has determined that this proposed rule is consistent with the Atlantic Surfclam and Ocean Quahog Fishery Management Plan, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is as follows.
The proposed measures would only affect vessels holding an active Federal open access surfclam and/or ocean quahog permit. The SBA defines a small commercial shellfish fishing entity as a firm with gross annual receipts not exceeding $5 million. In 2012, a total of 42 vessels reported harvesting surfclams and/or ocean quahogs from Federal waters under the Individual Fishing Quota system. In addition, 12 vessels participated in the limited access Maine ocean quahog fishery, for a total of 54 participants in 2012. Average 2012 gross income was $950,000 per vessel. Each vessel in this analysis is treated as a single entity for purposes of size determination and impact assessment. All 54 commercial fishing entities fall below the SBA size threshold for small commercial shellfish fishing entities, and thus would be considered small entities for the purposes of this analysis.
This rule, if implemented, is expected to have only a slightly beneficial economic impact on affected entities. The surfclam and ocean quahog fishery is managed under an Individual Transferable Quota (ITQ) system, and, since overall quotas are not being changed as a result of this action, no additional harvest would be permitted with this action. However, participating vessels would be able to fish in the Northern Temporary Paralytic Shellfish Poisoning (PSP) Closed Area, in addition to the existing areas open to the harvest of surfclams and ocean quahogs. Those vessels that choose to fish in the area proposed to be opened may experience a reduction in operational costs due to the area's relative close proximity to major fishing ports. As a result, these vessels could see some positive economic impacts. However, these benefits are not expected to be significant as this fishery is typically market limited and, as mentioned above, the fishery is managed under an ITQ, so it is not expected that there would be an increase in overall landings beyond what is allowed under the ITQ.
In addition, due to the seasonal variability of PSP toxin levels, any or all of the area associated with this action could open or close based on PSP conditions. Given the uncertainty as to whether the area would remain open, and since the fishery is managed under an ITQ system, it is not anticipated that there would be an overall increase in participation in the surfclam and ocean quahog fishery due to the opening of this area. Therefore, because this action only proposes to reopen an area that has previously been closed, and because no net change in fishing effort, participation in the fishery, or fishery expenses is expected, this action will not have a significant economic effect on a substantial number of small entities.
This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This proposed rule does not duplicate, overlap, or conflict with other Federal rules.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 648 is proposed to read as follows:
16 U.S.C. 1801
(a) * * *
(10) * * *
(iii) Fish for, harvest, catch, possess or attempt to fish for, harvest, catch, or possess any any sea scallops, except for sea scallops harvested only for adductor muscles and shucked at sea and any gastropod species, including whelks, conchs, and carnivorous snails, unless issued and possessing on board a Letter of Authorization (LOA) from the Regional Administrator authorizing the collection of shellfish and/or gastropods for biological sampling and operating under the terms and conditions of said LOA, in the area of the U.S. Exclusive Economic Zone bound by the following coordinates in the order stated:
(A) 43°00′ N. lat., 71°00′ W. long.;
(B) 43°00′ N. lat., 69°00′ W. long.;
(C) 41°39′ N. lat., 69°00′ W. long.;
(D) 41°39′ N. lat., 71°00′ W. long.; and then ending at the first point.
Animal and Plant Health Inspection Service, USDA.
Revision to and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request a revision to and extension of approval of an information collection associated with the National Poultry Improvement Plan.
We will consider all comments that we receive on or before September 5, 2014.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the National Poultry Improvement Plan, contact Dr. Denise Brinson, Director, National Poultry Improvement Plan, Veterinary Services, APHIS, 1506 Klondike Road, Suite 300, Conyers, GA 30094; (770) 922–3496. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851–2908.
To administer the Plan, APHIS requires a number of information activities and forms, including Veterinary Services (VS) Forms 1–23/1–23A, Appraisal and Indemnity Claim for Animals Destroyed or Materials Destroyed/Continuation Sheet; VS Form 9–2, Flock Selecting and Testing Report; VS Form 9–3, Report of Sales of Hatching Eggs, Chicks, and Poults; VS Form 9–4, Summary of Breeding Flock Participation; VS Form 9–5, Report of Hatcheries, Dealers, and Independent Flocks, Table-Egg Producers, Meat-Type Chicken and Turkey Slaughter Plants Participating in the NPIP; VS Form 9–6, Report of Salmonella Isolations to NPIP Official State Agencies; VS Form 9–7, Investigation of Salmonella Isolations in Poultry; VS Form 9–8, Flock Inspection and Check-Testing Report; VS Form 9–9, Hatchery Inspection Report; VS Form 10–3, Request for Salmonella Serotyping; banding of sentinel birds for identification prior to flock vaccination; memorandums of understanding; and recordkeeping.
Since the last approval of these collection activities, participation in NPIP has risen. In addition to industry participation, which is estimated at 99 percent, backyard chicken farmers who are raising poultry to satisfy the demand due to the increasing number of organic chicken and egg consumers want to join. Many people are also raising chickens and producing eggs for their own use. As a result of the increase in participation, the estimated annual number of respondents has increased from 10,800 to 18,097, and the estimated annual total burden has increased from 103,363 hours to 104,311 hours. Though the number of respondents increased, there was not a commensurate increase in the burden because of NPIP procedural changes. For instance, due to the information that can be obtained from NPIP's Web site, NPIP no longer sends letters to all NPIP participants and no longer prints participant directories.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities, as described, for 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Reinstatement of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request a reinstatement of an information collection to support the National Animal Health Monitoring System's Equine 2015 Study to support the equine industry in the United States.
We will consider all comments that we receive on or before September 5, 2014.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the Equine 2015 Study, contact Mr. Chris Quatrano, Industry Analyst, Centers for Epidemiology and Animal Health, VS, APHIS, 2150 Centre Avenue, Building B MS 2E7, Fort Collins, CO 80526; (970) 494–7207. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851–2908.
NAHMS' national studies are a collaborative industry and Government initiative to help determine the most effective means of preventing and controlling diseases of livestock. APHIS is the only agency responsible for collecting national data on livestock health. Participation in any NAHMS study is voluntary.
APHIS plans to conduct an Equine 2015 Study as part of an ongoing series of NAHMS studies on the U.S. livestock population. The purpose of this study is to:
• Describe trends in equine care and health management for study years 1998, 2005, and 2015;
• Estimate the occurrence of owner-reported lameness and describe practices associated with the management of lameness;
• Describe health and management practices associated with important equine infectious diseases;
• Describe animal health related costs of equine ownership;
• Evaluate control practices for gastrointestinal parasites;
• Evaluate horses for presence of ticks and describe tick-control practices used on equine operations; and
• Collect equine sera along with equine demographic information in order to create a serum bank for future studies.
The Equine 2015 Study will consist of on-farm questionnaires and a biological collection administered by National Agricultural Statistics Service enumerators and APHIS-designated data collectors. States are selected for participation based on the number of operations with equids and on the equid inventory. The goal is to include States that, combined, account for at least 70 percent of the operations and inventory in the United States. For each State, a weighted average of operations and inventory is calculated, with inventory weighted slightly higher. Generally, States with at least 2 percent of the U.S. total weighted average are selected to participate in the survey. States may also be included based on industry interest or for geographic representation.
The information collected will be used to:
• Direct future equine industry education;
• Allow equine owners and managers to compare their health management practices and disease prevalence in their equids with national and regional estimates;
• Identify research needs;
• Describe trends in equine health and management over time; and
• Provide baseline information to assist with policy development.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies, such as electronic submission of responses.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Architectural and Transportation Barriers Compliance Board.
Notice.
Notice is given of the appointment of members to a performance review board for the Architectural and Transportation Barriers Compliance Board (Access Board).
David M. Capozzi, Executive Director, Access Board, 1331 F Street NW., Suite 1000, Washington, DC 20004–1111. Telephone (202) 272–0010.
Section 4314 (c) of Title 5, U.S.C., requires each agency to establish, in accordance with regulations, one or more Senior Executive Service (SES) performance review boards. The function of the boards is to review and evaluate the initial appraisal of senior executives' performance and make recommendations to the appointing authority relative to the performance of these executives. Because of its small size, the Access Board has appointed SES career members from other federal agencies to serve on its performance review board. The members of the performance review board for the Access Board are:
• Craig Luigart, Chief Information Officer, Veterans Health Administration, Department of Veterans Affairs;
• Georgia Coffey, Deputy Assistant Secretary for Diversity and Inclusion, Department of Veterans Affairs;
• Rebecca Bond, Chief, Disability Rights Section, Department of Justice.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Sea turtles can become accidentally entangled in active or discarded fishing gear, marine debris, or other lines in the marine environment. These entanglements may prevent the recovery of endangered and threatened sea turtle populations. NOAA's Marine Fisheries Service (NMFS) established the Sea Turtle Disentanglement Network in response to the threat of entanglement, in particular in the vertical line of fixed gear fisheries. The Network's goals are to increase reporting and to reduce sea turtle serious injury and mortality associated with these events. As there is limited to no observer coverage of pot gear fisheries, NMFS relies on the Network, the United States Coast Guard (USCG), the fishing industry, Federal, state, and local authorities, and the public for this information, which helps NMFS understand the threats to sea turtle populations in the Northeast Region (Maine to Virginia).
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On June 5, 2008, the Department of Commerce (the Department) initiated sunset reviews of the antidumping duty orders on polyvinyl alcohol (PVA) from Japan, the Republic of Korea (Korea), and the People's Republic of China (PRC)
Alice Maldonado at (202) 482–4682, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue NW., Washington, DC 20230.
On March 3, 2014, the Department published the notice of initiation of the sunset reviews of the antidumping duty orders on PVA from Japan, Korea, and the PRC pursuant to section 751(c) of the Act.
The Department received notices of intent to participate from E.I. du Pont de Nemours and Company and Sekisui Specialty Chemical America, LLC (collectively, “the domestic interested parties”) within the deadline specified in 19 CFR 351.218(d)(1)(i). The companies claimed interested party status under section 771(9)(C) of the Act as manufacturers of a domestic like product in the United States.
The Department received complete substantive responses to the notice of initiation from the domestic interested parties within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i). We received no substantive responses from respondent interested parties with respect to any of the orders covered by these sunset reviews, nor was a hearing requested. As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted expedited (120-day) sunset reviews of the antidumping duty orders for Japan, Korea, and the PRC.
The merchandise covered by these orders is PVA. This product consists of all PVA hydrolyzed in excess of 80 percent, whether or not mixed or diluted with commercial levels of defoamer or boric acid, except as noted below.
The following products are specifically excluded from the scope of these orders:
(1) PVA in fiber form.
(2) PVA with hydrolysis less than 83 mole percent and certified not for use in the production of textiles.
(3) PVA with hydrolysis greater than 85 percent and viscosity greater than or equal to 90 cps.
(4) PVA with a hydrolysis greater than 85 percent, viscosity greater than or equal to 80 cps but less than 90 cps, certified for use in an ink jet application.
(5) PVA for use in the manufacture of an excipient or as an excipient in the manufacture of film coating systems which are components of a drug or dietary supplement, and accompanied by an end-use certification.
(6) PVA covalently bonded with cationic monomer uniformly present on all polymer chains in a concentration equal to or greater than one mole percent.
(7) PVA covalently bonded with carboxylic acid uniformly present on all polymer chains in a concentration equal to or greater than two mole percent, certified for use in a paper application.
(8) PVA covalently bonded with thiol uniformly present on all polymer chains, certified for use in emulsion polymerization of non-vinyl acetic material.
(9) PVA covalently bonded with paraffin uniformly present on all polymer chains in a concentration equal to or greater than one mole percent.
(10) PVA covalently bonded with silan uniformly present on all polymer chains certified for use in paper coating applications.
(11) PVA covalently bonded with sulfonic acid uniformly present on all polymer chains in a concentration level equal to or greater than one mole percent.
(12) PVA covalently bonded with acetoacetylate uniformly present on all polymer chains in a concentration level equal to or greater than one mole percent.
(13) PVA covalently bonded with polyethylene oxide uniformly present on all polymer chains in a concentration level equal to or greater than one mole percent.
(14) PVA covalently bonded with quaternary amine uniformly present on all polymer chains in a concentration level equal to or greater than one mole percent.
(15) PVA covalently bonded with diacetoneacrylamide uniformly present on all polymer chains in a concentration level greater than three mole percent, certified for use in a paper application.
The merchandise subject to these orders is currently classifiable under subheading 3905.30.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of these orders is dispositive.
All issues raised in these reviews are addressed in the “Decision Memorandum for the Expedited Sunset Reviews of the Antidumping Duty Orders on Polyvinyl Alcohol from Japan, the Republic of Korea, and the People's Republic of China” from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald Lorentzen, Acting Assistant Secretary for Enforcement and Compliance (June 30, 2014) (Decision Memo), which is hereby adopted by this notice. The issues discussed in the Decision Memo include the likelihood of continuation or recurrence of dumping and the magnitude of the margins of dumping likely to prevail if the orders were revoked. The Decision Memo is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). IA ACCESS is available to registered users at
The Department determines that revocation of the antidumping duty orders on PVA from Japan, Korea, and the PRC would be likely to lead to continuation or recurrence of dumping, and that the margins of dumping likely to prevail are the following rates:
This notice serves as the only reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a). Timely notification of the destruction of APO materials or conversion to judicial protective orders is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these results in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act and 19 CFR 351.221(c)(5)(ii).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Gulf of Mexico Fishery Management Council (GMFMC) and the South Atlantic Fishery Management Council (SAFMC) will hold a meeting of its Joint Council Committee on South Florida Management Issues and the Ad Hoc Goliath Grouper Joint Council Steering Committee in Key Largo, FL.
The meeting will be held from 9 a.m. Tuesday, July 22, 2014 until 12 noon on Thursday, July 24, 2014.
Mr. Douglas Gregory, Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348–1630; fax: (813) 348–1711; email:
The items of discussion on the agenda are as follows:
Joint Council Committee on South Florida Management Issues will be convened to provide Discussion and Feedback on the Recommendations from Ad Hoc Goliath Grouper Joint Committee
The Agenda is subject to change, and the latest version will be posted on the Council's file server, which can be accessed by going to the Council Web site at
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council Office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Whiting Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Wednesday, July 23, 2014 at 9:30 a.m.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492.
The Whiting Committee will meet and discuss management adjustments to be included in the 2015–17 specifications package. Following the Scientific and Statistical Committee approval of Acceptable Biological Catches and Annual Catch Limits in late August based on an operational assessment and recommendations of the Whiting Plan Development Team, the Council will hold a first specifications meeting in September, 2014 and approve final adjustments in November, 2014.
Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during this meeting. Actions will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465–0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Mid-Atlantic Fishery Management Council's (MAFMC) Bluefish Monitoring Committee and Summer Flounder, Scup, and Black Sea Bass Monitoring Committee will hold public meetings.
The Monitoring Committees will meet on Friday, July 25, from 9 a.m. until 2:30 p.m. See
The meeting will be held via webinar, accessible at:
Christopher M. Moore Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901; telephone: (302) 526–5255.
The Bluefish Monitoring Committee will meet from 9 a.m. to 10 a.m. on Friday, July 25 to discuss and recommend 2015 annual catch targets (ACTs) and other associated management measures for the bluefish fishery. The Summer Flounder, Scup, and Black Sea Bass Monitoring Committee will meet from 10 a.m. to 2: 30 p.m. to review and discuss previously implemented 2015 annual catch targets (ACTs) and other associated management measures for the summer flounder, scup, and black sea bass fisheries. The Summer Flounder, Scup, and Black Sea Bass Monitoring Committee may consider recommending changes to the implemented 2015 ACTs and management measures as necessary. Meeting materials will be posted to
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Saunders at the Mid-Atlantic Council Office, (302) 526–5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
Notice is hereby given that a public display permit has been issued to Sea World, Inc., 9205 South Park Circle, Suite 400, Orlando, FL 32819.
The application and related documents are available for review upon written request or by appointment at the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376.
Jennifer Skidmore or Amy Sloan, (301) 427–8401.
On February 4, 2013, notice was published in the
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and deletions from the Procurement List.
This action adds products and a service to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products from the Procurement List previously furnished by such agencies.
Effective Date: 8/7/2014
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 10800, Arlington, Virginia 22202–4149.
Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 5/16/2014 (79 FR 28490–28491); 5/30/2014 (79 FR 31095–31096); and 6/6/2014 (79 FR 32716–32718), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and service and impact of the additions on the current or most recent contractors, the Committee has determined that the products and service listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and service to the Government.
2. The action will result in authorizing small entities to furnish the products and service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 USC 8501–8506) in connection with the products and service proposed for addition to the Procurement List.
Accordingly, the following products and service are added to the Procurement List:
On 5/23/2014 (79 FR 29747), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities.
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 USC 8501–8506) in connection with the products deleted from the Procurement List.
Accordingly, the following products are deleted from the Procurement List:
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (CFTC) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before September 5, 2014.
You may submit comments, identified by “Whistleblower Provision and Updated Form TCR,” by any of the following methods:
•
•
•
•
Please submit your comments using only one method.
Eduardo Martinez, Attorney, Whistleblower Office, Commodity Futures Trading Commission, (202) 418–5979; email:
Under the PRA, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of Information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, the CFTC invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of collection of information on those who
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
National Assessment Governing Board, U.S. Department of Education.
Notice of Open and Closed Meeting Sessions.
This notice sets forth the schedule and proposed agenda for the upcoming meeting of the National Assessment Governing Board (Board) and also describes the specific functions of the Board. Notice of this meeting is required under Section 10(a)(2) of the Federal Advisory Committee Act. This notice is issued to provide members of the general public with an opportunity to attend and/or provide comments. Individuals who will need special accommodations in order to attend the meeting (e.g. interpreting services, assistive listening devices, materials in alternative format) should notify Munira Mwalimu at 202–357–6938 or at
July 31–August 2, 2014.
Munira Mwalimu, Executive Officer, National Assessment Governing Board, 800 North Capitol Street NW., Suite 825, Washington, DC, 20002–4233, Telephone: (202) 357–6938.
The National Assessment Governing Board (Board) is established under section 302 of the National Assessment of Educational Progress Authorization Act.
The Board is established to formulate policy guidelines for the National Assessment of Educational Progress (NAEP). The Board's responsibilities include the following: selecting subject areas to be assessed, developing assessment frameworks and specifications, developing appropriate student achievement levels for each grade and subject tested, developing standards and procedures for interstate and national comparisons, developing guidelines for reporting and disseminating results, and releasing initial NAEP results to the public.
On July 31, 2014, from 8:30 a.m. to 4:00 p.m. the Assessment Development Committee will meet in closed session to review secure NAEP test items in grades 4, 8 and 12 for the 2015 operational assessment in science. The Committee will review and discuss secure test items that cannot be discussed in an open meeting to protect the confidentiality of the secure assessment materials. Premature disclosure of these results would significantly impede implementation of the NAEP assessment program, and is therefore protected by exemption 9(B) of section 552b(c) of Title 5 United States Code.
The Board's Assessment Literacy Work Group will meet in open session on July 31, 2014, from 2:00 p.m. to 4:00 p.m. The Work Group will discuss strategies and timelines related to their work on promoting a better understanding of educational tests among parents and members of the general public.
The Board's Executive Committee will convene on July 31, 2014 in open session from 4:30 p.m. to 5:00 p.m. to
Following this session, the Executive Committee will meet in closed session from 5:00 p.m. to 5:30 p.m. to receive and discuss costs for specific activities under individual and collective current contracts, and independent government cost estimates from the National Center for Education Statistics (NCES) staff on various options for proposed item development, data collection, scoring and analysis, and reporting of NAEP for 2014–2018. The implications of the cost estimates and funds in support of the NAEP Assessment Schedule and future NAEP activities will also be discussed. This part of the meeting must be conducted in closed session because public disclosure of this information would likely have an adverse financial effect on the NAEP program by providing confidential cost details and proprietary contract costs of current contractors to the public. Discussion of this information would be likely to significantly impede implementation of a proposed agency action if conducted in open session. Such matters are protected by exemption 9(B) of section 552b of Title 5 U.S.C.
On August 1, 2014, the full Board will meet in open session from 8:30 a.m. to 9:30 a.m. The Board will review and approve the August 2014 Board meeting agenda and meeting minutes from the May 15–17, 2014 Quarterly Board meeting. This session will be followed by the Chairman's remarks. Following these remarks, the Executive Director of the Governing Board will provide a report, followed by updates on the National Center for Education Statistics (NCES) and NAEP from the Director of the Institute of Education Sciences (IES). Thereafter, the Board will recess for Committee meetings from 9:45 a.m. to 12:30 p.m.
The Reporting and Dissemination Committee, Assessment Development Committee, and the Committee on Standards, Design and Methodology (COSDAM) will meet in open sessions from 9:45 a.m. to 12:30 p.m.
Following the Committee meetings, the Board will convene in closed session from 12:45 p.m. to 1:45 p.m. to receive a briefing and discuss the NAEP Report on School Composition and the Black-White Achievement Gap. The Board will receive an embargoed briefing on preliminary results, which will include assessment data and results that cannot be discussed in an open meeting prior to their official approval and release by the National Assessment Governing Board. Premature disclosure of these results would significantly impede implementation of the NAEP assessment program, and is therefore protected by exemption 9(B) of section 552b(c) of Title 5 United States Code.
On August 1, 2014 from 2:00 p.m. to 3:15 p.m., the Board will meet in open session to engage in a question and answer session with representatives from the Common Core State Assessment Consortia. Thereafter, from 3:30 p.m. to 5:00 p.m., the Board will meet in closed session to discuss and take action on the NAEP Schedule of Assessments. The action will require discussions on independent government cost estimates that will likely have an impact on the NAEP Schedule of Assessments. This part of the meeting must be conducted in closed session because public disclosure of this information would likely have an adverse financial effect on the NAEP program by providing contractors attending an unfair advantage in procurement and contract negotiations for NAEP. Discussion of this information would be likely to significantly impede implementation of a proposed agency action if conducted in open session. Such matters are protected by exemption 9(B) of section 552b of Title 5 U.S.C.
On August 2, 2014, the Nominations Committee will meet in closed session from 7:30 a.m. to 8:15 a.m. to discuss candidates for the eight Board vacancies for terms beginning on October 1, 2015. The Committee's discussions pertain solely to internal personnel rules and practices of an agency and information of a personal nature where disclosure would constitute an unwarranted invasion of personal privacy. As such, the discussions are protected by exemptions 2 and 6 of section 552b(c) of Title 5 of the United States Code.
On August 2, 2014, the Board will meet in open session from 8:30 a.m. to 12:00 p.m. The Board will receive a briefing on an Inside NAEP series—Expanding Scales to Improve Achievement from 8:30 a.m. to 9:30 a.m. Following this session, from 9:30 a.m. to 10:15 a.m. the Board will receive a briefing on research work on NAEP Contextual Questions.
Outgoing Board members Brent Houston, Tom Luna, and David Driscoll will provide remarks from 10:30 a.m. to 10:45 a.m. The Board is scheduled to receive reports from the standing Committees and take action on Committee recommendations from 10:45 a.m. to 12:00 p.m. The August 2, 2014 meeting is scheduled to adjourn at 12:00 p.m.
A verbatim transcript of the meeting, consistent with the policy of section 5 U.S.C. 552b(c) will be available to the public within 14 days of the meeting. Records are kept of all Board proceedings and are available for public inspection at the U.S. Department of Education, National Assessment Governing Board, Suite #825, 800 North Capitol Street NW., Washington, DC 20002, from 9:00 a.m. to 5:00 p.m. Eastern Time, Monday through Friday.
Electronic Access to This Document: You may view this document, as well as all other documents of this Department published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at
Note: The official version of this document is the document published in the
In notice document 2014–15386 beginning on page 37303 in the issue of Tuesday, July 1, 2014, make the following correction:
On page 37306, in the third column, under “IX. Contact Information,” starting in the second line,
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared this environmental assessment (EA) for the Clarksville Natural Gas Interconnect Pipeline Project proposed by City of Clarksville, Tennessee (Clarksville) in the above-referenced docket. Clarksville requests authorization to construct pipeline facilities in Todd County, Kentucky and Montgomery County, Tennessee to provide access to additional natural gas sources to serve Clarksville's retail distribution system.
The EA assesses the potential environmental effects of the construction and operation of the Clarksville Natural Gas Interconnect Pipeline Project in accordance with the requirements of the National Environmental Policy Act of 1969. The FERC staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.
The U.S. Army Corps of Engineers participated as a cooperating agency in the preparation of the EA. Cooperating agencies have jurisdiction by law or special expertise with respect to resources potentially affected by the proposal and participate in the NEPA analysis.
The proposed Clarksville Natural Gas Interconnect Pipeline Project includes the following facilities:
• 20.8 miles of 12-inch-diameter pipeline in Todd County, Kentucky; and
• a pressure-reducing valve station at milepost 0.0 in Todd County, Kentucky.
The FERC staff mailed copies of the EA to federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American tribes; potentially affected landowners and other interested individuals and groups; newspapers and libraries in the project area; and parties to this proceeding.
In addition, the EA is available for public viewing on the FERC's Web site (
Any person wishing to comment on the EA may do so. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that the Commission has the opportunity to consider your comments prior to making its decision on this project, it is important that we receive your comments in Washington, DC on or before July 30, 2014.
For your convenience, there are three methods you can use to submit your comments to the Commission. In all instances, please reference the project docket number (CP14–101–000) with your submission. The Commission encourages electronic filing of comments and has dedicated eFiling expert staff available to assist you at 202–502–8258 or
(1) You may file your comments electronically by using the eComment feature, which is located on the Commission's Internet Web site at
(2) You may file your comments electronically by using the eFiling feature, which is located at
(3) You may file a paper copy of your comments at the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214).
Additional information about the project is available from the Commission's Office of External Affairs at (866) 208–FERC or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notifications of these filings, document summaries, and direct links to the documents. Go to
Take notice that on June 13, 2014, the Bonneville Power Administration resubmitted Appendix A to its Proposed 2014 Wholesale Power and Transmission Rates Rate Adjustment to be effective 9/27/2013.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on June 26, 2014, pursuant to Rule 207 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207(a)(2), Beaver Falls Municipal Authority (BFMA) filed a petition for declaratory order seeking limited waiver of the Commission's small power production qualifying (QF) filing regulations set forth in 18 CFR 292.203(a)(3) from March 17, 2006 to November 15, 2003 when BFMA inadvertently failed to file its QF self-certification with the Commission.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Petitioner.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on June 25, 2014, Texas Eastern Transmission, LP (Texas Eastern), 5400 Westheimer Court, Houston, Texas 77056–5310, filed a prior notice application pursuant to section 7(b) of the Natural Gas Act (NGA) and sections 157.205 and 157.216 of the Federal Energy Regulatory Commission's (Commission) regulations under the NGA, and Texas Eastern's blanket certificate issued in Docket No. CP82–535–000, for authorization to abandon certain inactive supply laterals located in offshore federal waters in the Gulf of Mexico near Louisiana. Specifically, Texas Eastern proposes to abandon in place approximately 5.2 miles of 12-inch diameter pipeline (Line 40–B–3–B), all as more fully set forth in the application, which is open to the public for inspection. The filing may also be viewed on the Web at
Any questions regarding this application should be directed to Lisa A. Connolly, General Manager, Rates & Certificates, Texas Eastern Transmission, LP, P.O. Box 1642, Houston, Texas 77251–1642, or phone (713) 627–4102 or fax (713) 627–5947 or by email
Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to Section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenter will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that on June 17, 2014, Columbia Gas Transmission, LLC (Columbia), 5151 San Felipe, Suite 2500, Houston, TX 77056, filed a prior notice application pursuant to section 7(b) of the Natural Gas Act (NGA) and sections 157.205 and 157.216 of the Federal Energy Regulatory Commission's (Commission) regulations under the NGA, and Columbia's blanket certificate issued in Docket No. CP83–76–000, for authorization to abandon by removal four compressor units and various appurtenant facilities and structures at Huff Creek Compressor Station situated in Wyoming County, West Virginia, all as more fully set forth in the application, which is open to the public for inspection. The filing may also be viewed on the Web at
Any questions regarding this application should be directed to Fredric J. George, Senior Counsel, Columbia Gas Transmission, LLC, P.O. Box 1273, Charleston, West Virginia 25325–1273, or phone (304) 357–2359 or fax (304) 357–3206 or by email
Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to Section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenter will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Environmental Protection Agency (EPA).
Notice.
EPA is required under the Toxic Substances Control Act (TSCA) to publish in the
Comments identified by the specific PMN number or TME number, must be received on or before August 6, 2014.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2014–0381, and the specific PMN number or TME number for the chemical related to your comment, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the PMNs addressed in this action.
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
This document provides receipt and status reports, which cover the period from May 23, 2013 to September 30, 2013, and consists of the PMNs and TMEs both pending and/or expired, and the NOCs to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
Section 5 of TSCA requires that EPA periodical publish in the
EPA classifies a chemical substance as either an “existing” chemical or a “new” chemical. Any chemical substance that is not on EPA's TSCA Inventory is classified as a “new chemical,” while those that are on the TSCA Inventory are classified as an “existing chemical.” For more information about the TSCA Inventory go to:
Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
In Table I of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: The EPA case number assigned to the PMN, the date the PMN was received by EPA, the projected end date for EPA's review of the PMN, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the PMN, and the chemical identity.
In Table II of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs received by EPA during this period: The EPA case number assigned to the NOC, the date the NOC was received by EPA, the projected end date for EPA's review of the NOC, and chemical identity.
If you are interested in information that is not included in these tables, you may contact EPA as described in Unit III. to access additional non-CBI information that may be available.
Environmental protection, Chemicals, Hazardous substances, Imports, Notice of commencement, Premanufacturer, Reporting and recordkeeping requirements, Test marketing exemptions.
Environmental Protection Agency (EPA).
Notice.
EPA is required under the Toxic Substances Control Act (TSCA) to publish in the
Comments identified by the specific PMN number or TME number, must be received on or before August 6, 2014.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2014–0462, and the specific PMN number or TME number for the chemical related to your comment, by one of the following methods:
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•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the PMNs addressed in this action.
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2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
This document provides receipt and status reports, which cover the period from October 1, 2013 to January 30, 2014, and consists of the PMNs pending and/or expired, and the NOCs to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
Section 5 of TSCA requires that EPA periodically publish in the
EPA classifies a chemical substance as either an “existing” chemical or a “new” chemical. Any chemical substance that is not on EPA's TSCA Inventory is classified as a “new chemical,” while those that are on the TSCA Inventory are classified as an “existing chemical.” For more information about the TSCA Inventory go to:
Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
In Table I. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: The EPA case number assigned to the PMN, the date the PMN was received by EPA, the projected end date for EPA's review of the PMN, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the PMN, and the chemical identity.
In Table II. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs received by EPA during this period: The EPA case number assigned to the NOC, the date the NOC was received by EPA, the projected end date for EPA's review of the NOC, and chemical identity.
If you are interested in information that is not included in these tables, you may contact EPA as described in Unit III. to access additional non-CBI information that may be available.
Environmental protection, Chemicals, Hazardous substances, Imports, Notice of commencement, Premanufacturer, Reporting and recordkeeping requirements, Test marketing exemptions.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency's (EPA), Science Advisory Board (SAB) Staff Office is announcing a meeting of the SAB's Scientific and Technological Achievement Awards (STAA) Committee to discuss SAB recommendations regarding the Agency's 2014 STAA recipients. The SAB meeting will be closed to the public.
The SAB meeting dates are Monday and Tuesday, July 28 and 29, 2014, from 8:00 a.m. to 6:00 p.m. (eastern time).
The closed SAB meeting will be held at the Ronald Reagan Building and International Trade Center, Suite 31146, 1300 Pennsylvania Avenue NW., Washington, DC 20460. The SAB mailing address is: EPA Science Advisory Board (1400R), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460. General information about the SAB concerning the SAB meeting announced in this notice may be found on the SAB Web site at
Members of the public who wish to obtain further information regarding this announcement may contact Edward Hanlon, Designated Federal Officer, by telephone: (202) 564–2134 or email at
Pursuant to section 10(d) of the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2, and section (c)(6) of the Government in the Sunshine Act, 5 U.S.C. 552b(c)(6), EPA has determined that the SAB meeting will be closed to the public. The purpose of the SAB meeting is for the committee to discuss recommendations for the SAB regarding the recipients of the Agency's 2014 Scientific and Technological Achievement Awards. These awards are established to honor and recognize EPA employees who have made outstanding contributions in the advancement of science and technology through their research and development activities, as exhibited in publication of their results in peer reviewed journals. I have determined that the SAB meeting will be closed to the public because it is concerned with selecting employees deserving of awards. In making these recommendations, the Agency requires full and frank advice from the SAB. This advice will involve professional judgments on the relative merits of various employees and their respective work. Such personnel matters involve the discussion of information that is of a personal nature and the disclosure of which would be a clearly unwarranted invasion of personal privacy and, therefore, are protected from disclosure by section (c)(6) of the Government in the Sunshine Act, 5 U.S.C. 552b(c)(6). Minutes of the SAB meeting will be kept and certified by the chair.
Environmental Protection Agency (EPA).
Notice.
EPA is announcing its receipt of test data submitted pursuant to a test rule issued by EPA under the Toxic Substances Control Act (TSCA). As required by TSCA, this document identifies each chemical substance and/or mixture for which test data have been received; the uses or intended uses of such chemical substance and/or mixture; and describes the nature of the test data received. Each chemical substance and/or mixture related to this announcement is identified in Unit I. under
Information about the following chemical substances and/or mixtures is provided in Unit IV.: 1-Decene, sulfurized (CAS No. 72162–15–3).
Section 4(d) of TSCA (15 U.S.C. 2603(d)) requires EPA to publish a notice in the
A docket, identified by the docket identification (ID) number EPA–HQ–OPPT–2013–0677 has been established for this
The docket for this
This unit contains the information required by TSCA section 4(d) for the test data received by EPA.
1-Decene, sulfurized (CAS No. 72162–15–3).
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2.
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Environmental protection, Hazardous substances, Reporting and Recordkeeping requirements.
Export-Import Bank of the United States.
Notice.
This Notice is to inform the public, in accordance with Section 3(c)(10) of the Charter of the Export-Import Bank of the United States (“Ex-Im Bank”), that Ex-Im Bank has received an application for final commitment for a long-term loan or financial guarantee in excess of $100 million (as calculated in accordance with Section 3(c)(10) of the Charter). Comments received within the comment period specified below will be presented to the Ex-Im Bank Board of Directors prior to final action on this Transaction. Comments received will be made available to the public.
Comments must be received on or before August 1, 2014 to be assured of consideration before final consideration of the transaction by the Board of Directors of Ex-Im Bank.
Comments may be submitted through Regulations.gov at
To support the export of U.S.-manufactured aircraft to China.
To be used for airline service in China and between China and international destinations.
To the extent that Ex-Im Bank is reasonably aware, some of the item(s) being exported may be used to produce exports or provide services in competition with the exportation of goods or provision of services by a United States industry.
Principal Supplier: The Boeing Company.
Obligor: Air China Limited.
Guarantor(s): N/A.
Description of Items Being Exported:
Boeing 777 aircraft, Boeing 747 aircraft, and Boeing 737 aircraft.
Export-Import Bank of the United States.
Notice.
This Notice is to inform the public, in accordance with Section 3(c)(10) of the Charter of the Export-Import Bank of the United States (“Ex-
Comments must be received on or before August 1, 2014 to be assured of consideration before final consideration of the transaction by the Board of Directors of Ex-Im Bank.
Comments may be submitted through Regulations.gov at
To support the export of U.S.-manufactured aircraft to Australia.
To be used for short-haul passenger air service within Australia and from Australia to regional destinations.
To the extent that Ex-Im Bank is reasonably aware, the item(s) being exported are not expected to produce exports or provide services in competition with the exportation of goods or provision of services by a United States industry.
Boeing 737 aircraft.
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 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 July 21, 2014.
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street NE., Atlanta, Georgia 30309:
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The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 31, 2014.
A. Federal Reserve Bank of St. Louis (Yvonne Sparks, Community Development Officer) P.O. Box 442, St. Louis, Missouri 63166–2034:
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Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35), the Regulatory Secretariat Division (MVCB) will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning certification of independent price determination and parent company and identifying data. A notice was published in the
Submit comments on or before August 6, 2014.
Submit comments identified by Information Collection 9000–0018, Certification of Independent Price Determination and Parent Company and Identifying Data by any of the following methods:
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Mr. Edward Chambers, Procurement Analyst, Federal Acquisition Policy Division, GSA 202–501–3221 or
As a first step in assuring that Government contracts are not awarded to firms violating anti-trust laws, offerors on Government contracts must complete the certificate of independent price determination. The Contracting Officer will reject certificates where the offeror has deleted or modified portions of the certificate and has not furnished with the certificate a signed statement of the circumstances of disclosure of prices. Agencies are required to report to the Attorney General rejected offers where the offeror deleted or modified the certificate or the certificate is suspected of being false.
The information collection is required each time an offeror responds to a solicitation for firm-fixed price contract or fixed-price economic price adjustment contract unless the acquisition is: (1) Made under the simplified acquisition threshold; (2) at the request for technical proposals under two-step sealed bidding procedures; or (3) for utility services for which rates are set by law or regulation. The FAR rule requires a Certificate of Independent Price Determination so that contractors certify that the prices in their offer have been arrived at independently, have not been or will not be knowingly disclosed, and have not been submitted for the purpose of restricting competition. This clause does not apply to commercial items.
A reassessment of FAR 3.103 and FAR 52.203–2 was performed. Based on the comprehensive reassessment performed, this information collection resulted in a slight decrease in the annual number of responses and an increase in the annual time burden from the previous information collection that was published in the
Please cite OMB Control No. 9000–0018, Certification of Independent Price Determination and Parent Company and Identifying Data, in all correspondence.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by September 5, 2014.
Submit electronic comments on the collection of information to:
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE–14526, Silver Spring, MD 20993–0002,
Under the PRA (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The guidance document provides information concerning cooperative manufacturing arrangements applicable to biological products subject to licensure under section 351 of the Public Health Service Act (42 U.S.C. 262). The guidance addresses several types of manufacturing arrangements (i.e., short supply arrangements, divided manufacturing arrangements, shared manufacturing arrangements, and contract manufacturing arrangements) and describes certain reporting and recordkeeping responsibilities, associated with these arrangements, including the following: (1) Notification of all important proposed changes to production and facilities; (2) notification of results of tests and investigations regarding or possibly impacting the product; (3) notification of products manufactured in a contract facility; and (4) standard operating procedures.
Each licensed manufacturer in a divided manufacturing arrangement or shared manufacturing arrangement must notify the appropriate FDA Center regarding proposed changes in the manufacture, testing, or specifications of its product, in accordance with § 601.12 (21 CFR 601.12). In the guidance, we recommend that each licensed manufacturer that proposes such a change should also inform other participating licensed manufacturer(s) of the proposed change.
For contract manufacturing arrangements, we recommend that the contract manufacturer should share with the license manufacturer all important proposed changes to production and facilities (including
In the guidance, we recommend the following for contract manufacturing arrangements:
• The contract manufacturer should fully inform the license manufacturer of the results of all tests and investigations regarding or possibly having an impact on the product; and
• The license manufacturer should obtain assurance from the contractor that any FDA list of inspectional observations will be shared with the license manufacturer to allow evaluation of its impact on the purity, potency, and safety of the license manufacturer's product.
In the guidance, we recommend for contract manufacturing arrangements that a license manufacturer cross reference a contract manufacturing facility's Master Files only in circumstances involving certain proprietary information of the contract manufacturer, such as a list of all products manufactured in a contract facility. In this situation, the license manufacturer should be kept informed of the types or categories of all products manufactured in the contract facility.
In the guidance, we remind the license manufacture that the license manufacturer assumes responsibility for compliance with the applicable product and establishment standards (21 CFR 600.3(t)). Therefore, if the license manufacturer enters into an agreement with a contract manufacturing facility, the license manufacturer must ensure that the facility complies with the applicable standards. An agreement between a license manufacturer and a contract manufacturing facility normally includes procedures to regularly assess the contract manufacturing facility's compliance. These procedures may include, but are not limited to, review of records and manufacturing deviations and defects, and periodic audits.
For shared manufacturing arrangements, each manufacturer must submit a separate biologics license application (BLA) describing the manufacturing facilities and operations applicable to the preparation of that manufacturer's biological substance or product (§ 601.2(a)). In the guidance, we state that we expect the manufacturer that prepares (or is responsible for the preparation of) the product in final form for commercial distribution to assume primary responsibility for providing data demonstrating the safety, purity, and potency of the final product. We also state that we expect the licensed finished product manufacturer to be primarily responsible for any postapproval obligations, such as postmarketing clinical trials, additional product stability studies, complaint handling, recalls, postmarket reporting of the dissemination of advertising and promotional labeling materials as required under § 601.12(f)(4) and adverse experience reporting. We recommend that the final product manufacturer establish a procedure with the other participating manufacturer(s) to obtain information in these areas.
The guidance also refers to previously approved collections of information found in FDA regulations at parts 201, 207, 211, 600, 601, 606, 607, 610, 660, 801, 803, and 807, 809, and 820 (21 CFR parts 201, 207, 211, 600, 601, 606, 607, 610, 660, 801, 803, 807, 809, and 820). The collections of information in §§ 606.121, 606.122, and 610.40 have been approved under OMB control number 0910–0116; § 610.2 has been approved under OMB control number 0910–0206; §§ 600.12(e) and 600.80 have been approved under OMB control number 0910–0308; §§ 601.2(a), 601.12, 610.60 through 610.65, 610.67, 660.2(c), 660.28(a) and (b), 660.35(a), (c) through (g), (i) through (m), 660.45, and 660.55(a) and (b) have been approved under OMB control number 0910–0338; §§ 803.20, 803.50, and 803.53 have been approved under OMB control number 0910–0437; and §§ 600.14 and 606.171 have been approved under OMB control number 0910–0458. The current good manufacturing practice regulations for finished pharmaceuticals (part 211) have been approved under OMB control number 0910–0139; §§ 820.181 and 820.184 have been approved under OMB control number 0910–0073; the establishment registration regulations (parts 207, 607, and 807) have been approved under OMB control numbers 0910–0045, 0910–0052, and 0910–0625; and the labeling regulations (parts 201, 801, and 809) have been approved under OMB control numbers 0910–0537, 0910–0572, and 0910–0485.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for industry entitled “Neglected Tropical Diseases of the Developing World: Developing Drugs for Treatment or Prevention.” The purpose of the guidance is to assist sponsors in the development of drugs for the treatment or prevention of neglected tropical diseases (NTDs). This guidance represents the FDA's current thinking regarding drug development for the treatment or prevention of NTDs, including clinical trial designs and internal review standards to support approval of drugs. This guidance finalizes the draft guidance issued August 24, 2011.
Submit either electronic or written comments on Agency guidances at any time.
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2201, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your
Submit electronic comments on the guidance to
Joseph G. Toerner, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 6244, Silver Spring, MD 20993–0002, 301–796–1300.
FDA is announcing the availability of a guidance for industry entitled “Neglected Tropical Diseases of the Developing World: Developing Drugs for Treatment or Prevention.” The purpose of this guidance is to assist sponsors in the development of drugs for the treatment or prevention of NTDs as defined in section 524(a)(3) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360n(a)(3)).
NTDs are infectious diseases that are generally rare or absent in developed countries, but are often widespread in developing countries. The availability of new drugs that are safe and effective for treatment or prevention of NTDs could provide public health benefit for overall global health.
This guidance addresses general issues in drug development and implementation of clinical trials for NTDs. FDA will review and comment on drug development plans and will review new drug applications or biologics license applications for new drugs for NTDs, regardless of where the clinical development program takes place. Specifically, the guidance provides a general overview of nonclinical development considerations, as well as clinical development considerations and regulatory paradigms. Other activities in the Center for Drug Evaluation and Research that pertain to NTDs are summarized in the guidance. Listings of guidance documents that are most relevant to drug development for NTDs are included in the guidance.
This guidance finalizes the draft guidance issued August 24, 2011. Comments on the draft guidance were considered while finalizing this guidance. Specifically, changes from the draft guidance include descriptions of new regulatory designations (Qualified Infectious Disease Product; Breakthrough Therapy).
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the Agency's current thinking on developing drugs for the treatment or prevention of neglected tropical diseases of the developing world. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
This guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR part 312 and 21 CFR part 314 have been approved under OMB control numbers 0910–0014 and 0910–0001.
Interested persons may submit either electronic comments regarding this document to
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Walter Ellenberg at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice of a Class Deviation from Competition Requirements for the HIV/AIDS Bureau's (HAB) Ryan White HIV/AIDS Program, AIDS Education and Training Centers (AETC), Graduate Medical Education (GME) Program (H4A).
HRSA will be issuing non-competitive awards under the Ryan White HIV/AIDS Program, AETC/GME Program. Approximately $450,000 will be made available in the form of a grant to current grantees (listed in chart below) during the budget period of July 1, 2014, through June 30, 2015. This will: (1) Continue the current cohort and provide support for one additional cohort of graduate medical residents; (2) continue to provide workforce development that is integral to the national interest through meeting National HIV/AIDS Strategy goals, and that enhances the implementation of the Affordable Care Act; and (3) provide a more robust program evaluation that will yield sufficient data; and aid HRSA/HAB in future decisions regarding the replication and the viability of a subsequent GME competition. The scope of work does not change.
Intended recipients of the awards are the three incumbent grantees of record (listed in chart below). The amount of the non-competitive awards is $150,000 per grantee.
Section 2692 of the Public Health Service Act, 42, U.S.C. 300ff–111.
Diana Travieso Palow, Branch Chief, HIV Education Branch, Division of Training and Capacity Development, HAB/HRSA 5600 Fishers Lane, Rockville, MD 20857, by email at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The 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 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.
Coast Guard, DHS.
Committee Management; Notice of Federal Advisory Committee Meeting.
The Great Lakes Pilotage Advisory Committee will meet on July 23–24, 2014, in Washington, DC to discuss matters relating to Great Lakes pilotage, including review of proposed Great Lakes pilotage regulations and policies. These meetings will be open to the public.
The Great Lakes Pilotage Advisory Committee will meet on Wednesday July 23rd, 2014, from 10:00 a.m. to 5:00 p.m., and on Thursday July 24th from 9:00 a.m. to 5 p.m. Please note that the meeting may close early if the committee completes its business. Pre-registration, all submitted written materials, comments and requests to make oral presentations at the meeting should reach Ms. Michelle Birchfield, Great Lakes Pilotage Advisory Committee Alternate Designated Federal Officer on or before July 18, 2014. Any written material submitted by the public will be distributed to the committee and become part of the public record.
The meeting will be held at U.S. Coast Guard Headquarters located at 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593 in conference room 4R14–18. All visitors to Coast Guard Headquarters will have to pre-register to be admitted to the building. Please provide your full name, date of birth and Social Security number by close of business on July 18, 2014, to the contact person listed in
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact the person listed in
To facilitate public participation, we are inviting public comment on the issues to be considered by the committee as listed in the “Agenda”
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To avoid duplication, please use only one of these four methods.
Public comments will be heard during the meeting on July 23 and July 24, 2014. Speakers are requested to limit their comments to 5 minutes. Please note that the public comment period may end before the period allotted, following the last call for comments. Contact the individual listed in the
Commandant (CG–WWM–2), ATTN: Ms. Michelle Birchfield, Great Lakes Pilotage Advisory Committee Alternate Designated Federal Officer, U.S. Coast Guard Stop 7509, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593–7509; telephone 202–372–1537, fax 202–372–8387, or email at
Notice of this meeting is given under the
Further information about Great Lakes Pilotage Advisory Committee is available by going to the Web site:
The Great Lakes Pilotage Advisory Committee will meet to review, discuss, deliberate and formulate recommendations as appropriate on topics contained in the below agenda:
• Ice Operations: Closing of 2013 and Opening of 2014 Seasons
○ Debrief
○ US/Canada coordination
○ Lessons learned
○ Great Lakes Pilotage Management System (GLPMS, or Klein) Migration
• Review General Regulations
○ Update on effort to align with Federal Pilot requirements and credentialing
○ Required Reporting to USCG
Financial and operational reporting
Accident reporting
• Discussion of Pilotage Governance
○ Working Rules
○ Geographic areas of responsibility
○ Observance of mandatory change points for safety
• Pilotage requirements for yachts
• Commencement of revenue audits
• Proposed changes to the ratemaking methodology
• Billing for pilot boat operations
• Funding capital improvements
• Improving recruitment and retention
• Continuing raining, education and professional development
Public comments or questions will be taken throughout the meeting as the committee discusses the issues. There will also be a public comment period at the end of each day.
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security 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: Bonded Warehouse Regulations. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before August 6, 2014 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229–1177, at 202–325–0265.
This proposed information collection was previously published in the
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security 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: Declaration of Persons Who Performed Repairs or Alterations. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before August 6, 2014 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229–1177, at 202–325–0265.
This proposed information collection was previously published in the
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security 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: Entry Summary. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before August 6, 2014 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229–1177, at 202–325–0265.
This proposed information collection was previously published in the
CBP Form 7501A, Document/Payment Transmittal, is used to reconcile a supplemental payment after an initial Automated Clearinghouse payment with the associated entry so the respondent's account is properly credited.
Collection of the data on these forms is authorized by 19 U.S.C. 1484 and provided for by 19 CFR 142.11 and CFR 141.61. CBP Form 7501 and accompanying instructions can be found at
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security 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: Application to Pay Off or Discharge an Alien Crewman. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before August 6, 2014 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229–1177, at 202–325–0265.
This proposed information collection was previously published in the
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of final determination.
This document provides notice that U.S. Customs and Border Protection (“CBP”) has issued a final determination concerning the country of origin of certain toner cartridge products known as All-In-One Toner Cartridges. Based upon the facts presented, CBP has concluded in the final determination that Japan is the country of origin of the All-In-One Toner Cartridges for purposes of U.S. Government procurement.
The final determination was issued on June 24th, 2014. A copy of the final determination is attached. Any party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial review of this final determination within August 6, 2014.
Grace A. Kim, Valuation and Special Programs Branch, Regulations and Rulings, Office of International Trade (202) 325–7941.
Notice is hereby given that on June 24, 2014 pursuant to subpart B of Part 177, U.S. Customs and Border Protection Regulations (19 CFR part 177, subpart B), CBP issued a final determination concerning the country of origin of certain toner cartridge products known as All-In-One Toner Cartridges, which may be offered to the U.S. Government under an undesignated government procurement contract. This final determination, HQ H251592, was issued under procedures set forth at 19 CFR Part 177, subpart B, which implements Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511–18). In the final determination, CBP concluded that, based upon the facts presented, the assembly processes performed in Japan, substantially transform non-TAA country All-In-One Toner Cartridges. Therefore, the country of origin of the All-In-One Toner Cartridges is Japan for purposes of U.S. Government procurement.
Section 177.29, CBP Regulations (19 CFR 177.29), provides that a notice of final determination shall be published in the
This is in response to your letter, dated February 21, 2014, requesting a final determination on behalf of Ricoh Company Ltd. (“Ricoh”), pursuant to subpart B of part 177 of the U.S. Customs and Border Protection (“CBP”) Regulations (19 C.F.R. Part 177). Under these regulations, which implement Title III of the Trade Agreements Act of 1979 (“TAA”), as amended (19 U.S.C. § 2511 et seq.), CBP issues country of origin advisory rulings and final determinations as to whether an article is or would be a product of a designated country or instrumentality for the purposes of granting waivers of certain “Buy American” restrictions in U.S. law or practice for products offered for sale to the U.S. Government. This final determination concerns the country of origin of Ricoh's all-in-one (“AIO”) toner cartridge (“AIO cartridge”). We note that as a foreign manufacturer, Ricoh is a party-at-interest within the meaning of 19 C.F.R. § 177.22(d)(1) and is entitled to request this final determination.
Ricoh designed and developed the AIO cartridge in Japan, which is used with Ricoh's Aficio multifunctional products (“MFP”) as well as printers. The AIO cartridge can be distinguished from conventional toner cartridge in that it does not only contain the toner powder, but also a cleaning unit and a development unit. It serves multiple functions by storing and transporting the toner, then transferring and affixing letters and images onto paper. The AIO cartridge also cleans the surface of the Organic Photo Conductor (“OPC drum”), which converts the light signal to the electric charge, enabling the toner particles to be affixed onto the paper. In contrast, in a conventional cartridge, the cleaning of the OPC drum is done by the MFP or printers.
As stated above, the AIO cartridge has three main components: toner powder, development unit, and cleaning unit. The toner powder is the ink that forms the letters and images on paper and is claimed to be the most critical element of the AIO cartridge. Ricoh developed and produces the toner powder in Japan and the formula for the toner is proprietary and patented. The production process involves pre-mixing the chemical ingredients using a highly sophisticated chemical mixer; mixing and kneading the toner powder by adding air pressure, followed by a cooling process; pulverizing the toner; equalizing the toner particles into the same size; and final mixing and packaging.
The development unit has a container called a “hopper,” that holds the toner powder. The development unit is assembled in China and imported to Japan, where the hopper will be filled with toner powder. After the hopper is filled with toner powder, the hopper is sealed and cleaned to avoid any contamination of the MFPs and printers.
The cleaning unit is assembled in Japan and contains the OPC drum, cleaning blade, charge rollers and other miscellaneous parts. With the exception of the OPC drum, all components are made in Japan. The OPC drum is produced in Thailand with parts from various countries. It is stated that the assembly of the cleaning unit requires experienced technicians, as the assembly is of a delicate nature. The assembly process includes assembling the cleaning blade, applying black toner powder on the cleaning blade for a smooth contact with the OPC drum, setting the waste toner case, assembling the cleaning blade to the spent toner case, and assembling the OPC drum and charger roller into the cleaning unit.
The next step in producing the AIO cartridge involves making a frame assembly in Japan, which is the outer structure of the AIO cartridge. The arm shutter is assembled to both the right and left sides of the frame; a spring is attached to each arm shutter; the right frame is assembled by attaching the arm shutter and electrode sheets, which connect the cleaning unit and development units to the toner hopper; a memory chip and radio-frequency identification tag (“RFID chip”) is installed to the side of the right frames. The same processes are repeated for the left frame, except that the left frame does not include a memory chip or RFID chip. After the outer structure is assembled, the toner hopper, developer unit and cleaning unit are assembled together in Japan. The assembly process involves mounting the right and left frames onto the assembled development unit and cleaning unit combination, assembling gears connecting the frame to the development and cleaning units, and installing the OPC drum shutter. The AIO cartridge is inspected and data is input onto the RFID chip, which allows the MFP or printer to recognize the AIO cartridge and informs the user when the AIO cartridge should be replaced.
Pursuant to Subpart B of Part 177, 19 C.F.R § 177.21 et seq., which implements Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. § 2511
In order to determine whether a substantial transformation occurs when components of various origins are assembled into completed products, CBP considers the totality of the circumstances and makes such determinations on a case-by-case basis. The country of origin of the item's components, extent of the processing that occurs within a country, and whether such processing renders a product with a new name, character, and use are primary considerations in such cases. Additionally, factors such as the resources expended on product design and development, the extent and nature of post-assembly inspection and testing procedures, and worker skill required during the actual manufacturing process will be considered when determining whether a substantial transformation has occurred. No one factor is determinative.
In determining whether the combining of parts or materials constitutes a substantial transformation, the determinative issue is the extent of the operations performed and whether the parts lose their identity and
CBP has held in a number of cases involving similar merchandise that complex and meaningful operations involving a large number of components result in a substantial transformation. Ricoh states that the toner for the cartridge is the most valuable component citing Headquarters Ruling Letter (HQ) W563548 (Nov. 9, 2009). In that case, CBP considered the country of origin of toner cartridges and image drums which were remanufactured in the U.S. The toner cartridges comprised 52 parts plus toner and 20 new parts were used to remanufacture the toner cartridges: 14 from the U.S., 1 from the U.K., and 5 from China. The remaining 32 parts were salvaged from used cartridges, which were cleaned for reassembly. The components with mechanical function such as the shutters, mixing gear, mixing bar, and spiral attachments were simply cleaned and not replaced. The cartridges were filled with new toner of Japanese origin and tested. CBP found that the cartridges were not substantially transformed in the U.S. because the remanufacturing processes were rather simple. Rather, the toner was the only significant component replaced during the remanufacturing operation. CBP concluded that since the toner imparted the essential character of the remanufactured toner cartridge, the country of origin was Japan. HQ W563548 also considered the remanufacture of image drums in the U.S. The image drums were comprised of 110 parts and 56 new parts were used from various countries: 12 in the U.S., 1 in Canada, 5 in Japan, and 38 in Thailand. Several of the newly manufactured parts were significant to the functionality of the image drum, such as the organic photoreceptor drum (claimed to be the most valuable component of the image drum), the developing roller, the charge roller, and the cleaning blade, which were all manufactured in Japan including new lubricating toner powder. Unlike the toner cartridge in W563548, the remanufacturing of the image drums required replacement of most of the components that contributed to the functionality of the image drum. Based on these facts, CBP concluded that the image drum was substantially transformed in the U.S.
We find that substantial manufacturing operations are performed in Japan in producing the AIO cartridge. While the OPC drum is manufactured in Thailand, the other parts of the cleaning unit originate in Japan. As a result of the assembly of the cleaning unit in Japan, the OPC drum becomes an integral part of the cleaning unit such that it may be considered a product of Japan. This is analogous to the remanufactured image drum assembly process described in HQ W563548. The development unit is manufactured in China. The toner powder is manufactured in Japan and as found in W563548, it is the most critical element of the AIO cartridge. These three components (two of Japanese origin and one from China) are brought together by the frame assembly also performed in Japan. Therefore, we find that the country of origin of the Ricoh AIO cartridge is Japan.
Based on the facts of this case, we find that the processing in Japan substantially transforms the non-Japanese components. Therefore, the country of origin of the AIO cartridge is Japan for purposes of U.S. Government procurement.
Notice of this final determination will be given in the
Sincerely,
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, and the U.S. Department of the Interior, Bureau of Land Management (BLM), the John Day—Snake Resource Advisory Council (RAC) will meet as indicated below.
The John Day—Snake RAC will hold a public meeting Thursday, July 17, and Friday, July 18, 2014. The meeting will run from 12 p.m. to 5:00 p.m. on July 17th, and from 8 a.m. to 12:45 p.m. on July 18th. An agenda will be posted at
The meeting will be held at the USFS Wallowa Whitman National Forest, La Grande Ranger District Office at 3502 Hwy. 30 in La Grande, Oregon.
Lisa Clark, Public Affairs Specialist, BLM Prineville District Office, 3050 NE. 3rd Street, Prineville, Oregon 97754, (541) 416–6864, or email
The John Day-Snake RAC consists of 15 members chartered and appointed by the Secretary of the Interior. Their diverse perspectives are represented in commodity, conservation, and general interests. They provide advice to BLM and Forest Service resource managers regarding management plans and proposed resource actions on public land in central and eastern Oregon. Agenda items for the July 2014 meeting include: presentations on the release of the approved John Day Basin Resource Management Plan and the NEPA 2.0 Planning Strategy, a field tour of the Blue Mountains Cohesive Strategy Pilot Project, committee and member updates and any other matters that may reasonably come before the John Day-Snake RAC. This meeting is open to the public in its entirety; however, transportation during the field tour portion of the meeting will not be provided to members of the public. Information to be distributed to the John Day-Snake RAC is requested prior to the start of each meeting. A public comment period will be available on July 18, 2014, at 10 a.m. Unless otherwise approved by the John Day-Snake RAC Chair, the public comment period will last no longer than 30 minutes. Each speaker may address the John Day-Snake RAC for a maximum of 5 minutes. Meeting times and the duration scheduled for public comment periods may be extended or altered when the authorized representative considers it necessary to accommodate business and all who seek to be heard regarding matters before the John Day-Snake RAC.
Before including your address, phone number, email address, or other personal identifying information in your comments, please be aware that your
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has decided to adopt the report prepared by the Office of Unfair Import Investigations (“OUII”) as the Commission's advisory opinion in the above-captioned proceeding.
Michael Haldenstein, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2737. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on January 10, 2012, based on a complaint filed by Standard Innovation Corporation of Ottawa, ON, Canada and Standard Innovation (US) Corp. of Wilmington, Delaware (collectively, “Standard Innovation”). 77
On June 17, 2013, the Commission issued its final determination finding that Standard Innovation had proven a violation of section 337 based on the infringement of the asserted claims of the '605 patent. Based on evidence of a pattern of violation and difficulty ascertaining the source of the infringing products, the Commission issued a general exclusion order against certain kinesiotherapy devices and components thereof that infringe the asserted claims of the '605 patent. The Commission also issued cease and desist orders against certain respondents, including Lelo Inc.
On September 30, 2013, Lelo filed a request with the Commission asking for institution of an advisory opinion proceeding to declare that its new kinesiotherapy devices are not covered by the general exclusion order or the cease and desist order issued against Lelo Inc. Standard Innovation filed a response on November 12, 2013, opposing Lelo's request.
On February 7, 2014, the Commission determined that Lelo's request complied with the requirements for institution of an advisory opinion proceeding under Commission Rule 210.79. The Commission therefore determined to institute an advisory opinion proceeding and assigned the proceeding to OUII. 79
On May 5, 2014, OUII issued a report concluding that the new kinesiotherapy devices developed by Lelo are not covered by the general exclusion order and cease and desist order against Lelo, Inc. issued in the underlying investigation. In so doing, OUII concluded,
After reviewing the report and the submissions of Standard Innovation and Lelo, the Commission has decided to adopt the report issued by OUII as its advisory opinion in this proceeding.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at EDIS,
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at USITC.
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Macronix International Co., Ltd. and Macronix America, Inc. on June 27, 2014. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain devices containing non-volatile memory and products containing the same. The complaint names as respondents Spansion Inc. of Sunnyvale, CA; Spansion LLC of Sunnyvale, CA; Spansion (Thailand) Ltd. of Thailand; Aerohive Networks, Inc. of Sunnvvale, CA; Allied Telesis, Inc. of Bothell, WA; Ciena Corporation of Hanover, MD; Delphi Automotive PLC of United Kingdom; Delphi Automotive Systems, LLC of Troy, MI; Polycom, Inc. of San Jose, CA; Ruckus Wireless, Inc. of Sunnyvale, CA; ShoreTel Inc. of Sunnvvale, CA; Tellabs, Inc. of Naperville, IL; Tellabs North America, Inc. of Naperville, IL and TiVo Inc. of San Jose, CA. The complainant requests that the Commission issue a general exclusion order and cease and desist orders.
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No.3020”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Rock Burst Control Plan, (Pertains to Underground Metal/Nonmetal Mines),” 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 August 6, 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,
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 Rock Burst Control Plan, (Pertains to Underground Metal/Nonmetal Mines) information collection requirements codified in regulations 30 CFR 57.3461, which requires an underground metal or nonmetal mine operator to develop a rock burst plan within ninety (90) days after a rock burst has been experienced. Stress data are normally recorded on gauges and plotted on maps. This information is used for work assignments to ensure miner safety and to schedule correction work. Federal Mine Safety and Health Act of 1977 sections 101(a) and 103(h) authorize this information collection.
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 July 31, 2014. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
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.
The Legal Services Corporation's Finance Committee will meet telephonically on July 16, 2014. The meeting will commence at 3:00 p.m., EDT, and will continue until the conclusion of the Committee's agenda.
John N. Erlenborn Conference Room, Legal Services Corporation Headquarters, 3333 K Street NW., Washington DC 20007.
Members of the public who are unable to attend in person but wish to listen to the public proceedings may do so by following the telephone call-in directions provided below.
• Call toll-free number: 1–866–451–4981;
• When prompted, enter the following numeric pass code: 5907707348;
• When connected to the call, please immediately “MUTE” your telephone.
Members of the public are asked to keep their telephones muted to eliminate background noises. To avoid disrupting the meeting, please refrain from placing the call on hold if doing so will trigger recorded music or other sound. From time to time, the Chair may solicit comments from the public.
Open.
Katherine Ward, Executive Assistant to the Vice President & General Counsel, at (202) 295–1500. Questions may be sent
LSC complies with the Americans with Disabilities Act and Section 504 of the 1973 Rehabilitation Act. Upon request, meeting notices and materials will be made available in alternative formats to accommodate individuals with disabilities. Individuals needing other accommodations due to disability in order to attend the meeting in person or telephonically should contact Katherine Ward, at (202) 295–1500 or
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before August 6, 2014. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
You may request a copy of any records schedule identified in this notice by contacting Records Management Services (ACNR) using one of the following means:
Requesters must cite the control number, which appears in parentheses after the name of the agency which submitted the schedule, and must provide a mailing address. Those who desire appraisal reports should so indicate in their request.
Margaret Hawkins, Director, Records Management Services (ACNR), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740–6001. Telephone: 301–837–1799. Email:
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
The schedules listed in this notice are media neutral unless specified otherwise. An item in a schedule is media neutral when the disposition instructions may be applied to records regardless of the medium in which the records are created and maintained. Items included in schedules submitted to NARA on or after December 17, 2007, are media neutral unless the item is limited to a specific medium. (See 36 CFR 1225.12(e).)
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of Defense, Office of Inspector General (DAA–0509–2014–0005, 1 item, 1 temporary item). Records relating to the application, implementation, and certification of social media platforms.
2. Department of Health and Human Services, Centers for Medicare & Medicaid Services (DAA–0440–2013–0008, 2 items, 2 temporary items). Records related to the administration of Medicare programs.
3. Department of Justice, United States Marshals Service (DAA–0527–2013–0019, 2 items, 2 temporary items). Agency performance reports and related background files.
4. Department of the Navy, United States Marine Corps (DAA–0127–2013–0025, 1 item, 1 temporary item). Master files of an electronic information system used to manage intelligence data.
5. Department of the Treasury, United States Mint (DAA–0104–2013–0005, 1 item, 1 temporary item). Administrative service request form used to schedule multimedia content for an internal communication network.
6. Library of Congress, Agency-wide (DAA–0297–2014–0006, 3 items, 3
7. National Archives and Records Administration, Government-wide (DAA–GRS–2013–0002, 5 items, 5 temporary items). General Records Schedule for tracking and control records, records management program records, copies of vital records, and forms management records.
8. Nuclear Regulatory Commission, Office of the Secretary of the Commission (N1–431–08–22, 4 items, 3 temporary items). Records used to facilitate hearings related to the regulation of nuclear facilities. Proposed for permanent retention are written transcripts of the hearings.
9. Nuclear Regulatory Commission, Office of the Inspector General (N1–431–10–2, 27 items, 18 temporary items). Records include working papers, administrative records, and other records related to audits and investigations. Proposed for permanent retention are audit reports, allegation files, investigation case files, correspondence files, semiannual reports, regulatory commentary, and legal interpretations.
10. Securities and Exchange Commission, Agency-wide (DAA–0266–2013–0002, 9 items, 9 temporary items). Records relating to the creation, maintenance, and content of the agency Web site.
All meetings are held at 2:00 p.m. Wednesday, July 2; Thursday, July 3; Tuesday, July 8; Wednesday, July 9; Thursday, July 10; Tuesday, July 15; Wednesday, July 16; Thursday, July 17; Tuesday, July 22; Wednesday, July 23; Thursday, July 24; Tuesday, July 29; Wednesday, July 30; Thursday, July 31.
Board Agenda Room, No. 11820, 1099 14th St. NW., Washington, DC 20570
Closed.
Pursuant to § 102.139(a) of the Board's Rules and Regulations, the Board or a panel thereof will consider “the issuance of a subpoena, the Board's participation in a civil action or proceeding or an arbitration, or the initiation, conduct, or disposition . . . of particular representation or unfair labor practice proceedings under section 8, 9, or 10 of the [National Labor Relations] Act, or any court proceedings collateral or ancillary thereto.” See also 5 U.S.C. § 552b(c)(10).
Henry Breiteneicher, Associate Executive Secretary, (202) 273–2917
National Science Foundation.
Notice of Permit Applications Received under the Antarctic Conservation Act of 1978, Public Law 95–541.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at Title 45 Part 671 of the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by August 6, 2014. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Division of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Li Ling Hamady, ACA Permit Officer, at the above address or
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95–541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas as requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
1.
ASPA entry, Take, Import to the USA. The applicant plans to take 70 (max) 500 gram soil samples, 5 (5 gram) plant clippings, 5 (15 square cm) moss samples, and 5 (15 square cm) lichen samples per ASPA. This project will identify the soil community at many sites along the Antarctic Peninsula to discover how the community changes with environmental conditions from north to south, and how the soil community at each site differs under different types of plants.
Lagotellerie Island (ASPA 115), Admiralty Bay (ASPA 128), Byers Peninsula (ASPA 126), Biscoe Point (ASPA 139), Green Island (ASPA 108).
November 1, 2014 to April 30, 2016.
Weeks of July 7, 14, 21, 28, August 4, 11, 2014.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of July 7, 2014.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of July 21, 2014.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of August 4, 2014.
There are no meetings scheduled for the week of August 11, 2014.
The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call Rochelle Bavol, 301–415–1651.
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
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing requesting an addition to Priority Mail Contract 82 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2014–29 and CP2014–54 to consider the Request pertaining to the proposed Priority Mail Contract 82 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than July 8, 2014. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Pamela A. Thompson to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2014–29 and CP2014–54 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Pamela A. Thompson is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than July 8, 2014.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Service
Notice.
The Postal Service hereby provides notice that it has filed a request with the Postal Regulatory Commission to add “Gift Cards” to the competitive product list as a price category under the “Greeting Cards and Stationery” product.
John F. Rosato, 202–268–8597.
On June 9, 2014, the United States Postal Service® filed with the Postal Regulatory Commission a request to add a “Gift Cards” price category to the Greeting Cards and Stationary product listed in the Mail Classification Schedule's Competitive Product List. As part of this filing the Postal Service is also requesting that the name of the Greeting Cards and Stationary product be changed to “Greeting Cards, Gift Cards, and Stationary.” Documents pertinent to this request are available at
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501 et seq.), the Securities and Exchange Commission (“Commission”) has submitted to the Office of Management and Budget (“OMB”) a request for approval of extension of the previously approved collection of information provided for in Rule 17Ad–3(b) (17 CFR 240.17Ad–3(b)), under the Securities Exchange Act of 1934 (15 U.S.C. 78a
Rule 17Ad–3(b) requires registered transfer agents to send a copy of the written notice required under Rule 17Ad–2(c), (d), and (h) to the chief executive officer of each issuer for which the transfer agent acts when it has failed to turnaround at least 75% of all routine items in accordance with the requirements of Rule 17Ad–2(a), or to process at least 75% of all items in accordance with the requirements of Rule 17Ad–2(b), for two consecutive months. The issuer may use the information contained in the notices to: (1) Provide an early warning to the issuer of the transfer agent's non-compliance with the Commission's minimum performance standards regarding registered transfer agents; and (2) assure that the issuer is aware of problems and poor performance with respect to the transfer agents that are servicing the issuer's securities. If the issuer does not receive notice of a registered transfer agent's failure to comply with the Commission's minimum performance standards then the issuer will be unable to take remedial action to correct the problem or to find another registered transfer agent. Pursuant to Rule 17Ad–3(b), a transfer agent that has already filed a Notice of Non-Compliance with the Commission pursuant to Rule 17Ad–2 will only be required to send a copy of that notice to issuers for which it acts when that transfer agent fails to turnaround 75% of all routine items or to process 75% of all items.
The Commission estimates that only two transfer agents will meet the requirements of Rule 17Ad–3(b). If a transfer agent fails to meet those requirements under 17Ad–3(b), it would simply send a copy of the notice that had already been produced for the Commission. The Commission estimates the requirement will take each respondent approximately one hour to complete, for a total annual estimate burden of two hours at an internal labor costs cost of approximately $60.00 an hour. There are no external labor costs associated with sending the notice to issuers.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following Web site:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 17Ab2–1 and Form CA–1 require clearing agencies to register with the Commission and to meet certain requirements with regard to, among other things, the clearing agency's organization, capacities, and rules. The information is collected from the clearing agency upon the initial application for registration on Form CA–1. Thereafter, information is collected by amendment to the initial Form CA–1 when material changes in circumstances necessitate modification of the information previously provided to the Commission.
The Commission uses the information disclosed on Form CA–1 to (i) determine whether an applicant meets the standards for registration set forth in Section 17A of the Exchange Act, (ii) enforce compliance with the Exchange Act's registration requirement, and (iii) provide information about specific registered clearing agencies for compliance and investigatory purposes. Without Rule 17Ab2–1, the Commission could not perform these duties as statutorily required.
The Commission staff estimates that each initial Form CA–1 requires approximately 130 hours to complete
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following Web site:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Section 17A(c)(4)(B) of the Securities Exchange Act of 1934 authorizes transfer agents registered with an appropriate regulatory agency (“ARA”) to withdraw from registration by filing with the ARA a written notice of withdrawal and by agreeing to such terms and conditions as the ARA deems necessary or appropriate in the public interest, for the protection of investors, or in the furtherance of the purposes of Section 17A.
In order to implement Section 17A(c)(4)(B) of the Exchange Act, the Commission promulgated Rule 17Ac3–1(a) and accompanying Form TA–W on September 1, 1977. Rule 17Ac3–1(a) provides that notice of withdrawal of registration as a transfer agent with the Commission shall be filed on Form TA–W. Form TA–W requires the withdrawing transfer agent to provide the Commission with certain information, including: (1) The locations where transfer agent activities are or were performed; (2) the reasons for ceasing the performance of such activities; (3) disclosure of unsatisfied judgments or liens; and (4) information regarding successor transfer agents.
The Commission uses the information disclosed on Form TA–W to determine whether the registered transfer agent applying for withdrawal from registration as a transfer agent should be allowed to deregister and, if so, whether the Commission should attach to the granting of the application any terms or conditions necessary or appropriate in the public interest, for the protection of investors, or in furtherance of the purposes of Section 17A of the Exchange Act. Without Rule 17Ac3–1(a) and Form TA–W, transfer agents registered with the Commission would not have a means to voluntarily deregister it is necessary or appropriate to do so.
On average, respondents have filed approximately 22 TA–Ws with the Commission annually from 2009 to 2013. A Form TA–W filing occurs only once, when a transfer agent is seeking deregistration. Approximately 80 percent of Form TA–Ws are completed by the transfer agent or its employees and approximately 20 percent of Form TA-Ws are completed by an outside filing agent that is hired by the registrant to prepare the form and file it electronically. In view of the readily-available information requested by Form TA–W, its short and simple presentation, and the Commission's experience with the filers, we estimate that approximately 30 minutes is required to complete and file Form TA–W. For transfer agents that complete Form TA–W themselves, we estimate the internal labor cost of compliance per filing is $25 (0.5 hours × $50 average hourly rate for clerical staff time). We estimate that outside filing agents charge $100 to complete and file at TA–W on behalf of a registrant, reflecting an external labor cost to respondents. The total annual time burden to the transfer agent industry is approximately 11 hours (22 filings × 0.5 hours). The total annual external labor cost to respondents is $400 (22 annual forms × $100 × 20%).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following Web site:
Securities and Exchange Commission (“Commission”).
Notice of application for an exemptive order under section 202(a)(11)(H) of the Investment Advisers Act of 1940 (“Advisers Act”).
Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549. Applicant, Gruss & Co. Inc., c/o Martin E. Lybecker, Perkins Coie LLP, Suite 600, 700 Thirteenth Street NW., Washington, DC 20005.
Vanessa M. Meeks, Senior Counsel, at (202) 551–6806 or Melissa R. Harke, Branch Chief, at (202) 551–6722 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained for a fee at the SEC's Public Reference Branch, 100 F Street NE., Washington, DC 20549–0102 (telephone (202) 551–5850).
1. Applicant is a multi-generational single-family office that provides services to the family and descendants of Joseph S. Gruss. Applicant is wholly-owned by Family Clients and is exclusively controlled (directly or indirectly) by one or more Family Members and/or Family Entities in compliance with rule 202(a)(11)(G)-1 (“Family Office Rule”). For purposes of the application, the term “Gruss Family” means the lineal descendants of Joseph S. Gruss, their spouses, and all of the persons and entities that qualify as Family Clients as defined in paragraph (d)(4) of the Family Office Rule. Capitalized terms have the same meaning as defined in the Family Office Rule.
2. Applicant provides both advisory and non-advisory services (collectively, the “Services”). Any Service provided by the Applicant that relates to investment advice about securities or may otherwise be construed as advisory in nature is considered an “Advisory Service.”
3. Applicant represents that: (i) Other than the exception discussed in representation 4 below, each of the persons served by the Applicant is a Family Client,
4. Applicant provides Services to two sisters of a spouse of a lineal descendant of Joseph S. Gruss and each sister's respective spouse and children (collectively, the “Additional Family Clients”).
5. The Additional Family Clients do not have an ownership interest in the Applicant. Applicant represents that the assets beneficially owned by Family Members and/or Family Entities (excluding the Additional Family Clients' Family Entities) make up at least 75 percent of the total assets for which the Applicant provides Advisory Services.
6. Applicant represents that each of the Additional Family Clients has important familial ties to and is an integral part of the Gruss Family. Applicant maintains that including the Additional Family Clients in the “family” simply recognizes and memorializes the familial ties and intra-familial relationships that already exist, and have existed for at least 14 years while the assets of the Additional Family Clients were managed by the Gruss Family.
1. Section 202(a)(11) of the Advisers Act defines the term “investment adviser” to mean “any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as a part of a regular business, issues or promulgates analyses or reports concerning securities . . . . ”
2. Applicant falls within the definition of an investment adviser under section 202(a)(11). The Family Office Rule provides an exclusion from the definition of investment adviser for which the Applicant would be eligible but for the provision of Services to the Additional Family Clients. Section 203(a) of the Advisers Act requires investment advisers to register with the Commission. Because the Applicant has regulatory assets under management of more than $100 million, it is not prohibited from registering with the Commission under section 203A(a) of the Advisers Act. Therefore, absent relief, Applicant would be required to register under section 203(a) of the Advisers Act.
3. Applicant submits that its relationship with the Additional Family Clients does not change the nature of the office into that of a commercial advisory firm. In support of this argument, Applicant notes that if the sisters were sisters of a lineal descendent of Joseph S. Gruss, rather than the sisters of a spouse of a lineal descendent, there would be no question that each of the persons presently being served by the office would be a Family Member. Applicant states that in requesting the order, the office is not attempting to expand its operations or engage in any level of commercial activity to which the Advisers Act is designed to apply. Indeed, although the Additional Family Clients do not fall within the definition of Family Member, they are considered to be, and treated as, members of the Gruss Family, and the number of natural persons who are not Family Members as a percentage of the total natural persons to whom the office would provide Advisory Services if relief were granted would be only
4. Applicant also submits that there is no public interest in requiring the Applicant to be registered under the Advisers Act. Applicant states that the office is a private organization that was formed to be the “family office” for the Gruss Family, and that the office does not have any public clients. Applicant maintains that the office's Advisory Services are tailored exclusively to the needs of the Gruss Family and the Additional Family Clients. Applicant argues that the presence of the Additional Family Clients, who have been receiving Advisory Services from the office for 14 years, does not create any public interest that would require the office to be registered under the Advisers Act that is different in any manner than the considerations that apply to a “family office” that complies in all respects with the Family Office Rule.
5. Applicant argues that, although the Family Office Rule largely codified the exemptive orders that the Commission had previously issued before the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Commission recognized in proposing the rule that the exact representations, conditions, or terms contained in every exemptive order could not be captured in a rule of general applicability. The Commission noted that family offices would remain free to seek a Commission exemptive order to advise an individual or entity that did not meet the proposed family client definition, and that certain situations may raise unique conflicts and issues that are more appropriately addressed through an exemptive order process where the Commission can consider the specific facts and circumstances, than through a rule of general applicability. Applicant maintains that its unusual circumstances—providing Services to Family Clients and to the Additional Family Clients for the past 14 years—have not changed the nature of the office's operations into that of a commercial advisory business, and that an exemptive order is appropriate based on the Applicant's specific facts and circumstances.
6. For the foregoing reasons, Applicant requests an order declaring it to be a person not within the intent of section 202(a)(11) of the Advisers Act. Applicant submits that the order is necessary and appropriate, in the public interest, consistent with the protection of investors, and consistent with the purposes fairly intended by the policy and provisions of the Advisers Act.
1. The Applicant will offer and provide Advisory Services only to Family Clients and to the Additional Family Clients, who will be deemed to be, and treated as if each were, a Family Client; provided, however, that the Additional Family Clients will be deemed to be, and treated as if they were, Family Members for purposes of paragraph (b)(1) and for purposes of paragraph (d)(4)(vi) of the Family Office Rule.
2. The Applicant will at all times be wholly-owned by Family Clients and exclusively controlled (directly or indirectly) by one or more Family Members and/or Family Entities (excluding the Additional Family Clients' Family Entities) as defined in paragraph (d)(5) of the Family Office Rule.
3. At all times the assets beneficially owned by Family Members and/or Family Entities (excluding the Additional Family Clients' Family Entities) will account for at least 75 percent of the assets for which Applicant provides Advisory Services.
4. Applicant will comply with all the terms for exclusion from the definition of investment adviser under the Advisers Act set forth in the Family Office Rule except for the limited exception requested by this application.
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of application for an exemptive order under section 202(a)(11)(H) of the Investment Advisers Act of 1940 (“Advisers Act”).
Filing Dates: The application was filed on March 27, 2012, and amended on March 4, 2014, and April 22, 2014.
Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549. Applicant, Duncan Family Office, c/o Martin E. Lybecker, Perkins Coie LLP, Suite 600, 700 Thirteenth Street NW., Washington, DC 20005.
Vanessa M. Meeks, Senior Counsel, at (202) 551–6806 or Melissa R. Harke, Branch Chief, at (202) 551–6722 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained for a fee at the SEC's Public Reference Branch, 100 F Street NE., Washington, DC 20549–0102 (telephone (202) 551–5850).
1. Applicant is a multi-generational single-family office that provides services to the family and descendants of Dan L. Duncan. Applicant is a division of Enterprise Products Company, an energy company located in Houston, Texas (“Company”), and the Company is wholly-owned by Family Clients and is exclusively controlled (directly or indirectly) by one or more Family Members and/or Family Entities in compliance with rule 202(a)(11)(G)-1 (“Family Office Rule”). For purposes of the application, the term “Duncan Family” means the lineal
2. Applicant provides both advisory and non-advisory services (collectively, the “Services”). Any Service provided by the Applicant that relates to investment advice about securities or may otherwise be construed as advisory in nature is considered an “Advisory Service.”
3. Applicant represents that: (i) Other than the exception discussed in representation 4 below, each of the persons served by the Applicant is a Family Client,
4. Applicant provides Services to the mother of a spouse of a lineal descendant of Dan L. Duncan (“Mother-in-Law”), as well as certain related foundations (collectively, the “Additional Family Client”). Applicant represents that if the Mother-in-Law were a Family Client, the related foundations would meet the requirements of (d)(4)(v) of the Family Office Rule.
5. The Additional Family Client does not have an ownership interest in the Company. Applicant represents that the assets beneficially owned by Family Members and/or Family Entities (excluding the Additional Family Client's Family Entities) make up at least 75 percent of the total assets for which the Applicant provides Advisory Services.
6. Applicant represents that the Additional Family Client has important familial ties to and is an integral part of the Duncan Family. Applicant maintains that including the Additional Family Client in the “family” simply recognizes and memorializes the familial ties and intra-familial relationships that already exist, and have existed for at least 16 years while the assets of the Additional Family Client were managed by the Duncan Family.
1. Section 202(a)(11) of the Advisers Act defines the term “investment adviser” to mean “any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as a part of a regular business, issues or promulgates analyses or reports concerning securities . . . . ”
2. Applicant falls within the definition of an investment adviser under section 202(a)(11). The Family Office Rule provides an exclusion from the definition of investment adviser for which the Applicant would be eligible but for the provision of Services to the Additional Family Client. Section 203(a) of the Advisers Act requires investment advisers to register with the Commission. Because the Applicant has regulatory assets under management of more than $100 million, it is not prohibited from registering with the Commission under section 203A(a) of the Advisers Act. Therefore, absent relief, Applicant would be required to register under section 203(a) of the Advisers Act.
3. Applicant submits that its relationship with the Additional Family Client does not change the nature of the office into that of a commercial advisory firm. In support of this argument, Applicant notes that if the Mother-in-Law were the mother of a lineal descendent of Dan L. Duncan, rather than the mother of a spouse of a lineal descendent, there would be no question that each of the persons presently being served by the office would be a Family Member, and that the related foundations would meet the requirements of paragraph (d)(4)(v) of the Family Office Rule pertaining to charitable foundations. Applicant states that in requesting the order, the office is not attempting to expand its operations or engage in any level of commercial activity to which the Advisers Act is designed to apply. Indeed, although the Mother-in-Law does not fall within the definition of Family Member, she is considered to be, and is treated as, a member of the Duncan Family, and the number of natural persons who are not Family Members as a percentage of the total natural persons to whom the office would provide Advisory Services if relief were granted would be only approximately 25 percent. Applicant maintains that, from the perspective of the Duncan Family, Applicant seeks to continue providing Advisory Services exclusively to members of a single family.
4. Applicant also submits that there is no public interest in requiring the Applicant to be registered under the Advisers Act. Applicant states that the office is a private organization that was formed to be the “family office” for the Duncan Family, and that the office does not have any public clients. Applicant maintains that the office's Advisory Services are tailored exclusively to the needs of the Duncan Family and the Additional Family Client. Applicant argues that the presence of the Additional Family Client, who has been receiving Advisory Services from the office for 16 years, does not create any public interest that would require the office to be registered under the Advisers Act that is different in any manner than the considerations that apply to a “family office” that complies in all respects with the Family Office Rule.
5. Applicant argues that, although the Family Office Rule largely codified the exemptive orders that the Commission had previously issued before the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Commission recognized in proposing the rule that the exact representations, conditions, or terms contained in every exemptive order could not be captured in a rule of general applicability. The Commission noted that family offices would remain free to seek a Commission exemptive order to advise an individual or entity that did not meet the proposed family client definition, and that certain situations may raise unique conflicts and issues that are more appropriately addressed through an exemptive order process where the Commission can consider the specific facts and circumstances, than through a rule of general applicability. Applicant maintains that its unusual circumstances—providing Services to Family Clients and to an Additional Family Client for the past 16 years—have not changed the nature of the office's operations into that of a commercial advisory business, and that an exemptive order is appropriate based on the Applicant's specific facts and circumstances.
6. For the foregoing reasons, Applicant requests an order declaring it to be a person not within the intent of section 202(a)(11) of the Advisers Act. Applicant submits that the order is necessary and appropriate, in the public interest, consistent with the protection of investors, and consistent with the
1. The Applicant will offer and provide Advisory Services only to Family Clients and to the Additional Family Client, who will generally be deemed to be, and treated as if she and certain related foundations were, a Family Client; provided, however, that the Additional Family Client will be deemed to be, and treated as if she were, a Family Member for purposes of paragraph (b)(1) and for purposes of paragraph (d)(4)(vi) of the Family Office Rule.
2. The Company will at all times be wholly-owned by Family Clients and exclusively controlled (directly or indirectly) by one or more Family Members and/or Family Entities (excluding the Additional Family Client's Family Entities) as defined in paragraph (d)(5) of the Family Office Rule.
3. At all times the assets beneficially owned by Family Members and/or Family Entities (excluding the Additional Family Client's Family Entities) will account for at least 75 percent of the assets for which Applicant provides Advisory Services.
4. Applicant will comply with all the terms for exclusion from the definition of investment adviser under the Advisers Act set forth in the Family Office Rule except for the limited exception requested by this application.
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (“Commission”).
Temporary order and notice of application for a permanent order under section 9(c) of the Investment Company Act of 1940 (“Act”).
Applicants have received a temporary order exempting them from section 9(a) of the Act, with respect to guilty pleas entered on June 30, 2014 or shortly thereafter, by BNP Paribas S.A. (“BNPP”) in the U.S. District Court for the Southern District of New York (“District Court”) in connection with a plea agreement between BNPP and the U.S. Department of Justice and the Office of the U.S. Attorney for the Southern District of New York (together with the Department of Justice, the “DOJ”), and in the Supreme Court of the State of New York, County of New York (“NY Supreme Court”), in connection with a plea agreement between BNPP and the New York County District Attorney's Office (“DANY”), until the Commission takes final action on an application for a permanent order. Applicants have also applied for a permanent order.
Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090. Applicants: Betty Whelchel, BNP Paribas S.A., 787 Seventh Avenue, New York, NY 10019, with a copy to Donald R. Crawshaw and Wendy M. Goldberg, Sullivan & Cromwell LLP, 125 Broad Street, New York, NY 10004.
Kieran G. Brown, Senior Counsel, at (202) 551–6773 or Daniele Marchesani, Branch Chief, at (202) 551–6821 (Division of Investment Management, Chief Counsel's Office).
The following is a temporary order and a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. BNPP is organized under the laws of France as a credit institution and is a major global bank active in seventy-five countries with key positions in its three main areas of activity: retail banking, investment solutions and corporate and investment banking. FFTW and BSCM are each indirect wholly-owned subsidiaries of BNPP. IAM is a subsidiary of a company listed on the Alternative Investment Market of the London Stock Exchange and BNPP indirectly owns 25.22% of such company's shares. FFTW, a corporation formed under the laws of New York, BSCM, a corporation formed under the laws of Hawaii, and IAM, a limited liability company formed under the laws of the United Kingdom, are each registered as an investment adviser under the Investment Advisers Act of 1940. FFTW, BSCM and IAM serve as investment adviser (as defined in section 2(a)(20) of the Act) to investment companies registered under the Act or series of such companies (“Funds”) (such activities, “Fund Service Activities”).
2. On June 30, 2014, the DOJ filed a notice of intent to file a one-count criminal information in the District Court and the DANY filed a two-count criminal information in the NY Supreme Court, respectively against BNPP. The DOJ's information, which was filed on July 1, 2014, charged BNPP with conspiracy to commit an offense against the United States in violation of Title 18, United States Code, Section 371, by conspiring to violate the International Emergency Economic Powers Act (“IEEPA”), codified at Title 50, United States Code, Section 1701 et seq., and regulations issued thereunder, and the Trading with the Enemy Act (“TWEA”), codified at Title 50, United States Code Appendix, Section 1 et seq., and regulations issued thereunder. DANY's information charged BNPP with the crime of falsifying business records in the first degree, in violation of Penal Law § 175.10, and conspiracy in the fifth degree, in violation of Penal Law
3. BNPP will enter into a Cease and Desist Order Issued Upon Consent with the Board of Governors of the Federal Reserve System (the “Federal Reserve”) and the French Authorité de Contrôle Prudentiel et de Résolution (the “ACPR”) to resolve certain findings in connection with the conduct underlying the Plea Agreements (including the conduct described in any of the exhibits to the Plea Agreements) (the “Conduct”) by the Federal Reserve and the ACPR (the “Federal Reserve/ACPR Order”).
4. BNPP will enter into an Order to Cease and Desist and Order of Assessment of a Civil Money Penalty Issued Upon Consent with the Federal Reserve to resolve certain findings related to the Conduct by the Federal Reserve (the “Federal Reserve CMP Order”).
5. BNPP will enter into a Consent Order related to the Conduct with the New York State Department of Financial Services (“DFS”) with respect to falsifying business records and certain clearing activities (the “DFS Order”).
6. BNPP also will enter into a Consent Order related to the Conduct with the United States Department of the Treasury's Office of Foreign Asset Control (the “OFAC Order”).
7. Nine individuals who have been identified as having been responsible for the Conduct are current employees of BNPP or a Covered Person due to certain legal requirements imposed by Swiss or French law, as applicable. These individuals are not and will not be active and will not be involved in the operations of any Applicant or Covered Person. All but two of the individuals identified as having been responsible for the Conduct that remain employees of BNPP or a Covered Person will have either resigned, retired, or been terminated no later than December 31, 2014. The remaining two employees are inactive and will be terminated when Swiss law permits. All other employees of BNPP and any Covered Person who were identified as having been responsible for the Conduct have either resigned or been terminated.
8. BNPP has agreed to lawfully undertake the following pursuant to the Plea Agreements: (1) BNPP has agreed to pay a monetary penalty in the amount of $8.8336 billion; (2) BNPP has agreed that any compliance consultant or monitor imposed by the Federal Reserve or DFS will submit every report it produces to each of the Federal Reserve, the DFS, and DANY; (3) BNPP has agreed to enhance its compliance policies and procedures with regard to U.S. sanctions laws and regulations; (4) BNPP has agreed to abide by the Federal Reserve/ACPR Order, the Federal Reserve CMP Order, and the DFS Order; and (5) BNPP has agreed to truthfully and completely disclose any information requested and completely and fully cooperate with DANY, the Federal Bureau of Investigation, the Internal Revenue Service Criminal Investigation and any other governmental agency designated by the DOJ or DANY. Additionally, BNPP is undertaking ongoing remediation efforts to strengthen its internal controls, making structural changes to its Compliance and Group Financial Security (“GFS”) department and reviewing its business to ensure best practices with respect to U.S. dollar clearing and payment flows. These steps include upgrading their transaction filtering tools and streamlining alert management procedures. In addition, BNPP will physically transfer part of its GFS function from Paris to New York, and will operate the U.S. compliance function as a U.S. person. All BNPP majority-owned subsidiaries and branches have been instructed to implement a process for the direction of all U.S. dollar clearing transactions through BNPP's New York branch.
1. Section 9(a)(1) of the Act provides, in pertinent part, that a person may not serve or act as an investment adviser or depositor of any registered investment company or a principal underwriter for any registered open-end investment company or registered unit investment trust, if such person within ten years has been convicted of any felony or misdemeanor arising out of such person's conduct, as, among other things, an investment adviser, a broker or dealer, or a bank. Section 2(a)(10) of the Act defines the term “convicted” to include a plea of guilty. Section 9(a)(3) of the Act extends the prohibitions of section 9(a)(1) to a company any affiliated person of which has been disqualified under the provisions of section 9(a)(1). Section 2(a)(3) of the Act defines “affiliated person” to include, among others, any person directly or indirectly controlling, controlled by, or under common control with, the other person. Applicants state that BNPP is an affiliated person of each of the other Applicants within the meaning of section 2(a)(3). Applicants state that the Plea Agreements would result in a disqualification of each Applicant for ten years under section 9(a) of the Act because BNPP would become the subject of a conviction described in 9(a)(1).
2. Section 9(c) of the Act provides that the Commission shall grant an application for exemption from the disqualification provisions of section 9(a) if it is established that these provisions, as applied to Applicants, are unduly or disproportionately severe or that the Applicants' conduct has been such as not to make it against the public interest or the protection of investors to grant the exemption. Applicants have filed an application pursuant to section 9(c) seeking temporary and permanent orders exempting the Applicants and other Covered Persons from the disqualification provisions of section 9(a) of the Act.
3. Applicants believe they meet the standard for exemption specified in section 9(c). Applicants state that the prohibitions of section 9(a) as applied to them would be unduly and disproportionately severe and that the conduct of Applicants has been such as not to make it against the public interest or the protection of investors to grant the exemption from section 9(a).
4. Applicants assert that the Conduct did not involve any of Applicants acting as an investment adviser or depositor of any Fund, employees' securities company, or business development company or as principal underwriter for any open-end management investment company, unit investment trust, or face amount certificate company registered under the Act. The Conduct similarly did not involve any Fund with respect to which Applicants engaged in Fund Service Activities.
5. Except as discussed above, Applicants have agreed that neither they nor any of the other Covered Persons will employ any of the current or former employees of BNPP or any Covered Person who previously have been or who subsequently may be identified by BNPP or any U.S. or non-U.S. regulatory or enforcement agencies as having been responsible for the Conduct in any capacity without first making a further application to the Commission pursuant to section 9(c). Applicants also have agreed that each Applicant (and any Covered Person that acts in any capacity described in section 9(a) of the Act) will adopt and implement policies and procedures reasonably designed to ensure compliance with the terms and conditions of the order granted under section 9(c). In addition, BNPP has agreed to comply in all material respects with the material terms and conditions of the Plea Agreements and the material terms of the Federal Reserve/ACPR Order, the Federal Reserve CMP Order, the DFS Order and the OFAC Order, all of which are described more fully in the application.
6. Applicants further represent that the inability of FFTW, BSCM, and IAM to continue providing Fund Service Activities would result in potential hardships for both the Funds and their shareholders. Applicants state that they will distribute written materials, including an offer to meet in person to discuss the materials, to the board of trustees/directors of the Funds, including the directors who are not “interested persons,” as defined in section 2(a)(19) of the Act, of such Funds, and their independent legal counsel as defined in rule 0–1(a)(6) under the Act, if any, regarding the Plea Agreements, any impact on the Funds, and the application. The Applicants will provide the Funds with all information concerning the Plea Agreements and the application that is necessary for the Funds to fulfill their disclosure and other obligations under the federal securities laws.
7. Applicants also state that, if FFTW, BSCM, and IAM were barred from providing Fund Service Activities to the Funds, the effect on their business and employees would be severe.
8. Applicants state that none of the Applicants and none of their affiliates previously have received orders under section 9(c).
Applicants agree that any order granted by the Commission pursuant to the application will be subject to the following conditions:
1. Any temporary exemption granted pursuant to the application will be without prejudice to, and will not limit the Commission's rights in any manner with respect to, any Commission investigation of, or administrative proceedings involving or against, Covered Persons, including, without limitation, the consideration by the Commission of a permanent exemption from section 9(a) of the Act requested pursuant to the application or the revocation or removal of any temporary exemptions granted under the Act in connection with the application.
2. Except as set out in the second paragraph on Section IV.E. of the application, neither the Applicants nor any of the other Covered Persons will employ any of the current or former employees of BNPP or any Covered Person who previously have been or who subsequently may be identified by BNPP or any U.S. or non-U.S. regulatory or enforcement agencies as having been responsible for the Conduct in any capacity without first making a further application to the Commission pursuant to section 9(c).
3. Each Applicant and Covered Person will adopt and implement policies and procedures reasonably designed to ensure that it will comply with the terms and conditions of the requested orders within 60 days of the date on which any permanent order is granted or, with respect to condition four, such later date as may be contemplated by the Federal Reserve/ACPR Order, the Federal Reserve CMP Order, the DFS Order or the OFAC Order.
4. BNPP will comply in all material respects with the material terms and conditions of the Plea Agreements and with the material terms of the Federal Reserve/ACPR Order, the Federal Reserve CMP Order, the DFS Order and the OFAC Order.
5. Applicants will provide written notification to the Chief Counsel of the Commission's Division of Investment Management, with a copy to the Chief Counsel of the Commission's Division of Enforcement, of a material violation of the terms and conditions of the requested orders within 30 days of discovery of the material violation.
The Commission has considered the matter and finds that the Applicants have made the necessary showing to justify granting a temporary exemption.
By the Commission.
Pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934 (the “Act”),
OneChicago is proposing to file with the SEC a Notice to Members (“NTM”) that the Exchange has previously filed with the CFTC, but did not file with the SEC. OneChicago is filing the NTM with the SEC because it relates to sales practices.
On September 12, 2012, OCX filed NTM 2012–26 with the CFTC (originally filed as NTM 2012–24 on August 31, 2012, but refiled as NTM 2012–26 to make a technical amendment). NTM 2012–26 updates NTM 2010–13 by separating the issues in NTM 2012–26 (Pre-Execution Discussions and Cross Trades) from the general block trade issues discussed in NTM 2010–13. NTM 2012–26 provides guidance on two issues related to trading and sales practices. First, NTM 2012–26 interprets and provides guidance on OCX Rule 614 with regard to pre-execution discussions. Second, NTM 2012–26 interprets and provides guidance on OCX Rules 409 and 610 with regard to cross trades.
OCX Rule 614 prohibits market participants from entering any Order into the OneChicago System which has been pre-arranged, except as expressly permitted by Rules 416 and 417 or in accordance with any policies or procedures for pre-execution discussions from time to time adopted by the Exchange. NTM 2012–26 establishes such a pre-execution discussion policy. Specifically, NTM 2012–26 permits market participants to engage in pre-execution discussions pursuant to which one party may agree in advance to take the opposite side of the other party's Order for a transaction to be executed on the Exchange.
NTM 2012–26 then lays out three conditions which, if applicable, must be met in order for a pre-execution discussion to comply with the NTM. First, customers of each party engaging in a pre-execution discussion must consent to allow pre-execution discussions with other market participants. Second, any market participant who is solicited to participate in an OCX transaction through pre-execution discussions shall not (i) disclose to any other party the details of such discussions, or (ii) enter an order or quote through the Exchange to take advantage of information conveyed during such discussions. Finally, for any non-bilateral trade conducted on the Exchange pursuant to a pre-execution discussion, a period of four seconds must elapse between entering the first order or quote and entering the second order for the opposite side.
OCX Rule 409 states that the Exchange may from time to time adopt procedures to facilitate the crossing of Orders through the OneChicago System. OCX Rule 610 lays out the requirements for market participants executing customers' orders, and more specifically, explains that customers' orders are treated with higher priority than proprietary orders.
NTM 2012–26 expands upon OCX Rules 409 and 610 and permits the crossing of Orders so long as one side of the trade is entered into the OneChicago System at least four seconds before the opposite side. In addition, if the market participant crossing the Orders is taking the opposite side of a customer Order, that market participant must enter the customer's side of the trade into the OneChicago System first.
The NTM then goes on to add that market participants shall not be in violation of either OCX Rule 409 or OCX Rule 610 if no Person on whose behalf the orders are being crossed has knowledge of the other side's Order and there is no coordination or prearrangement of the cross trade. In such a circumstance, both sides of the trade are responsible for demonstrating to OCX staff that neither side had knowledge of the other's Order.
The NTM is attached as
In its filing with the Commission, OneChicago included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of OneChicago's filing is to update the OCX Rulebook to account for a filing OneChicago has previously made with the CFTC, but has not made concurrently with the SEC. Specifically, the purpose of the NTM is to clarify the obligations of market participants regarding pre-execution discussions and cross trades, and to require that certain conditions are met in order to engage in pre-execution discussions or cross trades.
The purpose of the pre-execution discussion section in NTM 2012–26 is to explain to market participants how a pre-execution discussion may be effected within the bounds of OCX Rule 614. The NTM lays out three conditions that must be met in order to engage in a pre-execution discussion. These three conditions have been imposed for two purposes: (1) To protect customers, and (2) to preserve the integrity of OCX's markets. Regarding customer protection, market participants engaging in pre-execution discussions on behalf of customers must receive consent from their customers to engage in such discussions. This requirement ensures that customers are aware of the method by which their Orders are being executed. With regard to preserving the integrity of OCX's markets, market participants are prohibited from entering any Order on the basis of information gained through a pre-execution discussion. This prohibition preserves market integrity by ensuring that market participants are not trading on the basis of non-public information that is not freely available.
The purpose of the cross trade section in NTM 2012–26 is to explain to market participants how a cross trade may be effected within the bounds of OCX Rule 409 and 610. The NTM preserves market integrity be requiring cross trades to be exposed to market risk for a period of at least four seconds. This delay ensures that the trade to be crossed has the chance to execute competitively with other market participants. Additionally, the four second delay rule requires market participants to enter the customer side of the trade (if the market participant is taking the opposite side of a customer order) first, allowing the customer to be executed against a third party market participant. This requirement ensures that customers receive fair and reasonable prices for their trades.
OneChicago believes that the proposed rule change is consistent with Section 6(b) of the Act,
NTM 2012–26 promotes just and equitable principles of trade and fosters cooperation and coordination with persons engaged in facilitating transactions in securities by explaining the method by which these market participants may engage in two distinct trading practices that are permitted by the Exchange. The NTM sets forth requirements for market participants effecting pre-execution discussions and cross trades. The Exchange also believes that the rule change benefits investors and market participants because it enhances customer protection and helps preserve the integrity of OCX's market.
OneChicago does not believe that the rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed rule change is equitable and promotes the principles of trade because it is designed to prevent manipulative acts and protect investors. Additionally, all of the conditions to engage in pre-execution discussions and cross trades apply equally to all market participants and are not enforced in a discriminatory manner.
Comments on the OneChicago proposed rule change have not been solicited and none have been received.
OneChicago filed the proposed rule change with the CFTC on September 12, 2012. OneChicago did not file the proposed rule change concurrently with the SEC. Instead, OneChicago filed the proposed rule change on June 17, 2014.
At any time within 60 days of the date of effectiveness
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 amend its Quote Risk Monitor Mechanism rule. The text of the proposed rule change is provided below.
Each Market-Maker who is obligated to provide and maintain continuous electronic quotes pursuant to Rule 8.5,
When the Exchange determines that the Market-Maker has traded [more than]
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 operation of the Exchange's Quote Risk Monitor (“QRM”) Mechanism is codified in Rule 8.12. The purpose of this proposed rule change is to add three new functions to the QRM Mechanism to help Market-Makers and Participant organizations control the risk of multiple, nearly simultaneous executions across related option series. The use of the new functions is voluntary. The proposed rule change also makes clear that the Participant organization with which a Market-Maker is associated (as well as the individual Market-Maker) may establish parameters by which the Exchange will activate the QRM Mechanism for the Market-Maker (the current rule text only explicitly permits Market-Makers to establish such parameters). The Exchange also proposes to make some changes to the Rule 8.12 text to make such rule more readable in conjunction with the other changes proposed herein.
The first new function available to Market-Makers allows each Market-Maker the ability to specify a maximum cumulative percentage that the Market-Maker is willing to trade (the “Cumulative Percentage Limit”). Under the proposal, the cumulative percentage is the sum of the percentages of the original quoted size of each side of each series within a class that traded, and a rolling time period in milliseconds within which such Cumulative Percentage Limit is to be measured (the “Measurement Interval”). When the QRM Mechanism determines that the Market-Maker has traded at least the Cumulative Percentage Limit for any option class during any rolling Measurement Interval, the QRM Mechanism will automatically cancel all of the electronic quotes being disseminated with respect to that Market-Maker in that option class and any other classes with the same underlying security until the Market-Maker refreshes those electronic quotes.
By way of example, assume a Market-Maker is quoting the following series in a class:
If the Cumulative Percentage Limit is set at 150% for the Market-Maker and an order to buy 40 contracts of Series A is received, the series percentage would be 80% (
Percentages are also calculated based on the original quote size, not the remaining quote size. Using the quotes set forth above as an example, if an order to buy 40 contracts of Series A is received, the series percentage would be 80% (
The proposed rule change adds a second new function to the QRM Mechanism that would allow each Market-Maker to specify the maximum number of series for which either side of the quote is fully traded (the “Number of Series Fully Traded”) and a Measurement Interval. When the QRM Mechanism determines that the Market-Maker has traded at least the Number of Series Fully Traded for any option class during any rolling Measurement Interval, the QRM Mechanism will automatically cancel all of the Market-Maker's electronic quotes being disseminated in that option class and any other classes with the same underlying security until the Market-Maker refreshes those electronic quotes.
To illustrate this functionality, assume that a Market-Maker is quoting the following series in a class:
Whenever one of the QRM functions (
The Exchange has above proposed that, when the QRM Mechanism automatically cancels all of a Market-Maker's electronic quotes in an option class, the Exchange will also cancel all of the Market-Maker's electronic quotes in any other classes with the same underlying security. The purpose of this is because the risk involved in trading beyond a Market-Maker's risk profile extends to classes that have the same underlying security (since often the only difference between such classes is the multiplier of number of units of the underlying security).
Finally, the proposed amendment adds a third function that allows the Exchange to cancel all quotes and orders of a Market-Maker or Participant Organization once a specified number of QRM Incidents has been reached. Under this proposed functionality, a Market-Maker or a Participant organization may specify a maximum number of QRM Incidents with respect to all QRM Functions (
Once the QRM Mechanism is triggered and quotes (and in the case of an Exchange-wide cancellation, orders) are cancelled, all counters that determine whether the QRM Mechanism is triggered and a QRM Incident occurs will be reset for all classes for which quotes (and in the case of an Exchange-wide cancellation, orders) were canceled for all parties for whom such quotes (and in the case of an Exchange-wide cancellation, orders) were canceled. This means that, if the QRM Mechanism is triggered due to a party's reaching the Contract Limit, Cumulative Percentage Limit, or Number of Series Fully Traded for a class, and quotes (and in the case of an Exchange-wide cancellation, orders) are canceled, the number of contracts traded in all classes for which quotes and orders were canceled would be reset to zero, the cumulative percentage for all classes for which quotes and orders were canceled would be reset to zero, and the number of series that are fully traded for all classes for which quotes and orders were canceled would be reset to zero. If the Exchange cancels all of the Market-Maker's or Participant
As with the Contract Limit, Cumulative Percentage Limit or Number of Series Fully Traded QRM functions, Market-Makers and Participant organizations are not required to set parameters for the Exchange-wide QRM. All QRM Mechanism functionalities are currently optional.
The Exchange represents that it has the systems capacity to permit the operation of these enhanced QRM Mechanism functions. The Exchange does note that, in a situation in which the QRM Mechanism is triggered, and quotes (and in the case of an Exchange-wide cancellation, orders) must be canceled for multiple classes related to the same underlying security or across multiple business clusters,
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) of the Act.
In particular, the Exchange believes that investors and market participants will benefit from the proposed new functionality of the QRM Mechanism. Market-Makers are vulnerable to the risk that, through an error in pricing or due to market events, they will receive multiple, automatic executions at disadvantageous or erroneous prices before they can adjust their quotes. Without adequate risk management tools such as the QRM, Market-Makers could widen their quotes, quote less aggressively or limit their quote size. Such actions may undermine the quality of the markets available to customers and other market participants.
Accordingly, with the enhancements proposed by the Exchange to QRM, the use of the QRM Mechanism will encourage more aggressive and narrower quoting, thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system, and, in general, more effectively protecting investors and the public interest. In addition, providing Market-Makers with more tools for managing risk will facilitate transactions in securities because, as noted above, the quotes of market makers will be more reliable and could help prevent erroneous orders and transactions. As a result, the new functionality for the QRM Mechanism has the potential to promote just and equitable principles of trade. Also, the proposed changes do not change to whom any aspects of the QRM Mechanism applies, as the proposed changes apply to all market participants to whom the QRM Mechanism previously applied.
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 Exchange believes that the functions of the QRM Mechanism promote fair and orderly markets.
C2 does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the use of the QRM Mechanism including the new enhancements is voluntary. Further, the proposed changes do not change to whom any aspects of the QRM Mechanism applies, as the proposed changes apply to all market participants to whom the QRM Mechanism previously applied. Similarly, the Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because, again, the use of the QRM Mechanism including the new enhancements is voluntary. Moreover, the proposed enhancements to the QRM Mechanism apply only to trading on C2. To the extent that the proposed changes may make C2 a more attractive trading venue for market participants on other exchanges, such market participants may elect to become C2 market participants.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 19(b)(3)(A) of the Act
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.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934 (“Exchange Act”),
On June 18, 2014, NFA submitted the proposed rule change to the CFTC for approval. The CFTC has not yet approved the proposed rule change.
Under the proposed Interpretive Notice to NFA Compliance Rules 2–4 and 2–36: Prohibition on the Use of Certain Electronic Funding Mechanisms (“Interpretive Notice”), NFA Members (“Members”) are prohibited from allowing customers to fund futures or forex accounts with a credit card or other electronic funding methods tied to a credit card. The proposed Interpretive Notice does not prohibit Members from allowing customers to fund futures or forex accounts with electronic funding mechanisms that are tied to a customer's bank account at a financial institution provided the funds deposited are drawn directly from the customer's bank account. The Interpretive Notice requires, however, that the Member be able to distinguish, prior to accepting funds, between an electronic funding method that draws money from the customer's account at a financial institution and a traditional credit card, and be able to reject the credit card transaction before accepting funds. The Interpretive Notice also requires Members offering this type of electronic funding mechanism to provide adequate risk disclosure in light of the customer's financial circumstances.
The text of the Interpretive Notice is available on NFA's Web site at
In its filing with the Commission, NFA 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. NFA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Section 15A(k) of the Exchange Act
NFA adopted the Interpretive Notice to NFA Compliance Rules 2–4 and 2–36 prohibiting Members from allowing customers to fund futures or forex accounts with a credit card or other electronic payment methods tied to a credit card after an extensive study and analysis done at the direction of NFA's Compliance and Risk Committee (“CRC”). The CRC's study and analysis found significant customer protection concerns with credit card funding in the retail forex area, and therefore NFA's Board of Directors, upon the recommendation of the CRC, determined the only appropriate action was to adopt this prohibition. The prohibition is entirely consistent with NFA's longstanding position that it is a violation of NFA Compliance Rule 2–4, and inconsistent with just and equitable principles of trade, for Members to
Many Forex Dealer Members (“FDMs”) offer their retail forex customers the ability to fund their accounts directly using a credit card or via an online payment facilitator (e.g., PayPal) that is commonly tied to a credit card (Payment Facilitator(s)—Credit). The CRC had several concerns with this practice, including that retail customers may be using credit cards to open accounts with funds that are borrowed and, therefore, not risk capital. The CRC's concern had significant merit since a 2012 review of several FDM Web sites showed that those FDMs promoted credit funding as the “quickest,” “easiest,” and “fastest” method of investing.
Given its concern, the CRC began considering whether it would be appropriate for NFA to prohibit its Members from allowing customers to fund their accounts (both forex and futures) via a credit card or a Payment Facilitator—Credit. As part of its consideration, the CRC directed NFA staff to conduct a detailed analysis of FDM account funding practices, customer income levels, and customer account funding origins. The analysis covered approximately 15,500 accounts held at seven FDMs—all of which were registered as retail foreign exchange dealers (“RFED”)—during 2012. The results of this analysis revealed:
• Credit card funding restrictions varied among the FDMs. Several permitted the use of a credit card up to $10,000 per transaction. One firm based its restriction on a customer's income level and a permitted customer with a net income between $0–$19,000 to fund an account with as much as $1,000 through a credit card;
• The average life of a retail forex trading account at an RFED was 4 months regardless of the amount of the initial deposit;
• For the 4th quarter 2013, 72% of the accounts analyzed were unprofitable;
• 78% of all accounts were initially funded via credit card/debit card/online payment facilitator;
• Almost 50% of all account holders reported a net income of $50,000 or less; and
• Deposits made by credit card/debit card/online payment facilitator were markedly lower than deposits made by wires or checks. For example, for customers with a net income less than $50,000, the average deposit via credit card/debit card/online payment facilitator was approximately $1,050 whereas for checks or wires it was approximately $6,650. This difference was also prevalent at other net income levels, including above $100,000 where the average deposit via credit card/debit card/online payment facilitator was approximately $2,450 whereas for checks or wires it was approximately $28,000.
Given the prevalence of credit card usage by customers to initially fund retail forex accounts and the fact that such a large percentage of those customers had a relatively low income level ($50,000 or less), the CRC reviewed whether the FDMs provide specific risk disclosures regarding the implications of funding via a credit card or a Payment Facilitator—Credit and learned that none of the FDMs warned customers that they should not use a credit card or Payment Facilitator—Credit to borrow money to invest in retail forex.
The CRC found the data very disturbing from a customer protection perspective because it reveals that lower income individuals predominantly use credit cards or Payment Facilitators—Credit to fund their accounts and the vast majority of these individuals lose their funds trading forex. Although the CRC recognized that it is possible that all lower income individuals pay off their credit card balances each month and are not borrowing funds to invest beyond the payment due date, the CRC concluded that this possibility is simply implausible given the low income levels.
NFA Compliance Rule 2–4 requires Members and their Associates to observe high standards of commercial honor and just and equitable principles of trade in the conduct of their commodity futures business. Similarly, NFA Compliance Rule 2–36(c) requires Members and their Associates to observe high standards of commercial honor and just and equitable principles of trade in the conduct of their forex business. The CRC concluded that permitting customers to utilize funding mechanisms that by their very nature allow retail customers to borrow funds to invest in markets where the risk of loss can be substantial and a total loss may occur simply is not consistent with a Member's obligation to observe high standards of commercial honor and just and equitable principles of trade. Given NFA's analysis of the FDMs' customers' usage of credit cards and Payment Facilitators—Credit, and the fact that credit cards and Payment Facilitators—Credit readily allow individuals to borrow funds to purchase goods and services, the CRC concluded that without adequate mechanisms in place to ensure that customers are not borrowing funds to invest in the highly volatile futures and forex markets, Members should not be permitted to allow their customers to invest via electronic funding mechanisms.
The Interpretive Notice does not ban forms of electronic funding mechanisms that are tied to a customer's bank account at a financial institution, such as a debit card or a PayPal account tied to a bank account. The CRC found that these funding mechanism are acceptable and appear consistent with a Member's obligation to observe high standards of commercial honor and just and equitable principles of trade because when a customer uses an electronic funding mechanism directly tied to an account at a financial institution, the customer has funds on hand that are immediately transferred from the customer's bank account to the Member, which significantly reduces the likelihood that funds are being borrowed to invest. However, in order for a Member to allow customers to use electronic funding mechanisms, the Member must be able to distinguish between those electronic funding mechanisms tied to a credit card and those tied to a bank account and reject the ones tied to a credit card.
Under the Interpretive Notice, if a Member offers customers the ability to use an electronic funding mechanism, then the Member must utilize a processing system or some other electronic mechanism that can ensure the funding device is a debit card or some other payment facilitator that is tied directly to the customer's bank account at a financial institution. Moreover, any Member offering this type of funding mechanism, must also ensure that adequate risk disclosure is provided to customers in light of the customers' financial circumstances.
NFA believes that the proposed rule change is authorized by, and consistent with, Section 15A(k)(2)(B) of the
NFA recognizes that the proposed rule change may impose a minor burden on competition with respect to foreign customers that might be able to use credit cards to fund accounts with foreign intermediaries that are not Members of NFA. NFA concluded, however, that any burden was outweighed by the need to adopt appropriate customer protection measures. NFA also concluded that the burden was minimized by the fact that the Interpretive Notice permits Members to offer customers the ability to use an electronic funding mechanism that draws funds directly from the customer's account at a financial institution, provided the Member is able to distinguish between those electronic funding mechanisms drawing funds directly from the customer's account at a financial institution and those tied to a credit card and reject those transactions tied to a credit card.
The CRC requested feedback on the concept of prohibiting Members from allowing customers to fund their forex or futures accounts with a credit card or Payment Facilitator—Credit from NFA's Futures Commission Merchant (“FCM”), Introducing Broker (“IB”), Commodity Pool Operator (“CPO”) and Commodity Trading Advisor (“CTA”) Advisory Committees. Each of these Committees fully supported a ban of this practice for both futures and forex accounts. Given the importance of this issue, the CRC did not obtain the views of NFA's FDM Advisory Committee—which had recently lost most of its representatives due to FDM withdrawals and consolidations—but rather obtained the FDMs' views by issuing a Notice to
Specifically, NFA received comments from five of NFA's 17 FDMs (one of which was filed by a law firm on behalf of the FDM), the Financial Services Roundtable (“FSR”) and a retail forex customer. All but one FDM strongly opposed a ban against FDMs accepting credit cards from customers to fund forex trading accounts. Despite the fact that credit card funding was not “an insignificant portion” of its business, this FDM did not object to the proposed ban but requested a 60-day implementation period in order to make operational changes to reject credit card transactions while permitting debit card transactions and to educate clients about the ban.
The CRC carefully considered all of the comments received. Below is a summary of the material comments and the CRC's response.
• Forex customers must react to market changes during non-banking hours and credit cards are the only funding method to do so, while checks or wire transfers often take too long to be credited to prevent a margin close-out.
• Credit cards are more economical since FDMs do not charge a fee to use them while banks charge fees for wire transfers and use of Automated Clearing House (“ACH”).
• Credit card funding is one of the fastest, most convenient, and lowest cost funding vehicles.
• Many FDMs represented to NFA that customers need to use credit cards in order to quickly add funds in order to avoid forced liquidation of their positions.
The CRC recognized that credit cards may provide an efficient and, in some instances, economical method for depositing funds into a trading account. The CRC believed, however, that this benefit is vastly outweighed by the risk associated with a customer borrowing funds to invest in futures or forex. Moreover, the CRC believed that the efficient and economical benefits of credit card funding can be retained by permitting Members to offer customers the ability to use an electronic funding mechanism that draws funds directly from the customer's account at a financial institution, provided the Member is able to distinguish between those electronic funding mechanisms drawing funds directly from the customer's account at a financial institution and those tied to a credit card and reject those transactions tied to a credit card.
Additionally, NFA's analysis revealed that very few forex positions overall are auto-liquidated, customers generally add funds to their account using the same method as their initial funding method, and positions in accounts funded through a credit card are not less likely to be auto-liquidated. In fact, NFA's analysis showed that those accounts funded through a credit card actually had positions auto-liquidated more frequently than those accounts funded through traditional methods, although the percentage of auto-liquidations remained relatively low.
• Funds deposited by traditional methods may ultimately be drawn from credit sources.
The CRC acknowledged that the prohibition could be circumvented because accounts funded with deposits using traditional methods may ultimately be drawn from credit sources. The CRC, however, concluded that banning the direct use of credit cards would lessen the likelihood of this occurrence because a customer can make an instantaneous decision to use a credit card, whereas other forms of credit generally take longer to obtain and provide the customer with more time to consider the consequences of borrowing funds to invest. Moreover, the CRC felt that credit cards are funding mechanism that lend themselves to borrowing funds and permitting this type of funding mechanism is directly contrary to NFA's longstanding position that it is a violation of NFA Compliance Rule 2–4, and inconsistent with just and equitable principles of trade, for Members and Associates to encourage customers to borrow money to invest.
• The ban is overly broad since alternative payment facilitators (e.g., PayPal, MoneyBookers and Google Checkout) may be funded through a bank account or other debit sources.
The CRC addressed this comment by providing that the ban did not apply to electronic payment methods that are
• FDMs have other procedures in place to ensure that customers only use risk capital even if the source is a credit card.
• NFA has other rules that ensure that customers do not invest funds in excess of risk capital (Rule 2–36 “know your customer,” risk disclosure requirements, and guidance requiring FCMs to prominently disclose that customers should only fund with risk capital).
The CRC acknowledged that NFA had other rules in place to guard against customers investing in excess of risk capital and that FDMs should have other procedures in place to ensure customers only use risk capital even if the source was a credit card. The CRC concluded, however, that based on the analysis conducted and the fact that credit cards by their nature permit easy access to borrowed funds any disclosure alone is an insufficient customer protection measure to address the issue.
• Banks that issue credit cards consider a customer's credit worthiness in determining the customer's credit limit, which is a built in risk safeguard.
The CRC did not believe this provided a credible rationale to permit credit card funding. Retail customers should not be borrowing funds to invest in futures or forex. Regardless of the credit limit determined by a bank, a customer should not be using borrowed funds to invest in the volatile futures or forex markets where the risk of loss may be substantial.
• Certain foreign jurisdictions permit credit card funding.
• Credit cards are permitted in numerous industries in which “customer funds are put at risk with far fewer safeguards than retail forex trading,” including the New York State Lottery, which provides customers the option of signing up for subscriptions to certain lottery games using credit cards, and the Nassau County New York OTB permits individuals to make deposits via credit card to their permanent wagering account.
The CRC was not persuaded by the comment that many foreign jurisdictions permit customers to use credit cards to fund forex accounts. The CRC felt that the customer protection concerns raised by this practice were far too disturbing and the fact that foreign jurisdictions may permit this practice did not outweigh these concerns. The CRC also found entirely unpersuasive the fact that other industries, particularly off-track betting parlors or lottery related agencies, permitted customers to use credit cards.
• The FDMs opposing a ban on funding via a credit card recommended that NFA address this issue short of imposing a prohibition. For example, these FDMs believe that NFA should do one or more of the following—prohibit heavy promotion of credit card funding, require account withdrawals to go back to the original funding credit card, establish a monthly deposit cap for credit card funding, enhance disclosures regarding risk capital usage, issue prominent warnings regarding credit card usage to underscore the risks of using this funding means if a customer does not have sufficient bank funds to cover the deposit, and recommending that customers pay off credit card balances monthly by the due date.
The CRC considered other alternatives and concluded that given the customer protection concerns raised, and the fact that credit cards are any easy source of borrowed funds, the only way to address the issues was to prohibit Members from allowing customers to use credit cards or other electronic methods unless the Member could distinguish between electronic payments that are tied to a bank account and traditional credit card transactions and reject the credit card transactions.
• The FSR's letter claimed banning credit cards and the use of credit cards through payment facilitators (e.g. Paypal) is a significant regulatory action that has far reaching implications. The FSR urged NFA to consider viable alternatives and seek comments from those outside the forex industry.
The CRC determined that one of NFA's primary responsibilities is the protection of customers in the futures and forex industries and that the prohibition was necessary to achieve this objective. The CRC also observed that NFA's mandate is not to promote the business interests of credit card companies.
The proposed rule change is not effective because the CFTC has not approved the proposed rule change.
Section 19(b)(7)(C) of the Act provides, inter alia that “[a]ny proposed rule change of a self-regulatory organization that has taken effect pursuant to [Section 19(b)(7)(B) of the Act] may be enforced by such self-regulatory organization to the extent such rule is not inconsistent with the provisions of the title, the rules and regulations thereunder, and applicable Federal law. At any time within 60 days of the date of effectiveness of the proposed rule change, the Commission, after consultation with the CFTC, may summarily abrogate the proposed rule change and require that the proposed rule change be refiled in accordance with the provisions of Section 19(b)(1) of the Exchange Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Exchange 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, Station Place, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
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.
The Department will accept comments from the public up to
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 Ronda Harvey, who may be reached on (202) 647–6009 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.
The Office of Emergencies in the Diplomatic and Consular Service (EDCS) manages the solicitation and acceptance of gifts to the U.S. Department of State. The information requested via donor letters is a necessary first step to accepting donations. The information is sought pursuant to 22 U.S.C. 2697, 5 U.S.C. 7324 and 22 CFR, Part 3) and will be used by EDCS's Gift Fund Coordinator to demonstrate the donor's intention to donate either an in-kind or monetary gift to the Department. This information is mandatory and must be completed before the gift is received by the Department.
The information collection forms will be available electronically via the State Department's Internet Web site (
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. 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 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to August 6, 2014.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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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 Susan B. Summers—Chief, Medical Clearances at Department of State, Office of Medical Clearances, SA–15 Room 400, 1800 North Kent St., Rosslyn, VA 22209, who may be
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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.
Form DS–6561 provides a concise summary of basic medical history, lab tests and physical examination for employees and family members that are not members of one of the five Foreign Affairs agencies to include State, USAID, Foreign Commercial Service, Foreign Agricultural Service and Board of Broadcasting Governors. It is designed to collect current and adequate information on which medical providers can base decisions on whether an employee and family members will have sufficient medical resources at a diplomatic mission abroad to maintain the health and fitness of the individual and family members.
The information collected will be collected through the use of an electronic forms engine or by hand written submission using a pre-printed form.
Maritime Administration, DOT.
Notice and request for comments.
The Department of Transportation (DOT) invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The collection involves enrollment of eligible vessels in the Maritime Security Program (MSP). The information to be collected will be used to determine if selected vessels are qualified to participate in the Maritime Security Program. We are required to publish this notice in the
Written comments should be submitted by August 6, 2014.
You may submit comments [identified by Docket No. DOT–MARAD–2014–0094] through one of the following methods:
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Bill Kurfehs, 202–366–2318, Office of Sealift Support, Maritime Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590.
The collected information is necessary for MARAD to determine if selected vessels are qualified to participate in the Maritime Security Program.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.93.
Maritime Administration (MARAD), DOT.
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 August 6, 2014.
Barbara Jackson, 202–366–0615, Office of Management and Administrative Services, Maritime Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590.
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
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.
Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimate of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.93.
MARAD, DOT.
Notice and request for comments.
The Department of Transportation (DOT) invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. We are required to publish this notice in the
Written comments should be submitted by September 5, 2014.
You may submit comments [identified by Docket No. DOT–OST–2014–0096] through one of the following methods:
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Albert Bratton, Telephone Number: (202) 366–5769, Office of Business Finance, Maritime Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.93.
Maritime Administration, DOT.
Notice and request for comments
The Maritime Administration (MARAD) invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew a previously approved information collection that is summarized below under
Written comments should be submitted by September 5, 2014.
You may submit comments [identified by Docket No. DOT–MARAD–2014–0097] through one of the following methods:
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Dennis Brennan, 202–366–1029, Office of Cargo and Commercial Sealift, Maritime Administration, U.S. Department of Transportation, 1200 New Jersey, Avenue SE., Washington, DC 20590.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.93.
Maritime Administration, Department of Transportation.
Inventory of U.S.-Flag Launch Barges.
The Maritime Administration is updating its inventory of U.S.-flag launch barges. Additions, changes and comments to the list are requested. Launch barge information may be found at
Any comments on this inventory should be submitted in writing to the contact person by August 6, 2014.
Michael Hokana, Office of Cargo Preference and Domestic Trade, Maritime Administration, MAR–730, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone 202–366–0760; email:
Pursuant to 46 CFR Part 389 (Docket No. MARAD–2008–0045) Determination of Availability of Coastwise-Qualified Vessels for the Transportation of Platform Jackets, the Final Rule requires that the Maritime Administration publish a notice in the
(1) Their interest in participating in the transportation and, if needed, the launching or installation of offshore platform jackets; (2) the contact information for their company; and, (3) the specifications of any currently owned or operated coastwise qualified launch barges or plans to construct same. In addition, we are also seeking information on non-coastwise qualified (U.S.-flag) launch barges as well.
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
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 August 6, 2014.
Comments should refer to docket number MARAD–2014–0100.
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 TRESOR is:
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 August 6, 2014.
Comments should refer to docket number MARAD–2014–0099. 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 GYPSY is:
The complete application is given in DOT docket MARAD–2014–0099 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 (NHTSA), Department of Transportation (DOT).
Request for public comment on proposed collection of information.
Before a Federal agency can collect certain information from the
Comments must be received on or before September 5, 2014.
Refer to the docket notice number cited at the beginning of this notice and send your comments by any of the following methods:
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Charlene Doyle., Contracting Officer's Technical Representative, Office of Regulatory Analysis and Evaluation, National Highway Traffic Safety Administration, 1200 New Jersey Ave. SE., NVS–431, Washington, DC 20590. Ms. Doyle's phone number is 202–366–1276 and her email address is
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
Tire Pressure Monitoring Systems (TPMS) were mandated in Federal Motor Vehicle Safety Standard (FMVSS) No. 138, so that drivers are warned when the pressure in one or more of the vehicle's tires has fallen to 25 percent or more below the placard pressure, or a minimum level of pressure specified in the standard, whichever pressure is higher, and may be informed about which of the four tires is underinflated. As of September 1, 2007, after a phase-in period beginning on October 5, 2005, TPMS was required on all new light vehicles (i.e., passenger cars, trucks, multipurpose passenger vehicles, and buses with a gross vehicle weight rating of 10,000 pounds or less, except those vehicles with dual wheels on an axle).
Executive Order 12866 requires Federal agencies to evaluate their existing regulations and programs and measure their effectiveness in achieving their objectives. Since the phase-in of TPMS, there has been only one evaluation of TPMS. The TPMS–SS (OMB #2127–0626) was conducted in 2011, as a special study through the infrastructure of the National Automotive Sampling System (NASS), to collect nationally representative data on how effective TPMS was in reducing underinflation in the on-road fleet of passenger vehicles. Analysis of the survey results indicated that direct
The Paperwork Reduction Act, 44 U.S.C. chap. 35, as amended; and 49 CFR 1.95.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of Petition.
Harley-Davidson Motor Company, Inc. (Harley-Davidson) has determined that certain model year (MY) 2009–2014 Harley-Davidson FL Touring family motorcycles do not fully comply with paragraph S6.1.3 of Federal Motor Vehicle Safety Standard (FMVSS) No. 108,
The closing date for comments on the petition is August 6, 2014.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited at the beginning of this notice and be submitted by any of the following methods:
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Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive
Documents submitted to a docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at
The petition, supporting materials, and all comments received before the close of business on the closing date indicated below will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will be published in the
Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule at 49 CFR part 556), Harley-Davidson submitted a petition for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety.
This notice of receipt of Harley-Davidson's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
Affected are approximately 343,680 MY 2009–2014 Harley-Davidson FL Touring family motorcycles manufactured between June 10, 2008 and March 25, 2014.
Harley-Davidson explains that the noncompliance is that the location of the rear reflex reflectors on the subject vehicles are mounted between an average of 0.3” and 0.7” below the required 15” height-above-road surface as required by paragraph S6.1.3 of FMVSS No. 108.
Paragraph S6.1.3.1 of FMVSS No. 108 requires in pertinent part:
S6.1.3.1 Each lamp, reflective device, and item of associated equipment must be securely mounted on a rigid part of the vehicle, other than glazing, that is not designed to be removed except for repair, within the mounting location and height limits as specified in Table I, and in a location where it complies with all applicable photometric requirements, effective projected luminous lens area requirements, and visibility requirements with all obstructions considered.
Harley-Davidson stated its belief that the subject noncompliance is inconsequential to motor vehicle safety for the following reasons:
• Harley-Davidson had a third-party conduct testing on the subject motorcycles and reflex reflectors and they exhibited no reduction in conspicuity as compared to compliant vehicles. The independent company tested five test heights, for a test range of 11”-15” height above-road surface, and all five tests far exceeded the minimum required values at each of the 10 test points specified in Table XVI. Due to the substantial safety margin designed into these reflex reflectors, photometry remained well above the minimums even when mounted a full 4” inches below the minimum mounting height.
• Harley-Davidson believes that the lower mounting height of these reflectors may actually increase conspicuity and motor vehicle safety compared to fully compliant (higher mounted) reflectors.
• Harley-Davidson notes that the United Nations ECE regulations specify a minimum mounting height of 9.84” (240mm). And further notes that in one study of daytime side vehicle conspicuity of motorcycles, NHTSA's researchers concluded that the mounting height of the side reflex reflectors (12 inches vs 15 inches) was an “insignificant” factor for vehicle identification distance.
• Harley-Davidson further states that under FMVSS No. 108, tail lamps and license plate lamps on motorcycles are required to be illuminated whenever the headlamp is activated. And that since all Harley-Davidson models are equipped with automatic headlights on (AHO) functionality, the headlamps and tail lamps are automatically illuminated when the ignition is in the on position, thus providing conspicuity during daylight and darkness while the motorcycle is operating.
Harley-Davidson also made reference to a withdrawal of rulemaking regarding a lower height for reflex reflectors.
Harley-Davidson has additionally informed NHTSA that it has corrected the noncompliance so that all future production motorcycles will comply with FMVSS No. 108.
In summation, Harley-Davidson believes that the described noncompliance of the subject vehicles is inconsequential to motor vehicle safety, and that its petition, to exempt Harley-Davidson from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject motorcycles that Harley-Davidson no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after Harley-Davidson notified them that the subject noncompliance existed.
(49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8).
Notice of open meetings to be held in Washington, DC as follows: (1) Review and edit drafts of 2014 Annual Report to Congress—July 14–15, August 18–19, September 22–23, and October 06–07, 2014.
Notice is hereby given of meetings of the U.S.-China Economic and Security Review Commission.
The Commission is mandated by Congress to investigate, assess, evaluate and report to Congress annually on the U.S.-China economic and security relationship. The mandate specifically charges the Commission to prepare a report to Congress “regarding the national security implications and impact of the bilateral trade and economic relationship between the United States and the People's Republic of China [that] shall include a full analysis, along with conclusions and recommendations for legislative and administrative actions . . .”
Pursuant to this mandate, members of the Commission will meet in Washington, DC on July 14–15, August 18–19, September 22–23, and October 06–07, 2014 to review and edit drafts of the 2014 Annual Report to Congress.
The Commission is subject to the Federal Advisory Committee Act (FACA) with the enactment of the Science, State, Justice, Commerce and Related Agencies Appropriations Act, 2006 that was signed into law on November 22, 2005 (Pub. L. 109–108). In accordance with FACA, the Commission's meeting to make decisions concerning the substance and recommendations of its 2014 Annual Report to Congress are open to the public.
The Commissioners will be considering draft report sections addressing the following topics:
• U.S.-China Economic and Trade Relations, including: U.S.-China Trade and Economic Developments in 2014; U.S.-China Bilateral Trade and Economic Challenges; China's Health Care and Pharmaceutical Industries; and U.S.-China Clean Energy Cooperation.
• Military and Security Issues Involving China, including: China Security Developments in 2014; China's Military Modernization, and China's Internal Security.
• China and the world, including: The Evolving Security Architecture in Asia; China and the Korean Peninsula; Taiwan, and Hong Kong.
All report review-editing sessions will be held in The Hall of the States (North Bldg., 2nd or 3rd Floor), located at 444 North Capitol Street NW., Washington, DC 20001.
Public seating is limited and will be available on a “first-come, first-served” basis.
The entirety of these Commission editorial and drafting meetings will be open to the public. The Commission may recess the public editorial/drafting sessions to address administrative issues in closed session.
The open meetings will also be adjourned around noon for a lunch break. At the beginning of the lunch break, the Chairman will announce what time the Annual Report review and editing session will reconvene.
Reed Eckhold, Congressional Liaison and Director of Communications, U.S.-China Economic and Security Review Commission, 444 North Capitol Street NW., Suite 602, Washington, DC 20001; Phone: (202) 624–1496; Email:
Congress created the U.S.-China Economic and Security Review Commission in 2000 in the National Defense Authorization Act (Pub. L. 106–398), as amended by Division P of the Consolidated Appropriations Resolution, 2003 (Pub. L. 108–7), as amended by Public Law 109–108 (November 22, 2005).
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before September 5, 2014.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632–8924 or FAX (202) 632–8925.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501—3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA'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 respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the Health Services Research and Development Service Scientific Merit Review Board will conduct in-person and teleconference meetings of its seven Health Services Research (HSR) subcommittees on the dates from 8:00 a.m. to approximately 5:00 p.m. (unless otherwise listed) and at the VHA National Conference Center in Arlington, Virginia:
• HSR 1—Health Care and Clinical Management on August 26–27, 2014;
• HSR 2—Behavioral, Social, and Cultural Determinants of Health and Care on August 26–27, 2014;
• HSR 4—Mental and Behavioral Health on August 26–27, 2014;
• HSR 5—Health Care System Organization and Delivery; Research Methods and Models on August 26–27, 2014;
• Nursing Research Initiative (NRI) from 8:00 a.m. to 12:00 p.m. on Thursday, August 28, 2014;
• HSR 3—Healthcare Informatics on Thursday, August 28, 2014;
• HSR 6—Post-acute and Long-term Care on Thursday, August 28, 2014; and
• HSR 7—Aging and Diminished Capacity in the Context of Aging on Thursday, August 28, 2014.
The purpose of the Board is to review health services research and development applications involving the measurement and evaluation of health care services, the testing of new methods of health care delivery and management, and nursing research. Applications are reviewed for scientific and technical merit, mission relevance, and the protection of human and animal subjects. Recommendations regarding funding are submitted to the Chief Research and Development Officer.
Each subcommittee meeting of the Board will be open to the public the first day for approximately one half-hour at the start of the meeting on August 26–27 (HSR 1, 2, 4, and 5), and on August 28 (NRI and HSR 3, 6, and 7), to cover administrative matters and to discuss the general status of the program. Members of the public who wish to attend the open portion of the subcommittee meetings may dial 1–800–767–1750, participant code 10443.
The remaining portion of each subcommittee meeting will be closed for the discussion, examination, reference to, and oral review of the intramural research proposals and critiques. During the closed portion of each subcommittee meeting, discussion and recommendations will include qualifications of the personnel conducting the studies (the disclosure of which would constitute a clearly unwarranted invasion of personal privacy), as well as research information (the premature disclosure of which would likely compromise significantly the implementation of proposed agency action regarding such research projects). As provided by subsection 10(d) of Public Law 92–463, as amended by Public Law 94–409, closing the meeting is in accordance with 5 U.S.C. 552b(c)(6) and (9)(B).
No oral or written comments will be accepted from the public for either portion of the meetings. Those who plan to participate during the open portion of a subcommittee meeting should contact John Midolo, Designated Federal Officer, Scientific Merit Review Board, Department of Veterans Affairs, Health Services Research and Development Service (10P9H), 810 Vermont Avenue NW., Washington, DC 20420, or email at
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the subcommittees of the Rehabilitation Research and Development Service Scientific Merit Review Board will meet from 8 a.m. to 5 p.m. on the dates indicated below:
The purpose of the Board is to review rehabilitation research and development applications and advise the Director, Rehabilitation Research and Development Service, and the Chief Research and Development Officer on the scientific and technical merit, the mission relevance, and the protection of human and animal subjects.
The subcommittee meetings will be open to the public for approximately one-half hour at the start of each meeting to cover administrative matters and to discuss the general status of the program. Members of the public who wish to attend the open portion of the teleconference sessions may dial 1–800–767–1750, participant code 69510. The remaining portion of each subcommittee meeting will be closed to the public for the discussion, examination, reference to, and oral review of the research applications and critiques. During the closed portion of each subcommittee meeting, discussion and recommendations will include qualifications of the personnel conducting the studies (the disclosure of which would constitute a clearly unwarranted invasion of personal privacy), as well as research information (the premature disclosure of which would likely compromise significantly the implementation of proposed agency action regarding such research projects). As provided by subsection 10(d) of Public Law 92–463, as amended by Public Law 94–409, closing the meeting is in accordance with 5 U.S.C. 552b(c)(6) and (9)(B).
No oral or written comments will be accepted from the public for either portion of the meetings. Those who plan to attend the open portion of a subcommittee meeting should contact Tiffany Asqueri, Designated Federal Officer, Rehabilitation Research and Development Service, at Department of Veterans Affairs (10P9R), 810 Vermont Avenue NW., Washington, DC 20420, or email
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule.
This proposed rule would update the Home Health Prospective Payment System (HH PPS) rates, including the national, standardized 60-day episode payment rates, the national per-visit rates, and the non-routine medical supply (NRS) conversion factor under the Medicare prospective payment system for home health agencies (HHAs), effective January 1, 2015. As required by the Affordable Care Act, this rule implements the second year of the four-year phase-in of the rebasing adjustments to the HH PPS payment rates. This rule provides information on our efforts to monitor the potential impacts of the rebasing adjustments and the Affordable Care Act mandated face-to-face encounter requirement. This rule also proposes: Changes to simplify the face-to-face encounter regulatory requirements; changes to the HH PPS case-mix weights; changes to the home health quality reporting program requirements; changes to simplify the therapy reassessment timeframes; a revision to the Speech-Language Pathology (SLP) personnel qualifications; minor technical regulations text changes; and limitations on the reviewability of the civil monetary penalty provisions. Finally, this proposed rule also discusses Medicare coverage of insulin injections under the HH PPS, the delay in the implementation of ICD–10–CM, and solicits comments on a HH value-based purchasing (HH VBP) model.
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on September 2, 2014.
In commenting, please refer to file code CMS–1611–P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
4.
a. For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445–G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201
(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
b. For delivery in Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244–1850.
If you intend to deliver your comments to the Baltimore address, please call (410) 786–7195 in advance to schedule your arrival with one of our staff members.
Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
For information on viewing public comments, see the beginning of the
Hillary Loeffler, (410) 786–0456, for general information about the HH PPS.
Joan Proctor, (410) 786–0949, for information about the HH PPS Grouper, ICD–9–CM coding, and ICD–10–CM Conversion.
Kristine Chu, (410) 786–8953, for information about rebasing and the HH PPS case-mix weights.
Hudson Osgood, (410) 786–7897, for information about the HH market basket.
Caroline Gallaher, (410) 786–8705, for information about the HH quality reporting program.
Lori Teichman, (410) 786–6684, for information about HHCAHPS.
Peggye Wilkerson, (410) 786–4857, for information about survey and enforcement requirements for HHAs.
Robert Flemming, (410) 786–4830, for information about the HH VBP model.
Danielle Shearer, (410) 786–6617, for information about SLP personnel qualifications.
Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. EST. To schedule an appointment to view public comments, phone 1–800–743–3951.
In addition, because of the many terms to which we refer by abbreviation in this proposed rule, we are listing these abbreviations and their corresponding terms in alphabetical order below:
This proposed rule would update the payment rates for HHAs for calendar year (CY) 2015, as required under section 1895(b) of the Social Security Act (the Act). This would reflect the second year of the four-year phase-in of the rebasing adjustments to the national, standardized 60-day episode payment rate, the national per-visit rates, and the NRS conversion factor finalized in the CY 2014 HH PPS final rule (78 FR 72256), required under section 3131(a) of the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111–148), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111–152) (collectively referred to as the “Affordable Care Act”). Updates to payment rates under the HH PPS would also include a proposal to change the home health wage index to incorporate the new Office of Management and Budget (OMB) core-based statistical area (CBSA) definitions and updates to the payment rates by the home health payment update percentage, which would reflect the productivity adjustment mandated by 3401(e) of the Affordable Care Act.
This proposed rule also discusses: Our efforts to monitor the potential
As required by section 3131(a) of the Affordable Care Act and finalized in the CY 2014 HH final rule, “Medicare and Medicaid Programs; Home Health Prospective Payment System Rate Update for CY 2014, Home Health Quality Reporting Requirements, and Cost Allocation of Home Health Survey Expenses” (78 FR 77256, December 2, 2013), we are implementing the second year of the four-year phase-in of the rebasing adjustments to the national, standardized 60-day episode payment amount, the national per-visit rates and the NRS conversion factor in section III.D.4. The rebasing adjustments for CY 2015 would reduce the national, standardized 60-day episode payment amount by $80.95, increase the national per-visit payment amounts by 3.5 percent of the national per-visit payment amounts in CY 2010 with the increases ranging from $6.34 for medical social services to $1.79 for home health aide services as described in section III.A, and reduce the NRS conversion factor by 2.82 percent.
This proposed rule also discusses our efforts to monitor the potential impacts of the rebasing adjustments and the Affordable Care Act mandated face-to-face encounter requirement in section III.A and, in section III.B. We would propose changes to the face-to-face encounter narrative requirement. In addition, we are proposing that associated physician claims for certification/re-certification of eligibility (patient not present) not be eligible to be paid when a patient does not meet home health eligibility criteria. We would also clarify in sub-regulatory guidance when the face-to-face encounter requirement would be applicable. In section III.C, we are proposing to recalibrate the HH PPS case-mix weights, using the most current cost and utilization data available, in a budget neutral manner. In section III.D.1, we propose to update the payment rates under the HH PPS by the home health payment update percentage of 2.2 percent (using the 2010-based Home Health Agency (HHA) market basket update of 2.6 percent, minus a 0.4 percentage point reduction for productivity as required by 1895(b)(3)(B)(vi)(I) of the Act. In section III.D.3, we propose to update the home health wage index using a 50/50 blend of the existing core-based statistical area (CBSA) designations and the new CBSA designations outlined in a February 28, 2013, Office of Management and Budget (OMB) bulletin, respectively. In section III.E, we propose no changes to the fixed-dollar loss (FDL) and loss-sharing ratios used in calculating high-cost outlier payments under the HH PPS.
This proposed rule also proposes changes to the home health quality reporting program in section III.D.2, including the establishment of a minimum threshold for submission of OASIS assessments for purposes of quality reporting compliance, the establishment of a policy for the adoption of changes to measures that occur in-between rulemaking cycles as a result of the NQF process, and submission dates for the HHCAHPS Survey moving forward through CY 2017. In section III.F, we discuss recent analysis of home health claims identified with skilled nursing visits likely done for the sole purpose of insulin injection assistance, and the lack of any secondary diagnoses on the home health claim to support that the patient was physically or mentally unable to self-inject. We discuss, in section III.G, the delay in the implementation of ICD–10–CM as a result of section 212 of PAMA. In section III.H we seek to simplify the therapy reassessment regulations by proposing that therapy reassessments are to occur every 14 calendar days rather than before the 14th and 20th visits and once every 30 calendar days. Finally, in section III.I, we plan to discuss and solicit comments on an HH VBP model; in section III.J, we propose to revise the personnel qualifications for SLP; in section III.K we are proposing minor technical regulations text changes; and in section III.L we are proposing to place limitations on the reviewability of the civil monetary penalty that is imposed on a HHA for noncompliance with federal participation requirements.
The Balanced Budget Act of 1997 (BBA) (Pub. L. 105–33, enacted August 5, 1997), significantly changed the way Medicare pays for Medicare HH services. Section 4603 of the BBA mandated the development of the HH PPS. Until the implementation of the HH PPS on October 1, 2000, HHAs received payment under a retrospective reimbursement system.
Section 4603(a) of the BBA mandated the development of a HH PPS for all Medicare-covered HH services provided under a plan of care (POC) that were paid on a reasonable cost basis by adding section 1895 of the Social Security Act (the Act), entitled “Prospective Payment For Home Health Services.” Section 1895(b)(1) of the Act requires the Secretary to establish a HH
Section 1895(b)(3)(A) of the Act requires the following: (1) The computation of a standard prospective payment amount include all costs for HH services covered and paid for on a reasonable cost basis and that such amounts be initially based on the most recent audited cost report data available to the Secretary; and (2) the standardized prospective payment amount be adjusted to account for the effects of case-mix and wage levels among HHAs.
Section 1895(b)(3)(B) of the Act addresses the annual update to the standard prospective payment amounts by the HH applicable percentage increase. Section 1895(b)(4) of the Act governs the payment computation. Sections 1895(b)(4)(A)(i) and (b)(4)(A)(ii) of the Act require the standard prospective payment amount to be adjusted for case-mix and geographic differences in wage levels. Section 1895(b)(4)(B) of the Act requires the establishment of an appropriate case-mix change adjustment factor for significant variation in costs among different units of services.
Similarly, section 1895(b)(4)(C) of the Act requires the establishment of wage adjustment factors that reflect the relative level of wages, and wage-related costs applicable to HH services furnished in a geographic area compared to the applicable national average level. Under section 1895(b)(4)(C) of the Act, the wage-adjustment factors used by the Secretary may be the factors used under section 1886(d)(3)(E) of the Act.
Section 1895(b)(5) of the Act gives the Secretary the option to make additions or adjustments to the payment amount otherwise paid in the case of outliers due to unusual variations in the type or amount of medically necessary care. Section 3131(b)(2) of the Patient Protection and Affordable Care Act of 2010 (the Affordable Care Act) (Pub. L. 111–148, enacted March 23, 2010) revised section 1895(b)(5) of the Act so that total outlier payments in a given year would not exceed 2.5 percent of total payments projected or estimated. The provision also made permanent a 10 percent agency-level outlier payment cap.
In accordance with the statute, as amended by the BBA, we published a final rule in the July 3, 2000
Section 5201(c) of the Deficit Reduction Act of 2005 (DRA) (Pub. L. 109–171, enacted February 8, 2006) added new section 1895(b)(3)(B)(v) to the Act, requiring HHAs to submit data for purposes of measuring health care quality, and links the quality data submission to the annual applicable percentage increase. This data submission requirement is applicable for CY 2007 and each subsequent year. If an HHA does not submit quality data, the HH market basket percentage increase is reduced by 2 percentage points. In the November 9, 2006
The Affordable Care Act made additional changes to the HH PPS. One of the changes in section 3131 of the Affordable Care Act is the amendment to section 421(a) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108–173, enacted on December 8, 2003) as amended by section 5201(b) of the DRA. The amended section 421(a) of the MMA now requires, for HH services furnished in a rural area (as defined in section 1886(d)(2)(D) of the Act) with respect to episodes and visits ending on or after April 1, 2010, and before January 1, 2016, that the Secretary increase, by 3 percent, the payment amount otherwise made under section 1895 of the Act.
Generally, Medicare makes payment under the HH PPS on the basis of a national standardized 60-day episode payment rate that is adjusted for the applicable case-mix and wage index. The national standardized 60-day episode rate includes the six HH disciplines (skilled nursing, HH aide, physical therapy, speech-language pathology, occupational therapy, and medical social services). Payment for non-routine supplies (NRS) is no longer part of the national standardized 60-day episode rate and is computed by multiplying the relative weight for a particular NRS severity level by the NRS conversion factor (See section II.D.4.e). Payment for durable medical equipment covered under the HH benefit is made outside the HH PPS payment system. To adjust for case-mix, the HH PPS uses a 153-category case-mix classification system to assign patients to a home health resource group (HHRG). The clinical severity level, functional severity level, and service utilization are computed from responses to selected data elements in the OASIS assessment instrument and are used to place the patient in a particular HHRG. Each HHRG has an associated case-mix weight which is used in calculating the payment for an episode.
For episodes with four or fewer visits, Medicare pays national per-visit rates based on the discipline(s) providing the services. An episode consisting of four or fewer visits within a 60-day period receives what is referred to as a low-utilization payment adjustment (LUPA). Medicare also adjusts the national standardized 60-day episode payment rate for certain intervening events that are subject to a partial episode payment adjustment (PEP adjustment). For certain cases that exceed a specific cost threshold, an outlier adjustment may also be available.
As required by section 1895(b)(3)(B) of the Act, we have historically updated the HH PPS rates annually in the
To account for the changes in case-mix that were not related to an underlying change in patient health status, we implemented a reduction, over 4 years, to the national, standardized 60-day episode payment rates. That reduction was to be 2.75 percent per year for 3 years beginning in CY 2008 and 2.71 percent for the fourth year in CY 2011. In the CY 2011 HH PPS final rule (76 FR 68532), we updated our analyses of case-mix change and finalized a reduction of 3.79 percent, instead of 2.71 percent, for CY 2011 and deferred finalizing a payment reduction for CY 2012 until further study of the case-mix change data and methodology was completed.
In the CY 2012 HH PPS final rule (76 FR 68526), we updated the 60-day national episode rates and the national per-visit rates. In addition, as discussed in the CY 2012 HH PPS final rule (76 FR 68528), our analysis indicated that there was a 22.59 percent increase in overall case-mix from 2000 to 2009 and that only 15.76 percent of that overall observed case-mix percentage increase was due to real case-mix change. As a result of our analysis, we identified a 19.03 percent nominal increase in case-mix. At that time, to fully account for the 19.03 percent nominal case-mix growth identified from 2000 to 2009, we finalized a 3.79 percent payment reduction in CY 2012 and a 1.32 percent payment reduction for CY 2013.
In the CY 2013 HH PPS final rule (77 FR 67078), we implemented a 1.32 percent reduction to the payment rates for CY 2013 to account for nominal case-mix growth from 2000 through 2010. When taking into account the total measure of case-mix change (23.90 percent) and the 15.97 percent of total case-mix change estimated as real from 2000 to 2010, we obtained a final nominal case-mix change measure of 20.08 percent from 2000 to 2010 (0.2390 * (1 − 0.1597) = 0.2008). To fully account for the remainder of the 20.08 percent increase in nominal case-mix beyond that which was accounted for in previous payment reductions, we estimated that the percentage reduction to the national, standardized 60-day episode rates for nominal case-mix change would be 2.18 percent. Although we considered proposing a 2.18 percent reduction to account for the remaining increase in measured nominal case-mix, we finalized the 1.32 percent payment reduction to the national, standardized 60-day episode rates in the CY 2012 HH PPS final rule (76 FR 68532).
Section 3131(a) of the Affordable Care Act requires that, beginning in CY 2014, CMS apply an adjustment to the national, standardized 60-day episode rate and other amounts that reflect factors such as changes in the number of visits in an episode, the mix of services in an episode, the level of intensity of services in an episode, the average cost of providing care per episode, and other relevant factors. Additionally, CMS must phase in any adjustment over a four-year period in equal increments, not to exceed 3.5 percent of the amount (or amounts) as of the date of enactment of the Affordable Care Act, and fully implement the rebasing adjustments by CY 2017. The statute specifies that the maximum rebasing adjustment is to be no more than 3.5 percent per year of the CY 2010 rates. Therefore, in the CY 2014 HH PPS final rule (78 FR 72256) for each year, CY 2014 through CY 2017, we finalized a fixed-dollar reduction to the national, standardized 60-day episode payment rate of $80.95 per year, increases to the national per-visit payment rates per year as reflected in Table 2, and a decrease to the NRS conversion factor of 2.82 percent per year. We also finalized three separate LUPA add-on factors for skilled nursing, physical therapy, and speech-language pathology and removed 170 diagnosis codes from assignment to diagnosis groups in the HH PPS Grouper.
As stated in the CY 2014 HH PPS final rule, we plan to monitor potential impacts of rebasing. Although we do not have enough CY 2014 home health claims data to analyze as part of our effort in monitoring the potential impacts of the rebasing adjustments finalized in the CY 2014 HH PPS final rule (78 FR 72293), we have analyzed 2012 home health agency cost report data to determine whether the average cost per episode was higher using 2012 cost report data compared to the 2011 cost report data used in calculating the rebasing adjustments. Specifically, we re-estimated the cost of a 60-day episode using 2012 cost report and 2012 claims data, rather than using 2011 cost report and 2012 claims data. To determine the 2012 average cost per visit per discipline, we applied the same trimming methodology outlined in the CY 2014 HH PPS proposed rule (78 FR 40284) and weighted the costs per visit from the 2012 cost reports by size,
Using the most current claims data—CY 2013 data (as of December 31, 2013), we re-examined the 2012 visit distribution and re-calculated the 2013 estimated cost per episode using the updated 2013 visit profile. We estimate the 2013 60-day episode cost to be $2,477.01(Table 4).
In the CY 2014 HH PPS final rule (78 FR 72277), using 2011 cost report data, we estimated the 2012 60-day episode cost to be about $2,507.83 ($2,453.71 * 0.9981 * 1.024) and the 2013 60-day episode cost to be $2,565.51 ($2,453.71 * 0.9981 * 1.024 * 1.023). Using 2012 cost report data, the 2012 and 2013 estimated cost per episode ($2,413.82 and $2,477.01, respectively) are lower than the episode costs we estimated using 2011 cost report data for the CY 2014 HH PPS final rule. We note that the proposed CY 2015 national, standardized 60-day episode payment rate is $2,922.76 as described in section III.D.4. of this proposed rule.
In the CY 2014 HH PPS final rule, we stated that our analysis of 2011 cost report data and 2012 claims data indicated a need for a −3.45 percent rebasing adjustment to the national, standardized 60-day episode payment rate each year for four years. However, as specified by statute, the rebasing adjustment is limited to 3.5 percent of the CY 2010 national, standardized 60-day episode payment rate of $2,312.94 (74 FR 58106), or $80.95. We stated that given that a −3.45 percent adjustment for CY 2014 through CY 2017 would result in larger dollar amount reductions than the maximum dollar amount allowed under section 3131(a) of the Affordable Care Act of $80.95, we are limited to implementing a reduction of $80.95 (approximately 2.8 percent) to the national, standardized 60-day episode payment amount each year for CY 2014 through CY 2017. Our latest analysis of 2012 cost report data suggests that an even larger reduction (4.29 percent) than the reduction described in the CY 2014 final rule (3.45 percent) would be needed in order to align payments to costs. We will continue to monitor potential impacts of rebasing.
Effective January 1, 2011, section 6407 the Affordable Care Act requires that as a condition for payment, prior to certifying a patient's eligibility for the Medicare home health benefit, the physician must document that the physician himself or herself, or an allowed nonphysician practitioner (NPP), as described below, had a face-to-face encounter with the patient. The regulations at 424.22(a)(1)(v) currently require that that the face-to-face encounter be related to the primary reason the patient requires home health services and occur no more than 90 days prior to the home health start of care date or within 30 days of the start of the home health care. In addition, as part of the certification of eligibility, the certifying physician must document the date of the encounter and include an explanation (narrative) of why the clinical findings of such encounter support that the patient is homebound, as defined in subsections 1814(a) and 1835(a) of the Act, and in need of either intermittent skilled nursing services or therapy services, as defined in § 409.42(c). The face-to-face encounter requirement was enacted, in part, to discourage physicians certifying patient eligibility for the Medicare home health benefit from relying solely on
In the CY 2011 HH PPS final rule, in which we implemented the face-to-face encounter provision of the Affordable Care Act, some commenters expressed concern that this requirement would diminish access to home health services (75 FR 70427). We examined home health claims data from before implementation of the face-to-face encounter requirement (CY 2010), the year of implementation (CY 2011), and the years following implementation (CY 2012 and CY 2013), to determine whether there were indications of access issues as a result of this requirement. Nationally, utilization held relatively constant between CY 2010 and CY 2011 and decreased slightly in CY 2012 (see Table 5). While Table 5 contains preliminary CY 2013 data, the discussion in this section will focus mostly on CY 2010 through CY 2012 data. We will update our analysis with complete CY 2013 data in the final rule. Between CY 2010 and CY 2011, there was a 0.81 percent decrease in number of episodes, and a 1.37 percent decrease in the number of episodes between CY 2011 and CY 2012. However, there was a 0.51 percent increase in the number of beneficiaries with at least one home health episode between CY 2010 and CY 2011 and between CY 2011 and CY 2012 the number of beneficiaries with at least one episode held relatively constant. Home health users (beneficiaries with at least one home health episode) as a percentage of Part A and/or Part B fee-for-service (FFS) beneficiaries decreased slightly from 9.3 percent in CY 2010 to 9.2 percent in CY 2011to 9.0 percent in CY 2012 and the number of episodes per Part A and/or Part B FFS beneficiaries decreased slightly between CY 2010 and CY 2011, but remained relatively constant 0.18 or 18 episodes per 100 Medicare Part A FFS beneficiaries for CY 2012). We note these observed decreases between CY 2010 and CY 2012, for the most part, are likely the result of increases in FFS enrollment between CY 2010 and CY 2012. Newly eligibly Medicare beneficiaries are typically not of the age where home health services are needed and therefore, without any changes in utilization, we would expect home health users and the number of episodes per Part A and/or B FFS beneficiaries to decrease with an increase in the number of newly enrolled FFS beneficiaries. The number of HHAs providing at least one home health episode increased steadily from CY 2010 through CY 2013 (see Table 5).
Although home health utilization at the national level appears to have held relatively constant between CY 2010 and CY 2011 with a slight decrease in utilization in CY 2012, the decrease in utilization in CY 2012 did not occur in all states. For example, the number of episodes increased between CY 2010 and CY 2011 and again, in some instances, between CY 2011 and CY 2012 in Alabama, California, and Virginia, to name a few. The number of episodes per Part A and/or Part B FFS beneficiaries for these states also remained roughly the same between CY 2010 through CY 2012 (see Table 6).
In general, between CY 2010 and CY 2012 the number of episodes for states with the highest utilization of Medicare home health (as measured by the number of episodes per Part A and/or Part B FFS beneficiary) decreased; however, even with this decrease between CY 2010 and CY 2012, the five states listed in Table 7 continue to be among the states with the highest utilization of Medicare home health nationally (see Figure 1). If we were to exclude the five states listed in Table 7 from the national figures in Table 5, home health users (beneficiaries with at least one home health episode) as a percentage of Part A and/or Part B fee-for-service (FFS) beneficiaries would decrease from to 9.0 percent to 8.1 percent for CY 2012 and the number of episodes per Part A and/or Part B FFS beneficiaries would decrease from 0.18 (or 18 episodes per 100 Medicare Part A and/or Part B FFS beneficiaries) to 0.14 (or 14 episodes per 100 Medicare Part A and/or Part B FFS beneficiaries) for CY 2012. We also note that two of the states with the greatest number of home health episodes per Part A and/or Part B FFS beneficiaries (Table 7 and Figure 1) have areas with suspect billing practices. Moratoria on enrollment of new HHAs, effective January 30, 2014, were put in place for: Miami, FL; Chicago, IL; Fort Lauderdale, FL; Detroit, MI; Dallas, TX; and Houston, TX.
For CY 2011, in addition to the implementation of the Affordable Care Act face-to-face encounter requirement, HHAs were also subject to new therapy reassessment requirements, payments were reduced to account for increases in nominal case-mix, and the Affordable Care Act mandated that the HH PPS payment rates be reduced by 5 percent to pay up to, but no more than 2.5 percent of total HH PPS payments as outlier payments. The estimated net impact to HHAs for CY 2011 was a decrease in total HH PPS payments of 4.78 percent. Therefore, any changes in utilization between CY 2010 and CY 2011 cannot be solely attributable to the implementation of the face-to-face encounter requirement. For CY 2012 we recalibrated the case-mix weights, including the removal of two hypertension codes from scoring points in the HH PPS Grouper and lowering the case-mix weights for high therapy cases estimated net impact to HHAs, and reduced HH PPS rates in CY 2012 by 3.79 percent to account for additional growth in aggregate case-mix that was unrelated to changes in patients' health status. The estimated net impact to HHAs for CY 2012 was a decrease in total HH PPS payments of 2.31 percent. Again, any changes in utilization between CY 2011 and CY 2012 cannot be solely attributable to the implementation of the face-to-face encounter requirement. Given that a decrease in the number of episodes between CY 2010 and CY 2012 occurred in states that have the highest home health utilization (number of episodes per Part A and/or Part B FFS beneficiaries) and not all states experienced declines in episode volume during that time period, we believe that the implementation of the face-to-face encounter requirement could be considered a contributing factor. We will continue to monitor for potential impacts due to the implementation of the face-to-face encounter requirements and other policy changes in the future. Independent effects of any one policy may be difficult to discern in years where multiple policy changes occur in any given year.
As a condition for payment, section 6407 of the Affordable Care Act requires that, prior to certifying a patient's eligibility for the Medicare home health benefit, the physician must document that the physician himself or herself or an allowed nonphysician practitioner (NPP) had a face-to-face encounter with the patient. Specifically, sections 1814(a)(2)(C) and 1835(a)(2)(A) of the Act, as amended by the Affordable Care Act, state that a nurse practitioner or clinical nurse specialist, as those terms are defined in section 1861(aa)(5) of the Act, working in collaboration with the physician in accordance with state law, or a certified nurse-midwife (as defined in section 1861(gg) of the Act) as authorized by state law, or a physician assistant (as defined in section 1861(aa)(5) of the Act) under the supervision of the physician may perform the face-to-face encounter.
The goal of the Affordable Care Act provision was to achieve greater physician accountability in certifying a
The “Requirements for Home Health Services” describes certifying a patient's eligibility for the Medicare home health benefit, and as stated in the “Content of the Certification” under § 424.22 (a)(1), a physician must certify that:
• The individual needs or needed intermittent skilled nursing care, physical therapy, and/or speech-language pathology services as defined in § 409.42(c).
• Home health services are or were required because the individual was confined to the home (as defined in sections 1835(a) and 1814(a) of the Act), except when receiving outpatient services.
• A plan for furnishing the services has been established and is or will be periodically reviewed by a physician who is a doctor of medicine, osteopathy, or podiatric medicine (a doctor of podiatric medicine may perform only plan of treatment functions that are consistent with the functions he or she is authorized to perform under state law).
• Home health services will be or were furnished while the individual is or was under the care of a physician who is a doctor of medicine, osteopathy, or podiatric medicine.
• A face-to-face patient encounter occurred no more than 90 days prior to the home health start of care date or within 30 days of the start of the home health care and was related to the primary reason the patient requires home health services. This also includes documenting the date of the encounter and including an explanation of why the clinical findings of such encounter support that the patient is homebound (as defined in § 1835(a) and § 1814(a) of the Act) and in need of either intermittent skilled nursing services or therapy services as defined in § 409.42(c). The documentation must be clearly titled and dated and the documentation must be signed by the certifying physician.
For instances where the physician orders skilled nursing visits for management and evaluation of the patient's care plan,
When there is a continuous need for home health care after an initial 60-day episode of care, a physician is also required to recertify the patient's eligibility for the home health benefit. In accordance with § 424.22 (b), a recertification is required at least every 60 days, preferably at the time the plan is reviewed, and must be signed and dated by the physician who reviews the plan of care. In recertifying the patient's eligibility for the home health benefit, the recertification must indicate the continuing need for skilled services and estimate how much longer the skilled services will be required. The need for occupational therapy may be the basis for continuing services that were initiated because the individual needed skilled nursing care or physical therapy or speech–language pathology services. Again, for instances where the physician ordering skilled nursing visits for management and evaluation of the patient's care plan, the physician must include a brief narrative that describes the clinical justification of this need and the narrative must be located immediately before the physician's signature. If the narrative exists as an addendum to the recertification form, in addition to the physician's signature on the recertification form, the physician must sign immediately after the narrative in the addendum.
In the CY 2012 HH PPS final rule (76 FR 68597), we stated that, in addition to the certifying physician and allowed NPPs (as defined by the Act and outlined above), the physician who cared for the patient in an acute or post-acute care facility from which the patient was directly admitted to home health care, and who had privileges in such facility, could also perform the face-to-face encounter. In the CY 2013 HH PPS final rule (77 FR 67068) we revised our regulations so that an allowed NPP, collaborating with or under the supervision of the physician who cared for the patient in the acute/post-acute care facility, can communicate the clinical findings that support the patient's needs for skilled care and homebound status to the acute/post-acute care physician. In turn, the acute/post-acute care physician would communicate the clinical findings that support the patient's needs for skilled care and homebound status from the encounter performed by the NPP to the certifying physician to document. Policy always permitted allowed NPPs in the acute/post-acute care setting from which the patient is directly admitted to home health care to perform the face-to-face encounter and communicate directly with the certifying physician the clinical findings from the encounter and how such findings support that the patient is homebound and needs skilled services (77 FR 67106).
Each year, the CMS' Office of Financial Management (OFM), under the Comprehensive Error Rate Testing (CERT) program, calculates the Medicare Fee-for-Service (FFS) improper payment rate. For the FY 2013
The majority of home health improper payments were due to “insufficient documentation” errors. “Insufficient documentation” errors occur when the medical documentation submitted is inadequate to support payment for the services billed or when a specific documentation element that is required (as described above) is missing. Most “insufficient documentation” errors for home health occurred when the narrative portion of the face-to-face encounter documentation did not sufficiently describe how the clinical findings from the encounter supported the beneficiary's homebound status and need for skilled services, as required by § 424.22(a)(1)(v).
The home health industry continues to voice concerns regarding the implementation of the Affordable Care Act face-to-face encounter documentation requirement. The home health industry cites challenges that HHAs face in meeting the face-to-face encounter documentation requirements regarding the required narrative, including a perceived lack of established standards for compliance that can be adequately understood and applied by the physicians and HHAs. In addition, the home health industry conveys frustration with having to rely on the physician to satisfy the face-to-face encounter documentation requirements without incentives to encourage physician compliance. Correspondence received to date has expressed concern over the “extensive and redundant” narrative required by regulation for face-to-face encounter documentation purposes when detailed evidence to support the physician certification of homebound status and medical necessity is available in clinical records. In addition, correspondence stated that the narrative requirement was not explicit in the Affordable Care Act provision requiring a face-to-face encounter as part of the certification of eligibility and that a narrative requirement goes beyond Congressional intent.
We agree that there should be sufficient evidence in the patient's medical record to demonstrate that the patient meets the Medicare home health eligibility criteria. Therefore, in an effort to simplify the face-to-face encounter regulations, reduce burden for HHAs and physicians, and to mitigate instances where physicians and HHAs unintentionally fail to comply with certification requirements, we propose that:
(1) The narrative requirement in regulation at § 424.22(a)(1)(v) would be eliminated. The certifying physician would still be required to certify that a face-to-face patient encounter, which is related to the primary reason the patient requires home health services, occurred no more than 90 days prior to the home health start of care date or within 30 days of the start of the home health care and was performed by a physician or allowed non-physician practitioner as defined in § 424.22(a)(1)(v)(A), and to document the date of the encounter as part of the certification of eligibility.
For instances where the physician is ordering skilled nursing visits for management and evaluation of the patient's care plan, the physician will still be required to include a brief narrative that describes the clinical justification of this need as part of the certification/re-certification of eligibility as outlined in § 424.22(a)(1)(i) and § 424.22(b)(2). This requirement was implemented in the CY 2010 HH PPS final rule (74 FR 58111) and is not changing.
(2) In determining whether the patient is or was eligible to receive services under the Medicare home health benefit at the start of care, we would review only the medical record for the patient from the certifying physician or the acute/post-acute care facility (if the patient in that setting was directly admitted to home health) used to support the physician's certification of patient eligibility, as described in paragraphs (a)(1) and (b) of this section. If the patient's medical record, used by the physician in certifying eligibility, was not sufficient to demonstrate that the patient was eligible to receive services under the Medicare home health benefit, payment would not be rendered for home health services provided.
(3) Physician claims for certification/re-certification of eligibility for home health services (G0180 and G0179, respectively) would not be covered if the HHA claim itself was non-covered because the certification/re-certification of eligibility was not complete or because there was insufficient documentation to support that the patient was eligible for the Medicare home health benefit. However, rather than specify this in our regulations, this proposal would be implemented through future sub-regulatory guidance.
We believe that these proposals are responsive to home health industry concerns regarding the face-to-face encounter requirements articulated above. We invite comment on these proposals and the associated change in the regulation at § 424.22 in section VI.
In the CY 2011 HH PPS final rule (75 FR 70372), in response to a commenter who asked whether the face-to-face encounter is required only for the first episode, we stated that the Congress enacted the face-to-face encounter requirement to apply to the physician's certification, not recertifications. In sub-regulatory guidance (face-to-face encounter Q&As on the CMS Web site at:
Recent inquiries question whether the face-to-face encounter requirement applies to situations where the beneficiary was discharged from home health with goals met/no expectation of return to home health care and readmitted to home health less than 60 days later. In this situation, the second episode would be considered a certification, not a recertification, because the HHA would be required to complete a new start of care OASIS to initiate care. However, for payment
For CY 2012, we removed two hypertension codes from our case-mix system and recalibrated the case-mix weights in a budget neutral manner. When recalibrating the case-mix weights for the CY 2012 HH PPS final rule, we used CY 2005 data in the four-equation model used to determine the clinical and functional points for a home health episode and CY 2007 data in the payment regression model used to determine the case-mix weights. We estimated the coefficients for the variables in the four-equation model using CY 2005 data to maintain the same variables we used for CY 2008 when we implemented the four-equation model, thus minimizing substantial changes. Due to a noticeable shift in the number of therapy visits provided as a result of the 2008 refinements, at the time, we decided to use CY 2007 data in the payment regression. As part of the CY 2012 recalibration, we lowered the high therapy weights and raised the low or no therapy weights to address MedPAC's concerns that the HH PPS overvalues therapy episodes and undervalues non-therapy episodes (March 2011 MedPAC Report to the Congress: Medicare Payment Policy, p. 176). These adjustments better aligned the case-mix weights with episode costs estimated from cost report data. The CY 2012 recalibration, itself, was implemented in a budget neutral manner. However, we note that in the CY 2012 HH PPS final rule, we also finalized a 3.79 percent reduction to payments in CY 2012 and a 1.32 percent reduction for CY 2013 to account for the nominal case-mix growth identified through CY 2009.
For CY 2014, as part of the Affordable Care Act mandated rebasing effort, we reset the case-mix weights, lowering the average case-mix weight to 1.0000. To lower the case-mix weights to 1.0000, each case-mix weight was decreased by the same factor (1.3464), thereby maintaining the same relative values between the weights. This resetting of the case-mix weights was done in a budget neutral manner, inflating the starting point for rebasing by the same factor that was used to decrease the weights. In the CY 2014 HH PPS final rule, we also finalized a reduction ($80.95) to the national, standardized 60-day episode payment amount each year from CY 2014 through CY 2017 to better align payments with costs (78 FR 72293).
For CY 2015, we propose to recalibrate the case-mix weights, adjusting the weights relative to one another using more current data and aligning payments with current utilization data in a budget neutral manner. We are also proposing to recalibrate the case-mix weights in subsequent payment updates based on the methodology finalized in the CY 2012 HH PPS final rule (76 FR 68526) and the 2008 refinements (72 FR 25359–25392), with the proposed minor changes outlined below. We used preliminary CY 2013 home health claims data (as of December 31, 2013) to generate the proposed CY 2015 case-mix weights using the same methodology finalized in the CY 2012 HH PPS final rule, except where noted below. Similar to the CY 2012 recalibration, some exclusion criteria were applied to the CY 2013 home health claims data used to generate the proposed CY 2015 case-mix weights. Specifically, we excluded Request for Anticipated Payment (RAP) claims, claims without a matched OASIS, claims where total minutes equal 0, claims where the payment amount equals 0, claims where paid days equal 0, claims where covered visits equal 0, and claims without a HIPPS code. In addition, the episodes used in the recalibration were normal episodes. PEP, LUPA, outlier, and capped outlier (that is, episodes that are paid as normal episodes, but would have been outliers had the HHA not reached the outlier cap) episodes were dropped from the data file.
Similar to the CY 2012 recalibration, the first step in the proposed CY 2015 recalibration was to re-estimate the four-equation model used to determine the clinical and functional points for an episode. The dependent variable for the CY 2015 recalibration is the same as the CY 2012 recalibration, wage-weighted minutes of care. The wage-weighted minutes of care are determined using the CY 2012 Bureau of Labor Statistics national hourly wage plus fringe rates for the six home health disciplines and the minutes per visit from the claim.
The CY 2012 four-equation model contained the same variables and restrictions as the four-equation model used in the CY 2008 refinements(
The steps used to estimate the four-equation model are similar to the steps used in the CY 2008 refinements. They are as follows:
(1) We estimated a regression model where the dependent variable is wage-
(2) Once the four-equation model is estimated, we drop all grouper variables with a coefficient less than 5 from the model. We re-estimate the model and continue to drop variables and re-estimate until there are no grouper variables with a coefficient of 5 or less.
(3) Taking the final iteration of the model in the previous step, we drop all grouper variables with a p-value greater than 0.10. We then re-estimate the model.
(4) Taking the model in the previous step, we begin to apply restrictions to certain coefficients. Within a grouper variable we first look across the coefficients for leg1 and leg3. We perform an equality test on those coefficients. If the coefficients are not significantly different from one another (using a p-value of 0.05), we set a restriction for that grouper variable such that the coefficients are equal across leg1 and leg3. We run these tests for all grouper variables for leg1 and leg3. We also run these tests for all grouper variables for leg2 and leg4.
(5) Taking in the model from step 4, we drop variables that have a coefficient less than 5 and re-estimate the model a final time. Using preliminary 2013 claims data, there was only 1 grouper variable with a negative coefficient that was dropped from the model.
The results from the final four-equation model are used to determine the clinical and functional points for an episode and place episodes in the different clinical and functional levels used to estimate the payment regression model. We take the coefficients from the four equation model, divide them by 10, and round to the nearest integer to determine the points associated with each variable. The points for each of the grouper variables for each leg of the model are shown in Table 8. The points for the clinical variables are added together to determine an episode's clinical score. The points for the functional variables are added together to determine an episode's functional score.
In updating the four-equation model with 2013 data (the last update to the four-equation model used 2005 data), there were significant changes to the point values for the variables in the four-equation model. These reflect changes in the relationship between the grouper variables and resource use since 2005. The CY 2015 four-equation model resulted in 121 point-giving variables being used in the model (as compared to the 164 variables for the 2012 recalibration). There were 19 variables that were added to the model and 62 variables that were dropped from the
Since there were a number of significant changes to the point values associated with the four-equation model, we are proposing to redefine the clinical and functional thresholds so that they would be reflective of the new points associated with the CY 2015 four-equation model. Specifically, after estimating the points for each of the variables and summing the clinical and functional points for each episode, we looked at the distribution of the clinical score and functional score, breaking the episodes into different steps. The categorizations for the steps are as follows:
• Step 1: First and second episodes, 0–13 therapy visits.
• Step 2.1: First and second episodes, 14–19 therapy visits.
• Step 2.2: Third episodes and beyond, 14–19 therapy visits.
• Step 3: Third episodes and beyond, 0–13 therapy visits.
• Step 4: Episodes with 20+ therapy visits.
Similar to the methodology used in the CY 2008 refinements, we then divide the distribution of the clinical score for episodes within a step such that a third of episodes are classified as low clinical score, a third of episodes are classified as medium clinical score, and a third of episodes are classified as high clinical score. The same approach is then done looking at the functional score. It was not always possible to evenly divide the episodes within each level, by step, into thirds due to many episodes being clustered around one particular score.
For Step 2.1, 60.9% of episodes were in the low functional level (Most with score 3, some with score 0).
For Step 2.2, 70.3% of episodes were in the low functional level (All with score 0).
For Step 3, 52.3% of episodes were in the medium functional level (all with score 9).
For Step 4, 41.6% of episodes were in the medium functional level (almost all with score 3).
Once the thresholds were determined and each episode was assigned a clinical and functional level, the payment regression was estimated with an episode's wage-weighted minutes of care as the dependent variable. Independent variables in the model were indicators for the step of the episode as well for the clinical and functional levels within each step of the episode. Like the four-equation model, the payment regression model is also estimated with robust standard errors that are clustered at the beneficiary level. Table 10 shows the regression coefficients for the variables in the proposed payment regression model. The R-squared value for the payment regression model is 0.4691 (an increase from 0.3769 for the CY 2012 recalibration).
The method used to derive the proposed CY 2015 case-mix weights from the payment regression model coefficients is the same as the method used to derive the CY 2012 case-mix weights. This method is described below.
(1) We used the coefficients from the payment regression model to predict each episode's wage-weighted minutes of care (resource use). We then divided these predicted values by the mean of the dependent variable (that is, the average wage-weighted minutes of care across all episodes used in the payment regression). This division constructs the weight for each episode, which is simply the ratio of the episode's predicted wage-weighted minutes of care divided by the average wage-weighted minutes of care in the sample. Each episode was then aggregated into one of the 153 home health resource groups (HHRGs) and the “raw” weight for each HHRG was calculated as the average of the episode weights within the HHRG.
(2) In the next step of weight revision, the weights associated with 0 to 5 therapy visits were increased by 3.75 percent. Also, the weights associated with 14–15 therapy visits were decreased by 2.5 percent and the weights associated with 20+ therapy visits were decreased by 5 percent. These adjustments were made to discourage inappropriate use of therapy while addressing concerns that non-therapy services are undervalued. These adjustments to the case-mix weights are the same as the ones used in the CY 2012 recalibration (76 FR 68557).
(3) After the adjustments in step (2) were applied to the raw weights, the weights were further adjusted to create an increase in the payment weights for the therapy visit steps between the therapy thresholds. Weights with the same clinical severity level, functional severity level, and early/later episode status were grouped together. Then within those groups, the weights for each therapy step between thresholds were gradually increased. We did this by interpolating between the main thresholds on the model (from 0–5 to 14–15 therapy visits, and from 14–15 to 20+ therapy visits). We used a linear model to implement the interpolation so the payment weight increase for each step between the thresholds (such as the increase between 0–5 therapy visits and 6 therapy visits and the increase between 6 therapy visits and 7–9 therapy visits) was constant. This interpolation is the identical to the process finalized in the CY 2012 final rule (76 FR 68555).
(4) The interpolated weights were then adjusted so that the average case-mix for the weights was equal to 1.
To ensure the changes to the case-mix weights are implemented in a budget neutral manner, we propose to apply a case-mix budget neutrality factor to the CY 2015 national, standardized 60-day episode payment rate (see section III.D.4. of this proposed rule). The case-mix budget neutrality factor is calculated as the ratio of total payments when CY 2015 case-mix weights are applied to CY 2013 utilization (claims) data to total payments when CY 2014 case-mix weights are applied to CY 2013 utilization data. This produces the proposed case-mix budget neutrality factor for CY 2015 of 1.0237. We note that the CY 2013 data used to develop the proposed case-mix weights is preliminary (CY 2013 claims data as of December 31, 2013) and we propose to update the case-mix weights with more complete CY 2013 data (as of June 30, 2014) in the final rule. Therefore, the points associated with each of the grouper variables, the new clinical and functional thresholds, and the CY 2015 case-mix weights may change between the CY 2015 HH PPS proposed and final rules.
Section 1895(b)(3)(B)(iv) of the Act gives CMS the authority to implement payment reductions for nominal case-mix growth (that is, changes in case-mix that are not related to actual changes in patient characteristics over time). Previously, we accounted for nominal case-mix growth from 2000 to 2009 through case-mix reductions implemented from 2008 through 2013 (76 FR 68528–68543). In the CY 2013 HH PPS proposed rule, we stated that we found that 15.97 percent of the total case-mix change was real from 2000 to 2010 (77 FR 41553). In the CY 2014 HH PPS final rule, we used 2012 claims data to rebase payments (78 FR 72277). Since we were resetting the payment amounts with 2012 data, we did not take into account nominal case-mix growth from 2009 through 2012.
For this proposed rule, we examined case-mix growth from CY 2012 to CY 2013 using CY 2012 and preliminary CY 2013 claims data. In applying the 15.97 percent estimate of real case-mix growth to the total estimated case-mix growth from CY 2012 to CY 2013 (2.37 percent), we estimate that a case-mix reduction of 2.00 percent, to account for nominal case-mix growth, would be warranted. We considered adjusting the case-mix budget neutrality factor to take into account the 2.00 percent growth in nominal case-mix, which would result in a case-mix budget neutrality adjustment of 1.0037 rather than 1.0237. However, we are proposing to apply the full 1.0237 case-mix budget neutrality factor to the national, standardized 60-day episode payment rate. We will continue to monitor case-mix growth and may consider whether to propose nominal case-mix reductions in future rulemaking.
Section 1895(b)(3)(B) of the Act, as amended by section 3401(e) of the Affordable Care Act, adds new clause (vi) which states, “After determining the home health market basket percentage increase . . . the Secretary shall reduce such percentage . . . for each of 2011, 2012, and 2013, by 1 percentage point. The application of this clause may result in the home health market basket percentage increase under clause (iii) being less than 0.0 for a year, and may result in payment rates under the system under this subsection for a year being less than such payment rates for the preceding year.” Therefore, as mandated by the Affordable Care Act, for CYs 2011, 2012, and 2013, the HH market basket update was reduced by 1 percentage point.
Section 1895(b)(3)(B) of the Act requires that the standard prospective payment amounts for CY 2015 be increased by a factor equal to the applicable HH market basket update for those HHAs that submit quality data as required by the Secretary. The proposed HH PPS market basket update for CY 2015 is 2.6 percent. This is based on Global Insight Inc.'s first quarter 2014 forecast of the 2010-based HH market basket, with historical data through the fourth quarter of 2013. A detailed description of how we derive the HHA market basket is available in the CY 2013 HH PPS final rule (77 FR 67080–67090).
For CY 2015, section 3401(e) of the Affordable Care Act, requires that, in CY 2015 (and in subsequent calendar years), the market basket percentage under the HHA prospective payment system as described in section 1895(b)(3)(B) of the Act be annually adjusted by changes in economy-wide productivity. The statute defines the productivity adjustment, described in section 1886(b)(3)(B)(xi)(II) of the Act, to be equal to the 10-year moving average of change in annual economy-wide private nonfarm business multifactor productivity (MFP) (as projected by the Secretary for the 10-year period ending with the applicable fiscal year, calendar year, cost reporting period, or other annual period) (the “MFP adjustment”). The Bureau of Labor Statistics (BLS) is the agency that publishes the official measure of private nonfarm business MFP. Please see
The projection of MFP is currently produced by IHS Global Insight, Inc.'s (IGI), an economic forecasting firm. To generate a forecast of MFP, IGI replicated the MFP measure calculated by the BLS using a series of proxy variables derived from IGI's U.S. macroeconomic models. These models take into account a very broad range of factors that influence the total U.S. economy. IGI forecasts the underlying proxy components such as gross domestic product (GDP), capital, and labor inputs required to estimate MFP and then combines those projections according to the BLS methodology. In Table 12, we identify each of the major
IGI found that the historical growth rates of the BLS components used to calculate MFP and the IGI components identified are consistent across all series and therefore suitable proxies for calculating MFP. For more information regarding the BLS method for estimating productivity, please see the following link:
During the development of this proposed rule, the BLS published a historical time series of private nonfarm business MFP for 1987 through 2012. Using this historical MFP series and the IGI forecasted series, IGI has developed a forecast of MFP for 2013 through 2024, as described below.
To create a forecast of the BLS' MFP index, the forecasted annual growth rates of the “non-housing, nongovernment, non-farm, real GDP,” “hours of all persons in private nonfarm establishments adjusted for labor composition,” and “real effective capital stock” series (ranging from 2013 to 2024) are used to “grow” the levels of the “real value-added output,” “private non-farm business sector labor input,” and “aggregate capital input” series published by the BLS. Projections of the “hours of all persons” measure are calculated using the difference between the projected growth rates of real output per hour and real GDP. This difference is then adjusted to account for changes in labor composition in the forecast interval. Using these three key concepts, MFP is derived by subtracting the contribution of labor and capital inputs from output growth. However, to estimate MFP, we need to understand the relative contributions of labor and capital to total output growth. Therefore, two additional measures are needed to operationalize the estimation of the IGI MFP projection: Labor compensation and capital income. The sum of labor compensation and capital income represents total income. The BLS calculates labor compensation and capital income (in current dollar terms) to derive the nominal values of labor and capital inputs. IGI uses the “nongovernment total compensation” and “flow of capital services from the total private non-residential capital stock” series as proxies for the BLS' income measures. These two proxy measures for income are divided by total income to obtain the shares of labor compensation and capital income to total income. To estimate labor's contribution and capital's contribution to the growth in total output, the growth rates of the proxy variables for labor and capital inputs are multiplied by their respective shares of total income. These contributions of labor and capital to output growth is subtracted from total output growth to calculate the “change in the growth rates of multifactor productivity:”
The change in the growth rates (also referred to as the compound growth rates) of the IGI MFP are multiplied by 100 to calculate the percent change in growth rates (the percent change in growth rates are published by the BLS for its historical MFP measure). Finally, the growth rates of the IGI MFP are converted to index levels to be consistent with the BLS' methodology. For benchmarking purposes, the historical growth rates of IGI's proxy variables were used to estimate a historical measure of MFP, which was compared to the historical MFP estimate published by the BLS. The comparison revealed that the growth rates of the components were consistent across all series, and therefore validated the use of the proxy variables in generating the IGI MFP projections. The resulting MFP index was then interpolated to a quarterly frequency using the Bassie method for temporal disaggregation. The Bassie technique utilizes an indicator (pattern) series for its calculations. IGI uses the index of output per hour (published by the BLS) as an indicator when interpolating the MFP index.
As described previously, the proposed CY 2015 HHA market basket percentage update would be 2.6 percent. Section 3401(e) of the Affordable Care Act amends section 1895(b)(3)(B) of the Act by adding a new clause, which requires that after establishing the percentage update for calendar year 2015 (and each subsequent year), “the Secretary shall reduce such percentage by the productivity adjustment described in section 1886(b)(3)(B)(xi)(II)” (which we refer to as the multifactor productivity adjustment or MFP adjustment).
To calculate the MFP-adjusted update for the HHA market basket, we propose that the MFP percentage adjustment be subtracted from the CY 2015 market basket update calculated using the CY 2010-based HHA market basket. We propose that the end of the 10-year moving average of changes in the MFP should coincide with the end of the appropriate CY update period. Since the market basket update is reduced by the MFP adjustment to determine the annual update for the HH PPS, we believe it is appropriate for the data and time period associated with both components of the calculation (the market basket and the productivity adjustment) to end on December 15, 2015, so that changes in market conditions are aligned.
Therefore, for the CY 2015 update, we propose that the MFP adjustment be calculated as the 10-year moving average of changes in MFP for the period ending December 31, 2015. We propose to round the final annual adjustment to the one-tenth of one percentage point level up or down as applicable according to conventional rounding rules (that is, if the number we are rounding is followed by 5, 6, 7, 8, or 9, we will round the number up; if the number we are rounding is followed by 1, 2, 3, or 4, we will round the number down).
The market basket percentage we are proposing for CY 2015 for the HHA market basket is based on the 1st quarter 2014 forecast of the CY 2010-based HHA market basket update, which is estimated to be 2.6 percent. This market basket percentage would then be reduced by the MFP adjustment (the 10-year moving average of MFP for the period ending December 31, 2015) of 0.4 percent, which is calculated as described above and based on IGI's 1st quarter 2014 forecast. The resulting MFP-adjusted HHA market basket update is equal to 2.2 percent, or 2.6 percent less 0.4 percent. We propose that if more recent data are subsequently available (for example, a more recent estimate of the market basket and MFP adjustment), we would use such data, if appropriate, to determine the CY 2015 market basket update and MFP adjustment in the CY 2015 HHA PPS final rule.
Section 1895(b)(3)(B) of the Act requires that the home health market basket percentage increase be decreased by 2 percentage points for those HHAs that do not submit quality data as required by the Secretary. For HHAs that do not submit the required quality data for CY 2015, the home health market basket update will be 0.2 percent (2.2 percent minus 2 percent). As noted previously, the home health market basket was rebased and revised in CY 2013. A detailed description of how we derive the HHA market basket is available in the CY 2013 HH PPS final rule (77 FR 67080, 67090).
The successful development of the Home Health Quality Reporting Program (HH QRP) that promotes the delivery of high quality healthcare services is our paramount concern. We seek to adopt measures for the HH QRP that promote more efficient and safer care. Our measure selection activities for the HH QRP takes into consideration input we receive from the Measure Applications Partnership (MAP), convened by the National Quality Forum (NQF) as part of a pre-rulemaking process that we have established and are required to follow under section 1890A of the Act. The MAP is a public-private partnership comprised of multi-stakeholder groups convened for the primary purpose of providing input to CMS on the selection of certain categories of quality and efficiency measures, as required by section 1890A(a)(3) of the Act. By February 1st of each year, the NQF must provide that input to CMS.
More details about the pre-rulemaking process can be found at
MAP reports to view and download are available at
Our measure development and selection activities for the HH QRP take into account national priorities, such as those established by the National Priorities Partnership (
To the extent practicable, we have sought to adopt measures that have been endorsed by the national consensus organization under contract to endorse standardized healthcare quality measures pursuant to section 1890 of the Act, recommended by multi-stakeholder organizations, and developed with the input of patients, providers, purchasers/payers, and other stakeholders. At this time, the National Quality Forum (NQF) is the national consensus organization that is under contract with HHS to provide review and endorsement of quality measures.
Section 1895(b)(3)(B)(v)(II) of the Act states that “each home health agency shall submit to the Secretary such data that the Secretary determines are appropriate for the measurement of health care quality. Such data shall be submitted in a form and manner, and at a time, specified by the Secretary for purposes of this clause.”
In addition, section 1895(b)(3)(B)(v)(I) of the Act states that “for 2007 and each subsequent year, in the case of a home health agency that does not submit data to the Secretary in accordance with subclause (II) with respect to such a year, the home health market basket percentage increase applicable under such clause for such year shall be reduced by 2 percentage points.” This requirement has been codified in regulations at § 484.225(i). HHAs that meet the quality data reporting requirements are eligible for the full home health (HH) market basket percentage increase. HHAs that do not meet the reporting requirements are subject to a 2 percentage point reduction to the HH market basket increase.
Section 1895(b)(3)(B)(v)(III) of the Act further states that “[t]he Secretary shall establish procedures for making data submitted under subclause (II) available to the public. Such procedures shall ensure that a home health agency has the opportunity to review the data that is to be made public with respect to the agency prior to such data being made public.”
Medicare home health regulations, as codified at § 484.250(a), require HHAs to submit OASIS assessments and Home Health Care Consumer Assessment of Healthcare Providers and Systems Survey (HH CAHPS®) data to meet the quality reporting requirements of section 1895(b)(3)(B)(v) of the Act. We provide quality measure data to HHAs via the Certification and Survey Provider Enhanced Reports (CASPER reports) which are available on the CMS Health Care Quality Improvement System (QIES). A subset of the HH quality measures has been publicly reported on the Home Health Compare (HH Compare) Web site since 2003. The CY 2012 HH PPS final rule (76 FR 68576), identifies the current HH QRP measures. The selected measures that are made available to the public can be viewed on the HH Compare Web site located at
In the CY 2014 HH PPS final rule, we finalized a proposal to add two claims-based measures to the HH QRP, and also stated that we would begin reporting the data from these measures to HHAs beginning in CY 2014. These claims based measures are: (1) Rehospitalization during the first 30 days of HH; and (2) Emergency Department Use without Hospital Readmission during the first 30 days of HH. Also, in this rule, we finalized our proposal to reduce the number of process measures reported on the CASPER reports by eliminating the stratification by episode length for 9 process measures. While no timeframe was given for the removal of these measures, we have scheduled them for removal from the CASPER folders in October 2014. In addition, five short stay measures which had previously been reported on Home Health Compare were recently removed from public reporting and replaced with non-stratified “all episodes of care” versions of these measures.
The Home Health conditions of participation (CoPs) at § 484.55(d) require that the comprehensive assessment must be updated and revised (including the administration of the OASIS) no less frequently than: (1) The last 5 days of every 60 days beginning with the start of care date, unless there is a beneficiary elected transfer, significant change in condition, or discharge and return to the same HHA during the 60-day episode; (2) within 48 hours of the patient's return to the home from a hospital admission of 24 hours
It is important to note that to calculate quality measures from OASIS data, there must be a complete quality episode, which requires both a Start of Care (initial assessment) or Resumption of Care OASIS assessment and a Transfer or Discharge OASIS assessment. Failure to submit sufficient OASIS assessments to allow calculation of quality measures, including transfer and discharge assessments, is failure to comply with the CoPs.
HHAs do not need to submit OASIS data for those patients who are excluded from the OASIS submission requirements. As described in the December 23, 2005 Medicare and Medicaid Programs: Reporting Outcome and Assessment Information Set Data as Part of the Conditions of Participation for Home Health Agencies final rule (70 FR 76202), we define the exclusion as those patients:
• Receiving only non-skilled services;
• For whom neither Medicare nor Medicaid is paying for HH care (patients receiving care under a Medicare or Medicaid Managed Care Plan are not excluded from the OASIS reporting requirement);
• Receiving pre- or post-partum services; or
• Under the age of 18 years.
As set forth in the CY 2008 HH PPS final rule (72 FR 49863), HHAs that become Medicare-certified on or after May 31 of the preceding year are not subject to the OASIS quality reporting requirement nor any payment penalty for quality reporting purposes for the following year. For example, HHAs certified on or after May 31, 2013 are not subject to the 2 percentage point reduction to their market basket update for CY 2014. These exclusions only affect quality reporting requirements and do not affect the HHA's reporting responsibilities as announced in the December 23, 2005 final rule, “Medicare and Medicaid Programs; Reporting Outcome and Assessment Information Set Data as Part of the Conditions of Participation for Home Health Agencies” (70 FR 76202).
In the CY 2014 Home Health Final rule (78 FR 72297), we finalized a proposal to consider OASIS assessments submitted by HHAs to CMS in compliance with HH CoPs and Conditions for Payment for episodes beginning on or after July 1, 2012, and before July 1, 2013 as fulfilling one portion of the quality reporting requirement for CY 2014. In addition, we finalized a proposal to continue this pattern for each subsequent year beyond CY 2014, considering OASIS assessments submitted for episodes beginning on July 1st of the calendar year 2 years prior to the calendar year of the Annual Payment Update (APU) effective date and ending June 30th of the calendar year 1 year prior to the calendar year of the APU effective date as fulfilling the OASIS portion of the HH quality reporting requirement.
Section 1895(b)(3)(B)(v)(I) of the Act states that “for 2007 and each subsequent year, in the case of a home health agency that does not submit data to the Secretary in accordance with subclause (II) with respect to such a year, the home health market basket percentage increase applicable under such clause for such year shall be reduced by 2 percentage points.” This “pay-for-reporting” requirement was implemented on January 1, 2007. However, to date, the quantity of OASIS assessments each HHA must submit to meet this requirement has never been proposed and finalized through rulemaking or through the sub-regulatory process. We believe that this matter should be addressed for several reasons.
We believe that defining a more explicit performance requirement for the submission of OASIS data by HHAs would better meet section 5201(c)(2) of the Deficit Reduction Act of 2005 (DRA), which requires that “each home health agency shall submit to the Secretary such data that the Secretary determines are appropriate for the measurement of health care quality. Such data shall be submitted in a form and manner, and at a time, specified by the Secretary for purposes of this clause.”
In February 2012, the Department of Health & Human Services Office of the Inspector General (OIG) performed a study to: (1) Determine the extent to which home health agencies (HHAs) meet Federal reporting requirements for the Outcome and Assessment Information Set (OASIS) data; (2) to determine the extent to which states meet federal reporting requirements for OASIS data; and (3) to determine the extent to which the Centers for Medicare & Medicaid Services (CMS) oversees the accuracy and completeness of OASIS data submitted by HHAs. In a report entitled, “Limited Oversight of Home Health Agency OASIS Data,”
In response to these requirements and the OIG report, we directed one of our contractors (the University of Colorado, Anschutz Medical Campus) to design a pay-for-reporting performance system model that could accurately measure the level of an HHA's submission of OASIS quality data. After review and analysis of several years of OASIS data, the researchers at the University of Colorado were able to develop a performance system which is driven by the principle that each HHA would be expected to submit a minimum set of two “matching” assessments for each patient admitted to their agency. These matching assessments together create what is considered a “quality episode of care”, which would ideally consist of a Start of Care (SOC) or Resumption of Care (ROC) assessment and a matching End of Care (EOC) assessment. However, the researchers at the University of Colorado determined that there are several scenarios that could meet this “matching assessment requirement” of the new pay-for-reporting performance requirement. These scenarios have been defined as “quality assessments”, which are defined as assessments that create a quality episode of care during the reporting period or could create a quality episode if the reporting period were expanded to an earlier reporting period or into the next reporting period.
Seven types of assessments submitted by an HHA fit this definition of a quality assessment. These are:
• A Start of Care (SOC) or Resumption of Care (ROC) assessment that has a matching End of Care (EOC) assessment. EOC assessments are assessments that are conducted at transfer to an inpatient facility (with or without discharge), death, or discharge from home health care. These two assessments (the SOC or ROC assessment and the EOC assessment) create a regular quality episode of care and both count as quality assessments.
• An SOC/ROC assessment that could begin an episode of care, but occurs in the last 60 days of the performance
An EOC assessment that could end an episode of care that began in the previous reporting period, (that is, an EOC that occurs in the first 60 days of the performance period.) This is labeled as an “Early EOC” quality assessment.
• An SOC/ROC assessment that is followed by one or more follow-up assessments, the last of which occurs in the last 60 days of the performance period. This is labeled as an “SOC/ROC Pseudo Episode” quality assessment.
• An EOC assessment is preceded by one or more Follow-up assessments, the last of which occurs in the first 60 days of the performance period. This is labeled an “EOC Pseudo Episode” quality assessment.
• An SOC/ROC assessment that is part of a known one-visit episode. This is labeled as a “One-visit episode” quality assessment.
• SOC, ROC, and EOC assessments that do not meet any of these definitions are labeled as “Non-Quality” assessments.
• Follow-up assessments (that is, where the M0100 Reason for Assessment = `04' or `05') are considered “Neutral” assessments and do not count toward or against the pay for reporting performance requirement.
Compliance with this performance requirement can be measured through the use of an uncomplicated mathematical formula. This Pay for Reporting performance requirement metric has been titled as the “Quality Assessments Only” (QAO) formula because only those OASIS assessments that contribute, or could contribute, to creating a quality episode of care are included in the computation. The formula based on this definition is as follows:
Our ultimate goal is to require all HHAs to achieve a Pay-for-Reporting performance requirement compliance rate of 90 percent or more, as calculated using the QAO metric illustrated above. However, we propose to implement this performance requirement in an incremental fashion over a 3 year period. We propose to require each HHA to reach a compliance rate of 70 percent or better during the first reporting period
To summarize, we propose to implement the pay-for- reporting performance requirement beginning with all episodes of care that occur on or after July 1, 2015, in accordance with the following schedule:
• For episodes beginning on or after July 1st, 2015 and before June 30th, 2016, HHAs must score at least 70 percent on the QAO metric of pay-for-reporting performance or be subject to a 2 percentage point reduction to their market basket update for CY 2017.
• For episodes beginning on or after July 1st, 2016 and before June 30th, 2017, HHAs must score at least 80 percent on the QAO metric of pay-for-reporting performance or be subject to a 2 percentage point reduction to their market basket update for CY 2018.
• For episodes beginning on or after July 1st, 2017, and thereafter, and before June 30th, 2018 and thereafter, HHAs must score at least 90 percent on the QAO metric of pay-for-reporting performance or be subject to a 2 percentage point reduction to their market basket update for CY 2019, and each subsequent year thereafter.
We solicit public comment on our proposal to implement the Pay-for-Reporting performance requirement, as described previously, for the Home Health Quality Reporting Program.
Section 1895(b)(3)(B)(v)(II) of the Act generally requires the Secretary to adopt measures that have been endorsed by the entity with a contract under section 1890(a) of the Act. This contract is currently held by the NQF. The NQF is a voluntary consensus standard-setting organization with a diverse representation of consumer, purchaser, provider, academic, clinical, and other health care stakeholder organizations. The NQF was established to standardize health care quality measurement and reporting through its consensus development process.
The NQF undertakes to: (1) Review new quality measures and national consensus standards for measuring and publicly reporting on performance; (2) provide for annual measure maintenance updates to be submitted by the measure steward for endorsed quality measures; (3) provide for measure maintenance endorsement on a 3-year cycle; (4) conduct a required follow-up review of measures with time limited endorsement for consideration of full endorsement; and (5) conduct ad hoc reviews of endorsed quality measures, practices, consensus standards, or events when there is adequate justification for a review. In the normal course of measure maintenance, the NQF solicits information from measure stewards for annual reviews to review measures for continued endorsement in a specific 3-year cycle. In this measure maintenance process, the measure steward is responsible for updating and maintaining the currency and relevance of the measure and for confirming existing specifications to the NQF on an annual basis. As part of the ad hoc review process, the ad hoc review requester and the measure steward are responsible for submitting evidence for review by a NQF Technical Expert panel which, in turn, provides input to the Consensus Standards Approval Committee which then makes a decision on endorsement status and/or specification changes for the measure, practice, or event.
Through the NQF's measure maintenance process, the NQF endorsed measures are sometimes updated to incorporate changes that we believe do not substantially change the nature of the measure. With respect to what constitutes a substantive versus a non-substantive change, we expect to make this determination on a measure-by-measure basis. Examples of such non-substantive changes might include updated diagnosis or procedure codes, medication updates for categories of
We are proposing that, if the NQF updates an endorsed measure that we have adopted for the HH QRP in a manner that we consider to not substantially change the nature of the measure, we would use a sub-regulatory process to incorporate those updates to the measure specifications that apply to the program. Specifically, we would revise the information that is posted on the CMS Home Health Quality Initiatives Web site at
We would continue to use the rulemaking process to adopt changes to measures that we consider to substantially change the nature of the measure. Examples of changes that we might consider to be substantive would be those in which the changes are so significant that the measure is no longer the same measure, or when a standard of performance assessed by a measure becomes more stringent, such as changes in acceptable timing of medication, procedure/process, test administration, or expansion of the measure to a new setting. We believe that our proposal adequately balances our need to incorporate NQF updates to NQF endorsed measures used in the HH QRP in the most expeditious manner possible, while preserving the public's ability to comment on updates to measures that so fundamentally change an endorsed measure that it is no longer the same measure that we originally adopted.
We note that a similar policy was adopted for the Hospital IQR Program, the PPS-Exempt Cancer Hospital (PCH) Quality Reporting Program, the Long-Term Care Hospital Quality Reporting (LTCHQR) Program, the Inpatient Rehabilitation Facility Quality Reporting Program (IRF QRP) and the Inpatient Psychiatric Facility (IPF) Quality Reporting Program.
We invite public comment on our proposal to adopt a policy in which NQF changes to a measure that are non-substantive in nature will be adopted using a sub-regulatory process and NQF changes that are substantive in nature will be adopted through the rulemaking process.
In the CY 2014 HH PPS final rule (78 FR 72294), we stated that the HH quality measures reporting requirements for Medicare-certified agencies includes the Home Health Care CAHPS® (HHCAHPS) Survey for the CY 2014 APU. We maintained the stated HHCAHPS data requirements for CY 2014 set out in previous rules, for the continuous monthly data collection and quarterly data submission of HHCAHPS data.
As part of the HHS Transparency Initiative, we implemented a process to measure and publicly report patient experiences with home health care, using a survey developed by the Agency for Healthcare Research and Quality's (AHRQ's) Consumer Assessment of Healthcare Providers and Systems (CAHPS®) program and endorsed by the NQF in March 2009 (NQF Number 0517). The HHCAHPS survey is part of a family of CAHPS® surveys that asks patients to report on and rate their experiences with health care. The Home Health Care CAHPS® (HHCAHPS) survey presents home health patients with a set of standardized questions about their home health care providers and about the quality of their home health care.
Prior to this survey, there was no national standard for collecting information about patient experiences that will enable valid comparisons across all HHAs. The history and development process for HHCAHPS has been described in previous rules and is also available on the official HHCAHPS Web site at
For public reporting purposes, we report five measures from the HHCAHPS Survey—three composite measures and two global ratings of care that are derived from the questions on the HHCAHPS survey. The publicly reported data are adjusted for differences in patient mix across HHAs. We update the HHCAHPS data on Home Health Compare on
• Patient care (Q9, Q16, Q19, and Q24);
• Communications between providers and patients (Q2, Q15, Q17, Q18, Q22, and Q23); and
• Specific care issues on medications, home safety, and pain (Q3, Q4, Q5, Q10, Q12, Q13, and Q14).
The two global ratings are the overall rating of care given by the HHA's care providers (Q20), and the patient's willingness to recommend the HHA to family and friends (Q25).
The HHCAHPS survey is currently available in English, Spanish, Chinese, Russian, and Vietnamese. The OMB number on these surveys is the same (0938–1066). All of these surveys are on the Home Health Care CAHPS® Web site,
All of the requirements about home health patient eligibility for the HHCAHPS survey and conversely, which home health patients are ineligible for the HHCAHPS survey are delineated and detailed in the
Home health patients are
• Are under the age of 18;
• Are deceased prior to the date the sample is pulled;
• Receive hospice care;
• Receive routine maternity care only;
• Are not considered survey eligible because the state in which the patient lives restricts release of patient information for a specific condition or illness that the patient has; or
• No Publicity patients, defined as patients who on their own initiative at their first encounter with the HHAs make it very clear that no one outside of the agencies can be advised of their patient status, and no one outside of the HHAs can contact them for any reason.
We stated in previous rules that Medicare-certified HHAs are required to contract with an approved HHCAHPS survey vendor. This requirement continues, and Medicare-certified agencies also must provide on a monthly basis a list of their patients served to their respective HHCAHPS survey vendors. Agencies are not allowed to influence at all how their patients respond to the HHCAHPS survey.
As previously required, HHCAHPS survey vendors are required to attend introductory and all update trainings conducted by CMS and the HHCAHPS Survey Coordination Team, as well as to pass a post-training certification test. We have approximately 30 approved HHCAHPS survey vendors. The list of approved HHCAHPS survey vendors is available at
We stated in prior final rules that all approved HHCAHPS survey vendors are required to participate in HHCAHPS oversight activities to ensure compliance with HHCAHPS protocols, guidelines, and survey requirements. The purpose of the oversight activities is to ensure that approved HHCAHPS survey vendors follow the
• Organizational Background and Staff Experience;
• Work Plan;
• Sampling Plan;
• Survey Implementation Plan;
• Data Security, Confidentiality and Privacy Plan; and
• Questionnaire Attachments
As part of the oversight activities, the HHCAHPS Survey Coordination Team conducts on-site visits to all approved HHCAHPS survey vendors. The purpose of the site visits is to allow the HHCAHPS Coordination Team to observe the entire HHCAHPS Survey implementation process, from the sampling stage through file preparation and submission, as well as to assess data security and storage. The HHCAHPS Survey Coordination Team reviews the HHCAHPS survey vendor's survey systems, and assesses administration protocols based on the
• Survey management and data systems;
• Printing and mailing materials and facilities;
• Telephone call center facilities;
• Data receipt, entry and storage facilities; and
• Written documentation of survey processes.
After the site visits, HHCAHPS survey vendors are given a defined time period in which to correct any identified issues and provide follow-up documentation of corrections for review. HHCAHPS survey vendors are subject to follow-up site visits on an as-needed basis.
In the CY 2013 HH PPS final rule (77 FR 67094, 67164), we codified the current guideline that all approved HHCAHPS survey vendors fully comply with all HHCAHPS oversight activities. We included this survey requirement at § 484.250(c)(3).
In the CY 2014 HH PPS final rule (78 FR 72294), we stated that for the CY 2015 APU, we will require continued monthly HHCAHPS data collection and reporting for 4 quarters. The data collection period for CY 2015 APU includes the second quarter 2013 through the first quarter 2014 (the months of April 2013 through March 2014). Although these dates are past, we wished to state them in this proposed rule so that HHAs are again reminded of what months constituted the requirements for the CY 2015 APU. HHAs are required to submit their HHCAHPS data files to the HHCAHPS Data Center for the HHCAHPS data from the first quarter of 2014 data by 11:59 p.m., e.d.t. on July 17, 2014. This deadline is firm; no exceptions are permitted.
For the CY 2016 APU, we require continued monthly HHCAHPS data collection and reporting for 4 quarters. The data collection period for the CY 2016 APU includes the second quarter 2014 through the first quarter 2015 (the months of April 2014 through March 2015). HHAs will be required to submit their HHCAHPS data files to the HHCAHPS Data Center for the second quarter 2014 by 11:59 p.m., e.d.t. on October 16, 2014; for the third quarter 2014 by 11:59 p.m., e.s.t. on January 15, 2015; for the fourth quarter 2014 by 11:59 p.m., e.d.t. on April 16, 2015; and for the first quarter 2015 by 11:59 p.m., e.d.t. on July 16, 2015. These deadlines will be firm; no exceptions will be permitted.
We will exempt HHAs receiving Medicare certification after the period in which HHAs do their patient count (April 1, 2013 through March 31, 2014) on or after April 1, 2014, from the full HHCAHPS reporting requirement for the CY 2016 APU, because these HHAs will not have been Medicare-certified throughout the period of April 1, 2013, through March 31, 2014. These HHAs will not need to complete a HHCAHPS Participation Exemption Request form for the CY 2016 APU.
We require that all HHAs that had fewer than 60 HHCAHPS-eligible unduplicated or unique patients in the period of April 1, 2013 through March 31, 2014 are exempt from the HHCAHPS data collection and submission requirements for the CY 2016 APU, upon completion of the CY 2016 HHCAHPS Participation Exemption Request form. Agencies with fewer than 60 HHCAHPS-eligible, unduplicated or unique patients in the period of April 1, 2013, through March 31, 2014, will be required to submit their patient counts on the HHCAHPS Participation Exemption Request form for the CY 2016 APU posted on
For the CY 2017 APU, we require continued monthly HHCAHPS data collection and reporting for 4 quarters. The data collection period for the CY 2017 APU includes the second quarter 2015 through the first quarter 2016 (the months of April 2015 through March 2016). HHAs will be required to submit their HHCAHPS data files to the HHCAHPS Data Center for the second quarter 2015 by 11:59 p.m., e.d.t. on October 15, 2015; for the third quarter 2015 by 11:59 p.m., e.s.t. on January 12, 2016; for the fourth quarter 2015 by 11:59 p.m., e.d.t. on April 21, 2016; and for the first quarter 2016 by 11:59 p.m., e.d.t. on July 21, 2016. These deadlines will be firm; no exceptions will be permitted.
We will exempt HHAs receiving Medicare certification after the period in which HHAs do their patient count (April 1, 2014 through March 31, 2015) on or after April 1, 2015, from the full HHCAHPS reporting requirement for the CY 2016 APU, because these HHAs will not have been Medicare-certified throughout the period of April 1, 2014, through March 31, 2015. These HHAs will not need to complete a HHCAHPS Participation Exemption Request form for the CY 2017 APU.
We require that all HHAs that had fewer than 60 HHCAHPS-eligible unduplicated or unique patients in the period of April 1, 2014, through March 31, 2015 are exempt from the HHCAHPS data collection and submission requirements for the CY 2017 APU, upon completion of the CY 2017 HHCAHPS Participation Exemption Request form. Agencies with fewer than 60 HHCAHPS-eligible, unduplicated or unique patients in the period of April 1, 2014, through March 31, 2015, will be required to submit their patient counts on the HHCAHPS Participation Exemption Request form for the CY 2017 APU posted on
HHAs should monitor their respective HHCAHPS survey vendors to ensure that vendors submit their HHCAHPS data on time, by accessing their HHCAHPS Data Submission Reports on
We will continue HHCAHPS oversight activities as finalized in the CY 2014 rule. In the CY 2013 HH PPS final rule (77 FR 6704, 67164), we codified the current guideline that all approved HHCAHPS survey vendors must fully comply with all HHCAHPS oversight activities. We included this survey requirement at § 484.250(c)(3).
We will continue the HHCAHPS reconsiderations and appeals process that we have finalized and that we have used for prior periods for the CY 2012, CY 2013, and CY 2014 APU determinations. We have described the HHCAHPS reconsiderations process requirements in the Technical Direction Letter that we send to the affected HHAs, on or about the first Friday in September. HHAs have 30 days from their receipt of the Technical Direction Letter informing them that they did not meet the HHCAHPS requirements for the CY period, to send all documentation that supports their requests for reconsideration to CMS. It is important that the affected HHAs send in comprehensive information in their reconsideration letter/package because we will not contact the affected HHAs to request additional information or to clarify incomplete or inconclusive information. If clear evidence to support a finding of compliance is not present, the 2 percent reduction in the APU will be upheld. If clear evidence of compliance is present, the 2 percent reduction for the APU will be reversed. We will notify affected HHAs by about mid-December. If we determine to uphold the 2 percent reduction, the HHA may further appeal the 2 percent reduction via the Provider Reimbursement Review Board (PRRB) appeals process.
We are not proposing any changes to the participation requirements, or to the requirements pertaining to the implementation of the Home Health CAHPS® Survey (HHCAHPS). We again strongly encourage HHAs to learn about the survey and view the HHCAHPS Survey Web site at the official Web site for the HHCAHPS at
Sections 1895(b)(4)(A)(ii) and (b)(4)(C) of the Act require the Secretary to provide appropriate adjustments to the proportion of the payment amount under the HH PPS that account for area wage differences, using adjustment factors that reflect the relative level of wages and wage-related costs applicable to the furnishing of HH services. Since the inception of the HH PPS, we have used inpatient hospital wage data in developing a wage index to be applied to HH payments. We propose to continue this practice for CY 2015, as we continue to believe that, in the absence of HH-specific wage data, using inpatient hospital wage data is appropriate and reasonable for the HH PPS. Specifically, we propose to continue to use the pre-floor, pre-reclassified hospital wage index as the wage adjustment to the labor portion of the HH PPS rates. For CY 2015, the updated wage data are for hospital cost reporting periods beginning on or after October 1, 2010 and before October 1, 2011 (FY 2011 cost report data).
We would apply the appropriate wage index value to the labor portion of the HH PPS rates based on the site of service for the beneficiary (defined by section 1861(m) of the Act as the beneficiary's place of residence). Previously, we determined each HHA's labor market area based on definitions of metropolitan statistical areas (MSAs) issued by the OMB. In the CY 2006 HH PPS final rule (70 FR 68132), we began adopting revised labor market area definitions as discussed in the OMB Bulletin No. 03–04 (June 6, 2003). This bulletin announced revised definitions for MSAs and the creation of micropolitan statistical areas and core-based statistical areas (CBSAs). The bulletin is available online at
We propose to continue to use the same methodology discussed in the CY 2007 HH PPS final rule (71 FR 65884) to address those geographic areas in which there are no inpatient hospitals, and thus, no hospital wage data on which to base the calculation of the CY 2015 HH PPS wage index. For rural areas that do not have inpatient hospitals, we will use the average wage index from all contiguous CBSAs as a reasonable proxy. For CY 2015, there are no rural areas that do not have inpatient hospitals, and thus, this methodology would not be applied. For rural Puerto Rico, we do not apply this methodology due to the distinct economic circumstances that exist there (for example, due to the close proximity to one another of almost all of Puerto Rico's various urban and non-urban areas, this methodology would produce a wage index for rural Puerto Rico that is higher than that in half of its urban areas). Instead, we would continue to use the most recent wage index previously available for that area. For urban areas without inpatient hospitals, we use the average wage index of all urban areas within the state as a
On February 28, 2013, OMB issued Bulletin No. 13–01, announcing revisions to the delineations of MSAs, Micropolitan Statistical Areas, and CBSAs, and guidance on uses of the delineation of these areas. This bulletin is available online at
While the revisions OMB published on February 28, 2013 are not as sweeping as the changes made when we adopted the CBSA geographic designations for CY 2006, the February 28, 2013 bulletin does contain a number of significant changes. For example, there are new CBSAs, urban counties that have become rural, rural counties that have become urban, and existing CBSAs that have been split apart.
As discussed in the CY 2014 HH PPS final rule (78 FR 72302), the changes made by the bulletin and their ramifications required extensive review by CMS before using them for the HH PPS wage index. We have completed our assessment and in the FY 2015 IPPS proposed rule (79 FR 27978), we proposed to use the most recent labor market area delineations issued by OMB for payments for inpatient stays at general acute care and long-term care hospitals (LTCHs). In addition, in the FY 2015 Skilled Nursing Facility (SNF) PPS proposed rule (79 FR 25767), we proposed to use the new labor market delineations issued by OMB for payments for SNFs. We are proposing changes to the HH PPS wage index based on the newest OMB delineations, as described in OMB Bulletin No. 13–01.
We believe it is important for the HH PPS to use the latest OMB delineations available to maintain a more accurate and up-to-date payment system that reflects the reality of population shifts and labor market conditions. While CMS and other stakeholders have explored potential alternatives to the current CBSA-based labor market system (we refer readers to the CMS Web site at
We propose incorporating the new CBSA delineations into the CY 2015 HH PPS wage index in the same manner in which the CBSAs were first incorporated into the HH PPS wage index in CY 2006 (70 FR 68138). We propose to use a one-year blended wage index for CY 2015. We refer to this blended wage index as the CY 2015 HH PPS transition wage index. The transition wage index would consist of a 50/50 blend of the wage index values using OMB's old area delineations and the wage index values using OMB's new area delineations. That is, for each county, a blended wage index would be calculated equal to fifty percent of the CY 2015 wage index using the old labor market area delineation and fifty percent of the CY 2015 wage index using the new labor market area delineation (both using FY 2011 hospital wage data). This ultimately results in an average of the two values.
If we adopt the new OMB delineations, a total of 37 counties (and county equivalents) that are currently considered part of an urban CBSA would be considered rural beginning in CY 2015. Table 13 below lists the 37 urban counties that would change to rural status.
If we finalize our proposal to implement the new OMB delineations, a total of 105 counties (and county equivalents) that are currently located in rural areas would be considered part of an urban CBSA beginning in CY 2015. Table 14 lists the 105 rural counties that would change to urban status.
In addition to rural counties becoming urban and urban counties becoming rural, several urban counties would shift from one urban CBSA to another urban CBSA under our proposal to adopt the new OMB delineations. In other cases, applying the new OMB delineations would involve a change only in CBSA name or number, while the CBSA continues to encompass the same constituent counties. For example, CBSA 29140 (Lafayette, IN), would experience both a change to its number and its name, and would become CBSA 29200 (Lafayette-West Lafayette, IN), while all of its three constituent counties would remain the same. We are not discussing these proposed changes in this section because they are inconsequential changes with respect to the HH PPS wage index. However, in
In one type of change, an entire CBSA would be subsumed by another CBSA. For example, CBSA 37380 (Palm Coast, FL) currently is a single county (Flagler, FL) CBSA. Flagler County would be a part of CBSA 19660 (Deltona-Daytona Beach-Ormond Beach, FL) under the new OMB delineations.
In another type of change, some CBSAs have counties that would split off to become part of or to form entirely new labor market areas. For example, CBSA 37964 (Philadelphia Metropolitan Division of MSA 37980) currently is comprised of five Pennsylvania counties (Bucks, Chester, Delaware, Montgomery, and Philadelphia). If we adopt the new OMB delineations, Montgomery, Bucks, and Chester counties would split off and form the new CBSA 33874 (Montgomery County-Bucks County-Chester County, PA Metropolitan Division of MSA 37980), while Delaware and Philadelphia counties would remain in CBSA 37964.
Finally, in some cases, a CBSA would lose counties to another existing CBSA if we adopt the new OMB delineations. For example, Lincoln County and Putnam County, WV would move from CBSA 16620 (Charleston, WV) to CBSA 26580 (Huntington-Ashland, WV KY OH). CBSA 16620 would still exist in the new labor market delineations with fewer constituent counties. Table 15 lists the urban counties that would move from one urban CBSA to another urban CBSA if we adopt the new OMB delineations.
As discussed in the FY 2015 SNF PPS proposed rule (79 FR 25767), we proposed to adopt OMB's new delineations in the SNF PPS in the same manner that we are proposing to adopt the new delineations in the HH PPS. The FY 2015 SNF PPS proposed rule includes extensive analysis of the application of OMB's new delineations as well as other alternatives considered.
For the reasons discussed above, and based on provider reaction during the CY 2006 rulemaking cycle to the proposed adoption of the new CBSA definitions, we are proposing to apply a
The wage index Addendum provides a crosswalk between the CY 2015 wage index using the current OMB delineations in effect in CY 2014 and the CY 2015 wage index using the revised OMB delineations. Addendum A shows each state and county and its corresponding proposed transition wage index along with the previous CBSA number, the new CBSA number and the new CBSA name. Due to the calculation of the blended transition wage index, some CBSAs may have more than one transition wage index value associated with that CBSA. However, each county will have only one transition wage index. Therefore, for counties located in CBSAs that correspond to more than one transition wage index, a number other than the CBSA number would be used for claims submission for CY 2015 only. These numbers are shown in the last column of Addendum A. The proposed CY 2015 transition wage index as set forth in Addendum A is available on the CMS Web site at
The Medicare HH PPS has been in effect since October 1, 2000. As set forth in the July 3, 2000 final rule (65 FR 41128), the base unit of payment under the Medicare HH PPS is a national, standardized 60-day episode payment rate. As set forth in 42 CFR 484.220, we adjust the national, standardized 60-day episode payment rate by a case-mix relative weight and a wage index value based on the site of service for the beneficiary.
To provide appropriate adjustments to the proportion of the payment amount under the HH PPS to account for area wage differences, we apply the appropriate wage index value to the labor portion of the HH PPS rates. The labor-related share of the case-mix adjusted 60-day episode rate will continue to be 78.535 percent and the non-labor-related share will continue to be 21.465 percent as set out in the CY 2013 HH PPS final rule (77 FR 67068). The CY 2015 HH PPS rates would use the same case-mix methodology as set forth in the CY 2008 HH PPS final rule with comment period (72 FR 49762) and adjusted as described in section III.C. of this rule. The following are the steps we take to compute the case-mix and wage-adjusted 60-day episode rate:
(1) Multiply the national 60-day episode rate by the patient's applicable case-mix weight.
(2) Divide the case-mix adjusted amount into a labor (78.535 percent) and a non-labor portion (21.465 percent).
(3) Multiply the labor portion by the applicable wage index based on the site of service of the beneficiary.
(4) Add the wage-adjusted portion to the non-labor portion, yielding the case-mix and wage adjusted 60-day episode rate, subject to any additional applicable adjustments.
In accordance with section 1895(b)(3)(B) of the Act, this document constitutes the annual update of the HH PPS rates. Section 484.225 sets forth the specific annual percentage update methodology. In accordance with § 484.225(i), for a HHA that does not submit HH quality data, as specified by the Secretary, the unadjusted national prospective 60-day episode rate is equal to the rate for the previous calendar year increased by the applicable HH market basket index amount minus two percentage points. Any reduction of the percentage change will apply only to the calendar year involved and will not be considered in computing the prospective payment amount for a subsequent calendar year.
Medicare pays the national, standardized 60-day case-mix and wage-adjusted episode payment on a split percentage payment approach. The split percentage payment approach includes an initial percentage payment and a final percentage payment as set forth in § 484.205(b)(1) and § 484.205(b)(2). We may base the initial percentage payment on the submission of a request for anticipated payment (RAP) and the final percentage payment on the submission of the claim for the episode, as discussed in § 409.43. The claim for the episode that the HHA submits for the final percentage payment determines the total payment amount for the episode and whether we make an applicable adjustment to the 60-day case-mix and wage-adjusted episode payment. The end date of the 60-day episode as reported on the claim determines which calendar year rates Medicare will use to pay the claim.
We may also adjust the 60-day case-mix and wage-adjusted episode payment based on the information submitted on the claim to reflect the following:
• A low-utilization payment adjustment (LUPA) is provided on a per-visit basis as set forth in § 484.205(c) and § 484.230.
• A partial episode payment (PEP) adjustment as set forth in § 484.205(d) and § 484.235.
• An outlier payment as set forth in § 484.205(e) and § 484.240.
Section 1895(3)(A)(i) of the Act required that the 60-day episode base rate and other applicable amounts be standardized in a manner that eliminates the effects of variations in relative case mix and area wage adjustments among different home health agencies in a budget neutral manner. To determine the proposed CY 2015 national, standardized 60-day episode payment rate, we would apply a wage index standardization factor, a case-mix budget neutrality factor described in section III.C, the rebasing adjustment described in section II.C, and the MFP-adjusted home health market basket update discussed in section III.D.1 of this proposed rule.
To calculate the wage index standardization factor, henceforth referred to as the wage index budget neutrality factor, we simulated total payments for non-LUPA episodes using the 2015 wage index and compared it to our simulation of total payments for non-LUPA episodes using the 2014 wage index. By dividing the total payments for non-LUPA episodes using the 2015 wage index by the total payments for non-LUPA episodes using the 2014 wage index, we obtain a wage index budget neutrality factor of 1.0012. We would apply the wage index budget neutrality factor of 1.0012 to the CY 2015 national, standardized 60-day episode rate.
As discussed in section III.C of this proposed rule, to ensure the changes to the case-mix weights are implemented in a budget neutral manner, we would apply a case-mix weights budget neutrality factor to the CY 2015 national, standardized 60-day episode payment rate. The case-mix weights budget neutrality factor is calculated as the ratio of total payments when CY 2015 case-mix weights are applied to CY 2013 utilization (claims) data to total payments when CY 2014 case-mix
Then, we would apply the −$80.95 rebasing adjustment finalized in the CY 2014 HH PPS final rule (78 FR 72256) and discussed in section II.C. Lastly, we would update the payment rates by the CY 2015 HH payment update percentage of 2.2 percent (MFP-adjusted home health market basket update) as described in section III.D.1 of this proposed rule. The proposed CY 2015 national, standardized 60-day episode payment rate would be $2,922.76 as calculated in Table 16.
The proposed CY 2015 national, standardized 60-day episode payment rate for an HHA that does not submit the required quality data is updated by the CY 2015 HH payment update percentage (2.2 percent) minus 2 percentage points and is shown in Table 17.
The national per-visit rates are used to pay LUPAs (episodes with four or fewer visits) and are also used to compute imputed costs in outlier calculations. The per-visit rates are paid by type of visit or HH discipline. The six HH disciplines are as follows:
• Home health aide (HH aide);
• Medical Social Services (MSS);
• Occupational therapy (OT);
• Physical therapy (PT);
• Skilled nursing (SN); and
• Speech-language pathology (SLP).
To calculate the CY 2015 national per-visit rates, we start with the CY 2014 national per-visit rates. We then apply a wage index budget neutrality factor to ensure budget neutrality for LUPA per-visit payments and increase each of the six per-visit rates by the maximum rebasing adjustments described in section II.C. of this rule. We calculate the wage index budget neutrality factor by simulating total payments for LUPA episodes using the 2015 wage index and comparing it to simulated total payments for LUPA episodes using the 2014 wage index. By dividing the total payments for LUPA episodes using the 2015 wage index by the total payments for LUPA episodes using the 2014 wage index, we obtain a wage index budget neutrality factor of 1.0000. We would apply the wage index budget neutrality factor of 1.0000 to the CY 2015 national per-visit rates.
The LUPA per-visit rates are not calculated using case-mix weights. Therefore, there is no case-mix weights budget neutrality factor is needed to ensure budget neutrality for LUPA payments. Finally, the per-visit rates for each discipline are updated by the CY 2015 HH payment update percentage of 2.2 percent. The national per-visit rates are adjusted by the wage index based on the site of service of the beneficiary. The per-visit payments for LUPAs are separate from the LUPA add-on payment amount, which is paid for episodes that occur as the only episode or initial episode in a sequence of adjacent episodes. The proposed CY 2015 national per-visit rates are shown in Tables 18 and 19.
The proposed CY 2015 per-visit payment rates for an HHA that does not submit the required quality data are updated by the CY 2015 HH payment update percentage (2.2 percent) minus 2
LUPA episodes that occur as the only episode or as an initial episode in a sequence of adjacent episodes are adjusted by applying an additional amount to the LUPA payment before adjusting for area wage differences. In the CY 2014 HH PPS final rule, we changed the methodology for calculating the LUPA add-on amount by finalizing the use of three LUPA add-on factors: 1.8451 for SN; 1.6700 for PT; and 1.6266 for SLP (78 FR 72306). We multiply the per-visit payment amount for the first SN, PT, or SLP visit in LUPA episodes that occur as the only episode or an initial episode in a sequence of adjacent episodes by the appropriate factor to determine the LUPA add-on payment amount. For example, for LUPA episodes that occur as the only episode or an initial episode in a sequence of adjacent episodes, if the first skilled visit is SN, the payment for that visit will be $235.82 (1.8451 multiplied by $127.81).
Payments for NRS are computed by multiplying the relative weight for a particular severity level by the NRS conversion factor. To determine the CY 2015 NRS conversion factor, we start with the 2014 NRS conversion factor ($53.65) and apply the −2.82 percent rebasing adjustment calculated in section II.C. of this rule (1 − 0.0282 = 0.9718). We then update the conversion factor by the CY 2015 HH payment update percentage (2.2 percent). We do not apply a standardization factor as the NRS payment amount calculated from the conversion factor is not wage or case-mix adjusted when the final claim payment amount is computed. The proposed NRS conversion factor for CY 2015 is shown in Table 20.
Using the proposed CY 2015 NRS conversion factor, the proposed payment amounts for the six severity levels are shown in Table 21.
For HHAs that do not submit the required quality data, we again begin with the CY 2014 NRS conversion factor ($53.65) and apply the −2.82 percent rebasing adjustment discussed in section II.C of this proposed rule (1− 0.0282 = 0.9718). We then update the NRS conversion factor by the CY 2015 HH payment update percentage (2.2 percent) minus 2 percentage points. The proposed CY 2015 NRS conversion factor for HHAs that do not submit quality data is shown in Table 22.
The proposed payment amounts for the various severity levels based on the updated conversion factor for HHAs that do not submit quality data are calculated in Table 23.
Section 421(a) of the MMA required, for HH services furnished in a rural areas (as defined in section 1886(d)(2)(D) of the Act), for episodes or visits ending on or after April 1, 2004, and before April 1, 2005, that the Secretary increase the payment amount that otherwise will have been made under section 1895 of the Act for the services by 5 percent.
Section 5201 of the DRA amended section 421(a) of the MMA. The amended section 421(a) of the MMA required, for HH services furnished in a rural area (as defined in section 1886(d)(2)(D) of the Act), on or after January 1, 2006 and before January 1, 2007, that the Secretary increase the payment amount otherwise made under section 1895 of the Act for those services by 5 percent.
Section 3131(c) of the Affordable Care Act amended section 421(a) of the MMA to provide an increase of 3 percent of the payment amount otherwise made under section 1895 of the Act for HH services furnished in a rural area (as defined in section 1886(d)(2)(D) of the Act), for episodes and visits ending on or after April 1, 2010, and before January 1, 2016.
Section 421 of the MMA, as amended, waives budget neutrality related to this provision, as the statute specifically states that the Secretary shall not reduce the standard prospective payment amount (or amounts) under section 1895 of the Act applicable to HH services furnished during a period to offset the increase in payments resulting in the application of this section of the statute.
Refer to Tables 24 through 27 for the proposed payment rates for home health services provided in rural areas.
Section 1895(b)(5) of the Act allows for the provision of an addition or adjustment to the national, standardized 60-day case-mix and wage-adjusted episode payment amounts in the case of episodes that incur unusually high costs due to patient care needs. Prior to the enactment of the Affordable Care Act, section 1895(b)(5) of the Act stipulated that projected total outlier payments could not exceed 5 percent of total projected or estimated HH payments in a given year. In the Medicare Program; Prospective Payment System for Home Health Agencies final rule (65 FR 41188 through 41190), we described the method for determining outlier payments. Under this system, outlier payments are made for episodes whose estimated costs exceed a threshold amount for each HH Resource Group (HHRG). The episode's estimated cost is the sum of the national wage-adjusted per-visit payment amounts for all visits delivered during the episode. The outlier threshold for each case-mix group or PEP adjustment is defined as the 60-day episode payment or PEP adjustment for that group plus a fixed-dollar loss (FDL) amount. The outlier payment is defined to be a proportion of the wage-adjusted estimated cost beyond the wage-adjusted threshold. The threshold amount is the sum of the wage and case-mix adjusted PPS episode amount and wage-adjusted FDL amount. The proportion of additional costs over the outlier threshold amount paid as outlier payments is referred to as the loss-sharing ratio.
In the CY 2010 HH PPS final rule (74 FR 58080 through 58087), we discussed excessive growth in outlier payments, primarily the result of unusually high outlier payments in a few areas of the country. Despite program integrity efforts associated with excessive outlier payments in targeted areas of the country, we discovered that outlier expenditures still exceeded the 5 percent, target and, in the absence of corrective measures, would continue do to so. Consequently, we assessed the appropriateness of taking action to curb outlier abuse. To mitigate possible billing vulnerabilities associated with excessive outlier payments and adhere to our statutory limit on outlier payments, we adopted an outlier policy that included a 10 percent agency-level cap on outlier payments. This cap was implemented in concert with a reduced FDL ratio of 0.67. These policies resulted in a projected target outlier pool of approximately 2.5 percent. (The previous outlier pool was 5 percent of total HH expenditure). For CY 2010, we first returned 5 percent of these dollars back into the national, standardized 60-day episode rates, the national per-visit rates, the LUPA add-on payment amount, and the NRS conversion factor. Then, we reduced the CY 2010 rates by 2.5 percent to account for the new outlier pool of 2.5 percent. This outlier policy was adopted for CY 2010 only.
As we noted in the CY 2011 HH PPS final rule (75 FR 70397 through 70399), section 3131(b)(1) of the Affordable Care Act amended section 1895(b)(3)(C) of the Act. As amended, “Adjustment for outliers,” states that “The Secretary shall reduce the standard prospective payment amount (or amounts) under this paragraph applicable to HH services furnished during a period by such proportion as will result in an aggregate reduction in payments for the period equal to 5 percent of the total payments estimated to be made based on the prospective payment system under this subsection for the period.” In addition,
As such, beginning in CY 2011, our HH PPS outlier policy is that we reduce payment rates by 5 percent and target up to 2.5 percent of total estimated HH PPS payments to be paid as outliers. To do so, we first returned the 2.5 percent held for the target CY 2010 outlier pool to the national, standardized 60-day episode rates, the national per visit rates, the LUPA add-on payment amount, and the NRS conversion factor for CY 2010. We then reduced the rates by 5 percent as required by section 1895(b)(3)(C) of the Act, as amended by section 3131(b)(1) of the Affordable Care Act. For CY 2011 and subsequent calendar years we target up to 2.5 percent of estimated total payments to be paid as outlier payments, and apply a 10 percent agency-level outlier cap.
For a given level of outlier payments, there is a trade-off between the values selected for the FDL ratio and the loss-sharing ratio. A high FDL ratio reduces the number of episodes that can receive outlier payments, but makes it possible to select a higher loss-sharing ratio, and therefore, increase outlier payments for outlier episodes. Alternatively, a lower FDL ratio means that more episodes can qualify for outlier payments, but outlier payments per episode must then be lower.
The FDL ratio and the loss-sharing ratio must be selected so that the estimated total outlier payments do not exceed the 2.5 percent aggregate level (as required by section 1895(b)(5)(A) of the Act). Historically, we have used a value of 0.80 for the loss-sharing ratio which, we believe, preserves incentives for agencies to attempt to provide care efficiently for outlier cases. With a loss-sharing ratio of 0.80, Medicare pays 80 percent of the additional estimated costs above the outlier threshold amount. We are not proposing a change to the loss-sharing ratio in this proposed rule.
In the CY 2011 HH PPS final rule (75 FR 70398), in targeting total outlier payments as 2.5 percent of total HH PPS payments, we implemented an FDL ratio of 0.67, and we maintained that ratio in CY 2012. Simulations based on CY 2010 claims data completed for the CY 2013 HH PPS final rule showed that outlier payments were estimated to comprise approximately 2.18 percent of total HH PPS payments in CY 2013, and as such, we lowered the FDL ratio from 0.67 to 0.45. We stated that lowering the FDL ratio to 0.45, while maintaining a loss-sharing ratio of 0.80, struck an effective balance of compensating for high-cost episodes while allowing more episodes to qualify as outlier payments (77 FR 67080). The national, standardized 60-day episode payment amount is multiplied by the FDL ratio. That amount is wage-adjusted to derive the wage-adjusted FDL amount, which is added to the case-mix and wage-adjusted 60-day episode payment amount to determine the outlier threshold amount that costs have to exceed before Medicare will pay 80 percent of the additional estimated costs.
Based on simulations using preliminary CY 2013 claims data, the proposed CY 2015 payments rates in section III.D.4 of this proposed rule, and the FDL ratio of 0.45; we estimate that outlier payments would comprise approximately 2.26 percent of total HH PPS payments in CY 2015. Simulating payments using preliminary CY 2013 claims data and the CY 2014 payment rates (78 FR 72304 through 72308), we estimate that outlier payments would comprise 2.01 percent of total payments. Given the proposed increases to the CY 2015 national per-visit payment rates, our analysis estimates an additional 0.25 percentage point increase in estimated outlier payments as a percent of total HH PPS payments each year that we phase-in the rebasing adjustments described in section II.C. We estimate that for CY 2016, estimated outlier payments as a percent of total HH PPS payments will increase to 2.51 percent. We note that these estimates do not take in to account any changes in utilization that may have occurred in CY 2014, and would continue to occur in CY 2015. Therefore, we are not proposing a change to the FDL ratio for CY 2015. In the final rule, we will update our estimate of outlier payments as a percent of total HH PPS payments using the most current and complete year of HH PPS data. We will continue to monitor the percent of total HH PPS payments paid as outlier payments to determine if future adjustments to either the FDL ratio or loss-sharing ratio are warranted.
Home health policy regarding coverage of home health visits for the sole purpose of insulin injections is limited to patients that are physically or mentally unable to self-inject and there is no other person who is able and willing to inject the patient.
As generally accepted by the medical community, older patients (age 65 and older) are more likely to have impairments in dexterity, cognition, vision, and hearing.
Another important consideration with regards to insulin administration in the elderly population is the possibility of dosing errors.
Insulin pens are designed to facilitate easy self-administration, the possession of which would suggest the ability to self-inject. Additionally, insulin pens often come pre-filled with insulin or must be used with a pre-filled cartridge thus potentially negating the need for skilled nursing for the purpose of calculating and filling appropriate doses. It is recognized that visual impairment, joint immobility and/or pain, peripheral neuropathy, and cognitive issues may affect the ability of elderly patients to determine correct insulin dosing and injection. Our literature review indicates that insulin pen devices may be beneficial in terms of safety for elderly patients due to these visual or physical disabilities.
• Convenience, as the insulin pen eliminates the need to draw up a dose;
• Greater dose accuracy and reliability, especially for low doses which are often needed in the elderly;
• Sensory and auditory feedback associated with the dial mechanism on many pens may also benefit those with visual impairments;
• Pen devices are also more compact, portable and easier to grip, which may benefit those with impairments in manual dexterity; and
• Less painful injections and overall ease of use.
Although pen devices are often perceived to be more costly than vialed insulin, study results indicate that elderly diabetic patients are more likely to accept pen devices and adhere to therapy, which leads to better glycemic control that decreases long-term complications and associated healthcare costs.
Further research regarding self-injection of insulin, whether via a vial and syringe method or insulin pen, shows that education for starting insulin and monitoring should be provided by a diabetes nurse specialist, and typically entails 5 to 10 face-to-face contacts either in the patient's home or at the diabetes clinic; these are in addition to telephone contacts to further reinforce teaching and to answer patient questions.
In the CY 2014 HH PPS final rule (78 FR 72256), we noted “The Office of Inspector General (OIG) released a “Management Implications Report in August of 2013” that concluded there is a “systemic weakness that results in Medicare coverage of unnecessary home health care for diabetic patients”. The OIG report noted that investigations show that the majority of beneficiaries involved in fraudulent schemes have a primary diagnosis of diabetes. The report noted that OIG Special Agents found falsified medical records documenting patients having hand tremors and poor vision preventing them from drawing insulin into a syringe, visually verifying the correct dosage, and injecting the insulin themselves, when the patients did not in fact suffer those symptoms.
In light of the OIG report, we conducted analysis and performed simulations using CY 2012 claims data and described our findings in the CY 2014 Home Health PPS Final Rule (78 FR 72310). We found that nearly 44 percent of the episodes that would qualify for outlier payments had a primary diagnosis of diabetes and 16 percent of episodes that would quality for outlier payments had a primary diagnosis of “Diabetes mellitus without mention of complication, type II or unspecified type, not stated as uncontrolled.” Qualifying for outlier
Based upon the initial data analysis described above and the information found in the literature review, we conducted further data analysis with more recent home health claims and OASIS data (CY 2012 and CY 2013) to expand our understanding of the diabetic patient in the home health setting. Specifically, we investigated the extent to which beneficiaries with a diabetes-related principal diagnosis received home health services likely for the primary purpose of insulin injection assistance and whether such services were warranted by other documented medical conditions. We also analyzed the magnitude of Medicare payments associated with home health services provided to this population of interest. The analysis was conducted by Acumen, LLC because of their capacity to provide real-time claims data analysis across all parts of the Medicare program (that is, Part A, Part B, and Part D).
Our analysis began with identifying episodes for the home health diabetic population based on claims and OASIS assessments most likely to be associated with insulin injection assistance. We used the following criteria to identify the home health diabetic population of interest: (1) A diabetic condition listed as the principal/primary diagnosis on the home health claim; (2) Medicare Part A or Part B enrollment for at least three months prior to the episode and during the episode; and (3) episodes with at least 45 skilled visits. This threshold was determined based on the distribution in the average number and length of skilled nursing visits for episodes meeting criteria 1 and 2 above using CY 2013 home health claims data. The average number of skilled nursing visits for beneficiaries who receive at least one skilled nursing visit appeared to increase from 20 visits at the 90th percentile, to 50 visits at the 95th percentile. Additionally, the average length of a skilled nursing visit for episodes between the 90th and 95th percentiles was 37 minutes, less than half the length of visits for episode between the 75th and 90th percentiles.
Approximately 49,100 episodes met the study population criteria described above, accounting for approximately $298 million in Medicare home health payments in CY 2013. Of the 49,100 episodes of interest, 71 percent received outlier payments and, on average, there were 86 skilled nursing visits per episode. In addition, 12 percent of the episodes in the study population were for patients prescribed an insulin pen to self-inject and more than half of the episodes billed (27,439) were for claims that listed ICD–9–CM 2500x, “Diabetes Mellitus without mention of complication”, as the principal diagnosis code. ICD–9–CM describes the code 250.0x as diabetes mellitus without mention of complications (complications can include hypo- or hyperglycemia, or manifestations classified as renal, ophthalmic, neurological, peripheral circulatory damage or neuropathy). Clinically, this code generally means that the diabetes is being well-controlled and there are no apparent complications or symptoms resulting from the diabetes. Diabetes that is controlled and without complications does not warrant intensive intervention or daily skilled nursing visits; rather, it warrants knowledge of the condition and routine monitoring.
As discussed above in this section, the traditional vial and syringe method of insulin administration is one of two methods of insulin administration (excluding the use of insulin pumps). The alternative to the traditional vial and syringe method is the use of insulin pens. We believe that insulin pens are usually prescribed for those beneficiaries that are able to self-administer the insulin via an insulin pen. Therefore, the possession of a prescribed insulin pen would suggest the ability to self-inject. Since insulin pens often come pre-filled with insulin or must be used with a pre-filled cartridge, we believe there would not be a need for skilled nursing for the purpose of insulin injection assistance. We expect providers to assess the needs, abilities, and preference of the patient requiring insulin to facilitate patient autonomy, efficiency, and safety in diabetes self-management, including the administration of insulin. As noted above, approximately 12 percent of the episodes in the study population with visits likely for the purpose of insulin injection assistance were for patients prescribed an insulin pen to self-inject, which does not conform to our current policy that home health visits for the sole purpose of insulin injection assistance is limited to patients that are physically or mentally unable to self-inject and there is no other person who is able and willing to inject the patient.
Furthermore, we recognize that our current sub-regulatory guidance may not adequately address the method of delivery. We are considering additional guidance that may be necessary surrounding insulin injection assistance provided via a pen based upon our analyses described above. We have found that literature supports that insulin pens may reduce expenses for the patient in the form of co-pays and may increase patient adherence to their treatment plan. Therefore, we encourage physicians to consider the potential benefits derived in prescribing insulin pens, when clinically appropriate, given the patient's condition.
We also investigated whether secondary diagnosis codes listed on home health claims support that the patient, either for physical or mental reasons, cannot self-inject. Our contractor, Abt Associates, with review and clinical input from CMS clinical staff and experts, created a list of ICD–9–CM codes that indicate a patient has impairments in dexterity, cognition, vision, and/or hearing that may cause the patient to be unable to self-inject insulin. We found that 49 percent of home health episodes in our study population did not have a secondary diagnosis from that ICD–9–CM code list on the home health claim that supported that the patient was physically or mentally unable to self-inject. When examining only the initial home health episodes of our study population, we found that 67 percent of initial home health episodes with skilled nursing visits likely for insulin injections did not have a secondary diagnosis on the home health claim that supported that the patient was physically or mentally unable to self-
As described above, a group of CMS clinicians and contractor clinicians developed a list of conditions that would support the need for ongoing home health skilled nursing visits for insulin injection assistance for instances where the patient is physically or mentally unable to self-inject and there is no able or willing caregiver to provide assistance. We expect the conditions included in Table 28 to be listed on the claim and OASIS to support the need for skilled nursing visits for insulin injection assistance.
Although we are not proposing any policy changes at this time, we are soliciting public comments on whether the conditions in Table 28 represent a comprehensive list of codes that appropriately indicate that a patient may not be able to self-inject and the use of insulin pens in home health. We plan to continue monitoring claims that are likely for the purpose of insulin injection assistance. Historical evidence in the medical record must support the clinical legitimacy of the secondary condition(s) and resulting disability that limit the beneficiary's ability to self-inject.
On April 1, 2014, the Protecting Access to Medicare Act of 2014 (PAMA) (Pub. L. 113–93) was enacted. Section 212 of the PAMA, titled “Delay in Transition from ICD–9 to ICD–10 Code Sets,” provides that “[t]he Secretary of Health and Human Services may not, prior to October 1, 2015, adopt ICD–10 code sets as the standard for code sets under section 1173(c) of the Social Security Act (42 U.S.C. 1320d-2(c)) and § 162.1002 of title 45, Code of Federal Regulations.”
On May 1, 2014, the Secretary announced that HHS expects to issue an interim final rule that will require use of ICD–10 beginning October 1, 2015 and continue to require use of ICD–9–CM through September 30, 2015. This announcement, which is available on the CMS Web site at
As discussed in our CY 2011 HH PPS final rule (75 FR 70372), effective January 1, 2011, therapy reassessments must be performed on or “close to” the 13th and 19th therapy visits and at least once every 30 days. A qualified therapist, of the corresponding discipline for the type of therapy being provided, must functionally reassess the patient using a method which would include objective measurement. The measurement results and corresponding effectiveness of the therapy, or lack thereof, must be documented in the clinical record. We anticipated that policy regarding therapy coverage and therapy reassessments would address payment vulnerabilities that have led to high use and sometimes overuse of therapy services. We also discussed our expectation that this policy change would ensure more qualified therapist involvement for beneficiaries receiving high amounts of therapy. In our CY 2013 HH PPS final rule (77 FR 67068), effective January 1, 2013, we provided further clarifications regarding therapy coverage and therapy reassessments. Specifically, similar to the existing requirements for therapy reassessments when the patient resides in a rural area, we finalized changes to § 409.44(c)(2)(i)(C)(
Our analysis of data from CYs 2010 through 2013 shows that the frequency of episodes with therapy visits reaching 14 and 20 therapy visits did not change substantially as a result of the therapy reassessment policy implemented in CY 2011 (see Table 29). The percentage of episodes with at least 14 covered therapy visits was 17.2 percent in CY 2010 and decreased to 16.0 percent in CY 2011. In CY 2013 the percentage of episodes with at least 14 covered therapy visits increased to 16.3 percent. Likewise, the percentage of episodes with at least 20 covered therapy visits was 6.0 percent in CY 2010 and decreased to 5.4 percent in CY 2011. In CY 2013, the percentage of episodes with at least 20 covered therapy visits was 5.3 percent. We analyzed data for specific types of providers (for example, non-profit, for profit, freestanding, facility-based), and we found the similar trends in the number of episodes with at least 14 and 20 covered therapy visits. For example, for non-profit HHAs, the percentage of episodes with at least 14 covered therapy visits decreased from 11.8 percent in CY 2010 to 11.1 in CY 2011 and episodes with at least 20 covered therapy visits decreased from 4.2 percent in CY 2010 to 3.9 percent in CY 2011. For proprietary HHAs, the percentage of episodes with at least 14 covered therapy visits decreased from 19.7 percent in CY 2010 to 18.2 percent in CY 2011 and episodes with at least 20 covered therapy visits decreased from 6.8 percent in CY 2010 to 6.1 percent in CY 2011.
As we stated in section III.A of this proposed rule, in addition to the implementation of the therapy reassessment requirements in CY 2011, HHAs were also subject to the Affordable Care Act face-to-face encounter requirement, payments were reduced to account for increases nominal case-mix, and the Affordable Care Act mandated that the HH PPS payment rates be reduced by 5 percent to pay up to, but no more than 2.5 percent of total HH PPS payments as outlier payments. The estimated net impact to HHAs for CY 2011 was a decrease in total HH PPS payments of 4.78 percent. The independent effects of any one policy may be difficult to discern in years where multiple policy changes occur in any given year. We note that in our CY 2012 HH PPS final rule (76 FR 68526), we recalibrated and reduced the HH PPS case-mix weights for episodes reaching 14 and 20 therapy visits, thereby greatly diminishing the payment incentive for episodes at those therapy thresholds.
Since the therapy reassessment requirements were implemented in CY 2011, providers have expressed frustration regarding the timing of reassessments for multi-discipline therapy episodes. In multiple therapy episodes, therapists must communicate when a planned visit and/or reassessment is missed to accurately track and count visits. Otherwise, therapy reassessments may be in jeopardy of not being performed during the required timeframe increasing the risk of subsequent visits being non-covered. As stated above, our recent analysis of claims data from CY 2010 through CY 2013 shows no significant change in the percentage of cases reaching the 14 therapy visit and 20 therapy visit thresholds between CY 2010 and CY 2011. Moreover, payment increases at the 14 therapy visit and 20 therapy visit thresholds have been mitigated since the recalibration of the case-mix weights in CY 2012. Therefore, we propose to simplify § 409.44(c)(2) to require a qualified therapist (instead of an assistant) from each discipline to provide the needed therapy service and functionally reassess the patient in
The requirement to perform a therapy reassessment at least once every 14 calendar days would apply to all episodes regardless of the number of therapy visits provided. All other requirements related to therapy reassessments would remain unchanged, such as a qualified therapist (instead of an assistant), from each therapy discipline provided, would still be required to provide the ordered therapy service and functionally reassess the patient using a method which would include objective measurements. The measurement results and corresponding effectiveness of the therapy, or lack thereof, would be documented in the clinical record. We believe that revising this requirement would make it easier and less burdensome for HHAs to track and to schedule therapy reassessments every 14 calendar days as opposed to tracking and counting therapy visits, especially for multiple-discipline therapy episodes. We also believe that this proposal would reduce the risk of non-covered visits so that therapists could focus more on providing quality care for their patients, while still promoting therapist involvement and quality treatment for all beneficiaries, regardless of the level of therapy provided.
We invite comment on this proposal and the associated change in the regulation at § 409.44 in section VI. of this proposed rule.
As we discussed previously in the FY 2009 proposed rule for Skilled Nursing Facilities (73 FR 25918, 25932, May 7, 2008), value-based purchasing (VBP) programs, in general, are intended to tie a provider's payment to its performance in such a way as to reduce inappropriate or poorly furnished care and identify and reward those who furnish quality patient care. Section 3006(b)(1) of the Affordable Care Act directed the Secretary to develop a plan to implement a VBP program for home health agencies (HHAs) and to issue an associated Report to Congress (Report). The Secretary issued that Report, which is available online at
The Report included a roadmap for HHA VBP implementation. The Report outlined the need to develop a HHA VBP program that aligns with other Medicare programs and coordinates incentives to improve quality. The Report indicated that a HHA VBP program should build on and refine existing quality measurement tools and processes. In addition, the Report indicated that one of the ways that such a program could link payment to quality would be to tie payments to overall quality performance.
Section 402 of Public Law 92–603 provided authority for the CMS to conduct the Home Health Pay-for-Performance (HHPFP) Demonstration that ran from 2008 to 2010. The results of that Demonstration found limited quality improvement in certain measures after comparing the quality of care furnished by Demonstration participants to the quality of care furnished by the control group. One important lesson learned from the HHPFP Demonstration was the need to link the home health agency's quality improvement efforts and the incentives. HHAs in three of the four regions generated enough savings to have incentive payments in the first year of the Demonstration, but the size of payments were unknown until after the conclusion of the Demonstration. This time lag on paying incentive payments did not provide a sufficient incentive to HHAs to make investments necessary to improve quality. The Demonstration suggested that future models could benefit from ensuring that incentives are reliable enough, of sufficient magnitude, and paid in a timely fashion to encourage HHAs to be fully engaged in the quality of care initiative. The evaluation report is available online at
We have already successfully implemented the Hospital Value-Based Purchasing (HVBP) program where 1.25 percent of hospital payments in FY 2014 are tied to the quality of care that the hospitals provide. This percentage amount will gradually increase to 2.0 percent in FY 2017 and subsequent years. The President's 2015 Budget proposes that value-based purchasing should be extended to additional providers including skilled nursing facilities, home health agencies, ambulatory surgical centers, and hospital outpatient departments. Therefore, we are now considering testing a HHA VBP model that builds on what we have learned from the HVBP program. The model also presents an opportunity to test whether larger incentives than what have been previously tested will lead to even greater improvement in the quality of care furnished to beneficiaries. The HHA VBP model that is being considered would offer both a greater potential reward for high performing HHAs as well as a greater potential downside risk for low performing HHAs. If implemented, the model would begin at the outset of CY 2016, and include an array of measures that can capture the multiple dimensions of care that HHAs furnish. Building upon the successes of other related programs, we are seeking to implement a model with greater upside benefit and downside risk to motivate HHAs to make the substantive investments necessary to improve the quality of care furnished by HHAs.
As currently envisioned, the HHA VBP model would reduce or increase Medicare payments, in a 5–8 percent range, depending on the degree of quality performance in various measures to be selected. The model would apply to all HHAs in each of the projected five to eight states selected to participate in the model. The distribution of payments would be based on quality performance, as measured by both achievement and improvement across multiple quality measures. Some HHAs would receive higher payments than standard fee-for-service payments and some HHAs would receive lower payments, similar to the HVBP program. We believe the payment adjustment at risk would provide an incentive among all HHAs to provide significantly better quality through improved planning, coordination, and management of care. To be eligible for any incentive payments, HHAs would need to achieve a minimal threshold in quality performance with respect to the care that they furnish. The size of the award would be dependent on the level of quality furnished above the minimal threshold with the highest performance awards going to HHAs with the highest overall level of or improvement in quality.
HHAs that meet or exceed the performance standards based on quality and efficiency metrics would be eligible to earn performance payments. The size of the performance payment would be dependent upon the provider's performance relative to other HHAs within its participating state. HHAs that exceed the performance standards and demonstrate the greatest level of overall quality or quality improvement on the selected measures would have the opportunity to receive performance payment adjustments greater than the amount of the payment reduction, and would therefore see a net payment increase as a result of this model. Those HHAs that fail to meet the performance standard would receive lower payments than what would have been reimbursed
We are considering an HHA VBP model in which participation by all HHAs in five to eight selected states is mandatory. We believe requiring all HHAs in selected states to participate in the model will ensure that: (1) There is no selection bias, (2) participating HHAs are representative of HHAs nationally, and (3) there is sufficient participation to generate meaningful results. In our experience, providers are generally reluctant to participate voluntarily in models in which their Medicare payments are subject to reduction. In this proposed rule, we invite comments on the HHA VBP model outlined above, including elements of the model, size of the payment incentives and percentage of payments that would need to be placed at risk in order to spur HHAs to make the necessary investments to improve the quality of care for Medicare beneficiaries, the timing of the incentive payments, and how performance payments should be distributed. We also invite comments on the best approach for selecting states for participation in this model. Approaches could include: (1) Selecting states randomly, (2) selecting states based on quality, utilization, health IT, or efficiency metrics or a combination, or (3) other considerations.
We note that if we decide to move forward with the implementation of this HHA VBP model in CY 2016, we intend to invite additional comments on a more detailed model proposal to be included in future rulemaking.
HHS believes all patients, their families, and their healthcare providers should have consistent and timely access to their health information in a standardized format that can be securely exchanged between the patient, providers, and others involved in the patient's care. (HHS August 2013 Statement, “Principles and Strategies for Accelerating Health Information Exchange.”) The Department is committed to accelerating health information exchange (HIE) through the use of electronic health records (EHRs) and other types of health information technology (HIT) across the broader care continuum through a number of initiatives including: (1) Alignment of incentives and payment adjustments to encourage provider adoption and optimization of HIT and HIE services through Medicare and Medicaid payment policies, (2) adoption of common standards and certification requirements for interoperable HIT, (3) support for privacy and security of patient information across all HIE-focused initiatives, and (4) governance of health information networks. These initiatives are designed to encourage HIE among all health care providers, including professionals and hospitals eligible for the Medicare and Medicaid EHR Incentive Programs and those who are not eligible for the EHR Incentive programs, and are designed to improve care delivery and coordination across the entire care continuum. To increase flexibility in the Office of the National Coordinator for Health Information Technology's (ONC) regulatory certification structure and expand HIT certification, ONC has proposed a voluntary 2015 Edition EHR Certification rule to more easily accommodate HIT certification for technology used by other types of health care settings where individual or institutional health care providers are not typically eligible for incentive payments under the EHR Incentive Programs, such as long-term and post-acute care and behavioral health settings (79 FR 10880).
We believe that HIE and the use of certified EHRs by HHAs (and other providers ineligible for the Medicare and Medicaid EHR Incentive programs) can effectively and efficiently help providers improve internal care delivery practices, support management of patient care across the continuum, and enable the reporting of electronically specified clinical quality measures (eCQMs). More information on the identification of EHR certification criteria and development of standards applicable to HH can be found at:
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We propose to revise the personnel qualifications for speech-language pathologists (SLP) to more closely align the regulatory requirements with those set forth in section 1861(ll) of the Act. We propose to require that a qualified SLP be an individual who has a master's or doctoral degree in speech-language pathology, and who is licensed as a speech-language pathologist by the State in which he or she furnishes such services. To the extent of our knowledge, all states license SLPs; therefore, all SLPs would be covered by this option. We believe that deferring to the states to establish specific SLP requirements would allow all appropriate SLPs to provide services to Medicare beneficiaries. Should a state choose to not offer licensure at some point in the future, we propose a second, more specific, option for qualification. In that circumstance, we would require that an SLP successfully complete 350 clock hours of supervised clinical practicum (or is in the process of accumulating such supervised clinical experience); perform not less than 9 months of supervised full-time speech-language pathology services after obtaining a master's or doctoral degree in speech-language pathology or a related field; and successfully complete a national examination in speech-language pathology approved by the Secretary. These specific requirements are set forth in the Act, and we believe that they are appropriate for inclusion in the regulations as well.
We invite comments on this technical correction and associated change in the regulations at § 484.4 in section VI.
We propose to make technical corrections in § 424.22(b)(1) to better align the recertification requirements with the Medicare Conditions of Participation (CoPs) for home health services. Specifically, we propose that § 424.22(b)(1) would specify that recertification is required at least every 60 days when there is a need for continuous home health care after an initial 60-day episode to coincide with the CoP requirements in § 484.55(d)(1), which require the HHA to update the comprehensive assessment in the last 5 days of every 60-day episode of care. As stated in § 484.55, the comprehensive assessment must identify the patient's continuing need for home care and meet the patient's medical, nursing, rehabilitative, social, and discharge planning needs. We also propose to specify in § 424.22(b)(1) that recertification is required at least every 60 days
As outlined in the “Medicare Program; Prospective Payment System for Home Health Agencies” final rule published on July 3, 2000 (65 FR 41188 through 41190), a partial episode payment (PEP) adjustment applies to two intervening events: (1) Where the beneficiary elects a transfer to another HHA during a 60-day episode or the patient; or (2) a discharge and return to the same HHA during the 60-day episode when a beneficiary reached the treatment goals in the plan of care. To discharge with goals met, the plan of care must be terminated with no anticipated need for additional home health services for the balance of the 60-day period. A PEP adjustment proportionally adjusts the national, standardized 60-day episode payment amount to reflect the length of time the beneficiary remained under the agency's care before the intervening event.
We propose to revise § 424.22(b)(1)(ii) to clarify that if a beneficiary is discharged with goals met and/or no expectation of a return to home health care and returns to the same HHA during the 60-day episode a new start of care would be initiated (rather than an update to the comprehensive assessment) and thus the second episode would be considered a certification, not a recertification,
We also propose to make a technical correction in § 484.250(a)(1) to remove the “-C” after “OASIS” in § 484.250(a)(1), so that the regulation refers generically to the version of OASIS currently approved by the Secretary, and to align this section with the payment regulations at § 484.210(e). Specifically, an HHA must submit to CMS the OASIS data described at § 484.55(b)(1) and (d)(1) for CMS to administer the payment rate methodologies described in § 484.215, § 484.230, and § 484.235 and to meet the quality reporting requirements of section 1895(b)(3)(B)(v) of the Act.
We invite comments on these technical corrections and associated changes in the regulations at § 424.22 and § 484.250 in section VI.
Section 4023 of the Omnibus Budget Reconciliation Act of 1987 (OBRA '87) (Pub. L 100–203, enacted on December 22, 1987) added subsections 1891(e) and (f) to the Act, which expanded the Secretary's options to enforce federal requirements for home health agencies (HHAs or the agency). Sections 1861(e)(1) and (2) of the Act provide that if CMS determines that an HHA is not in compliance with the Medicare home health Conditions of Participation and the deficiencies involved either do or do not immediately jeopardize the health and safety of the individuals to whom the agency furnishes items and services, then we may terminate the provider agreement, impose an alternative sanction(s), or both. Section 1891(f)(1)(B) of the Act authorizes the Secretary to develop and implement appropriate procedures for appealing determinations relating to the imposition of alternative sanctions.
In the November 8, 2012
Section 488.845(c)(2) addresses the appeals procedures when CMPs are imposed, including the need for any appeal request to meet the requirements of § 498.40 and the option for waiver of a hearing.
We propose to amend § 488.845 by adding a new paragraph (h) which would explain the reviewability of a CMP that is imposed on a HHA for noncompliance with federal participation requirements. The new language will provide that when administrative law judges, state hearing officers (or higher administrative review authorities) find that the basis for imposing a civil money penalty exists, as specified in § 488.485, he or she may not set a penalty of zero or reduce a penalty to zero; review the exercise of discretion by CMS or the state to impose a civil money penalty; or, in reviewing the amount of the penalty, consider any factors other than those specified in § 488.485(b)(1)(i) through (b)(1)(iv). That is, when the administrative law judge or state hearing officer (or higher administrative authority) finds noncompliance supporting the imposition of the CMP, he or she must retain some amount of penalty consistent with the ranges of penalty amounts established in § 488.845(b). The proposed language for HHA reviews is similar to the current § 488.438(e) governing the scope of review for civil money penalties imposed against skilled nursing facilities, and is also consistent with section 1128A(d) of the Act which requires that specific factors be considered in determining the amount of any penalty.
We are also proposing to amend § 498.3, Scope and Applicability, by revising paragraph (b)(13) to include specific cross reference to proposed § 488.845(h) and to revise the reference to section § 488.740 which was a typographical error and replace it with section § 488.820 which is the actual section that lists the sanctions available to be imposed against an HHA. We are also amending § 498.3(b)(14)(i) to include cross reference to proposed § 488.845(h) which establishes the scope of CMP review for HHAs. Finally, we are proposing to amend § 498.60 to include specific references to HHAs and proposed § 488.845(h).
Under the Paperwork Reduction Act of 1995, we are required to provide 60-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
We are soliciting public comment the information collection requirement (ICR) related to the proposed changes to the home health face-to-face encounter requirements in section III.B and the proposed change to the therapy reassessment timeframes in section III.H. These proposed changes are associated with ICR approved under OMB control number as 0938–1083.
The following assumptions were used in estimating the burden for the proposed changes to the home health face-to-face requirements:
All salary information is from the Bureau of Labor Statistics (BLS) Web site at
Sections 1814(a)(2)(C) and 1835 (a)(2)(A) of the Act, as amended by section 6407 of the Affordable Care Act require that, as a condition for payment, prior to certifying a patient's eligibility for the Medicare home health benefit the physician must document that the physician himself or herself or an allowed nonphysician practitioner (NPP) had a face-to-face encounter with the patient. Section 424.22(a)(1)(v) currently requires that the face-to-face encounter be related to the primary reason the patient requires home health services and occur no more than 90 days prior to the home health start of care date or within 30 days after the start of the home health care. In addition, as part of the certification of eligibility, the certifying physician must document the date of the encounter and include an explanation (narrative) of why the clinical findings of such encounter support that the patient is homebound, as defined in section 1835(a) of the Act, and in need of either intermittent skilled nursing services or therapy services, as defined in § 409.42(c).
To simplify the face-to-face encounter regulations, reduce burden for HHAs and physicians, and to mitigate instances where physicians and HHAs unintentionally fail to comply with certification requirements, we propose to eliminate the narrative requirement at § 424.22(a)(1)(v). The certifying physician will still be required to certify that a face-to-face patient encounter, which is related to the primary reason the patient requires home health services, occurred no more than 90 days prior to the home health start of care date or within 30 days of the start of the home health care and was performed by a physician or allowed non-physician practitioner as defined in § 424.22(a)(1)(v)(A), and to document the date of the encounter as part of the certification of eligibility.
In eliminating the face-to-face encounter narrative requirement, we assume that there will be a one-time burden for the HHA to modify the certification form, which the HHA provides to the certifying physician. The revised certification form must allow the certifying physician to certify that a face-to-face patient encounter, which is related to the primary reason the patient requires home health services, occurred no more than 90 days prior to the home health start of care date or within 30 days of the start of the home health care and was performed by a physician or allowed NPP as defined in § 424.22(a)(1)(v)(A). In addition, the certification form must allow the certifying physician to document the date that the face-to-face encounter occurred.
We estimate that it would take a home health clerical staff person 15 minutes (15/60 = 0.25 hours) to modify the certification form, and the HHA administrator 15 minutes (15/60 = 0.25 hours) to review the revised form. The clerical time plus administrator time equals a one-time burden of 30 minutes or (30/60) = 0.50 hours per HHA. For all 11,521 HHAs, the total time required would be (0.50 × 11,521) = 5,761 hours. At $20.54 per hour for an office employee, the cost per HHA would be (0.25 × $20.54) = $5.14. At $64.65 per hour for the administrator's time, the cost per HHA would be (0.25 × $64.65) = $16.16. Therefore, the total one-time cost per HHA would be $21.30, and the total one-time cost for all HHAs would be ($21.30 × 11,521) = $245,397.
In the CY 2011 HH PPS final rule (75 FR 70455), we estimated that the certifying physician's burden for composing the face-to-face encounter narrative, which includes how the clinical findings of the encounter support eligibility (writing, typing, or dictating the face-to-face encounter narrative) signing, and dating the patient's face-to-face encounter, was 5 minutes for each certification (5/60 = 0.0833 hours). Because it has been our longstanding manual policy that physicians sign and date certifications and recertifications, there is no additional burden to physicians for signing and dating the face-to-face encounter documentation. We estimate that there would be 3,096,680 initial home health episodes in a year based on 2012 claims data from the home health Datalink file. As such, the estimated burden for the certifying physician to write the face-to-face encounter narrative would have been 0.0833 hours per certification (5/60 = 0.0833 hours) or 257,953 hours total (0.0833 hours × 3,096,680 initial home health episodes). The estimated cost for the certifying physician to write the face-to-face encounter narrative would have been $9.41 per certification (0.0833 × $112.91) or $29,139,759 total ($9.41 × 3,096,680) for CY 2015.
Although we are proposing to eliminate the narrative, the certifying physician will still be required to document the date of the face-to-face encounter as part of the certification of eligibility. We estimate that it would take no more than 1 minute for the certifying physician to document the date that the face-to-face encounter occurred (1/60 = 0.0166 hours). The estimated burden for the certifying physician to continue to document the date of the face-to-face encounter would be 0.0166 hours per certification or 51,405 hours total (0.0166 hours × 3,096,680 initial home health episodes). The estimated cost for the certifying physician to continue to document the date of the face-to-face encounter would be $1.87 per certification (0.0166 ×
To determine when documentation of a patient's face-to-face encounter is required under sections 1814(a)(2)(C) and 1835 (a)(2)(A) of the Act, we are proposing to clarify that the face-to-face encounter requirement is applicable for certifications (not recertifications), rather than initial episodes. A certification (versus recertification) is generally considered to be any time that a new start of care OASIS is completed to initiate care. We estimate that of the 6,562,856 episodes in the CY 2012 home health Datalink file, 3,096,680 start of care assessments were performed on initial home health episodes. If this proposal is implemented, an additional 830,287 episodes would require documentation of a face-to-face encounter for subsequent episodes that were initiated with a new start of care OASIS assessment. We estimate that it would take no more than 1 minute for the certifying physician to document the date that the face-to-face encounter occurred (1/60 = 0.0166 hours). The estimated burden for the certifying physician to document the date of the face-to-face encounter for each certification (any time a new start of care OASIS is completed to initiate care) would be 0.0166 hours or 13,783 total hours (0.0166 hours × 830,287 additional home health episodes). The estimated cost for the certifying physician to document the date of the face-to-face encounter for each additional home health episode would be $1.87 per certification (0.0166 × $112.91) or $1,552,637 total ($1.87 × 830,287) for CY 2015.
In summary, all of the proposed changes to the face-to-face encounter requirements in section III.B of this proposed rule, including changes to § 424.22(a)(1)(v), will result in an estimated net reduction in burden for certifying physicians of 192,765 hours or $21,796,330 (see Tables 32 and 33). The proposed changes to the face-to-face encounter requirements at § 424.22(a)(1)(v) will result in a one-time burden for HHAs to revise the certification form of 5,761 hours or $245,397 (Table 31).
Currently, section 409.44(c) requires that patient's function must be initially assessed and periodically reassessed by a qualified therapist, of the corresponding discipline for the type of therapy being provided, using a method which would include objective measurement. If more than one discipline of therapy is being provided, a qualified therapist from each of the disciplines must perform the assessment and periodic reassessments. The measurement results and corresponding effectiveness of the therapy, or lack thereof, must be documented in the clinical record. At least every 30 days a qualified therapist (instead of an assistant) must provide the needed therapy service and functionally reassess the patient. If a patient is expected to require 13 and/or 19 therapy visits, a qualified therapist (instead of an assistant) must provide all of the therapy services on the 13th visit and/or 19th therapy visit and functionally reassess the patient in accordance with § 409.44(c)(2)(i)(A). When the patient resides in a rural area or if the patient is receiving multiple types of therapy, a therapist from each discipline (not an assistant) must assess the patient after the 10th therapy visit but no later than the 13th therapy visit and after the 16th therapy visit but no later than the 19th therapy visit for the plan of care. In instances where the frequency of a particular discipline, as ordered by a physician, does not make it feasible for the reassessment to occur during the specified timeframes without providing an extra unnecessary visit or delaying a visit, then it is acceptable for the qualified therapist from that discipline to provide all of the therapy and functionally reassess the patient during the visit associated with that discipline that is scheduled to occur closest to the 14th and/or 20th Medicare-covered therapy visit, but no later than the 13th and/or 19th Medicare-covered therapy visit. When a therapy reassessment is missed, any visits for that discipline prior to the next reassessment are non-covered.
To lessen the burden on HHAs of counting visits and to reduce the risk of noncovered visits so that therapists can focus more on providing quality care for their patients, we propose to simplify § 409.44(c) to require that therapy reassessments must be performed at least once every 14 calendar days. The requirement to perform a therapy reassessment at least once every 14 calendar days would apply to all episodes regardless of the number of therapy visits provided. All other requirements related to therapy reassessments would remain unchanged. A qualified therapist (instead of an assistant), from each therapy discipline provided, must provide the ordered therapy service and functionally reassess the patient using a method which would include objective measurement. The measurement results and corresponding effectiveness of the therapy, or lack thereof, must be documented in the clinical record.
In the CY 2011 HH PPS final rule we stated that the therapy reassessment requirements in § 409.44(c) are already part of the home health CoPs, as well as from accepted standards of clinical practice, and therefore, we believe that these requirements do not create any additional burden on HHAs (75 FR 70454). As stated in the CY 2011 HH PPS final rule, longstanding CoP policy at § 484.55 requires HHAs to document progress toward goals and the regulations at § 409.44(c)(2)(i) already mandate that for therapy services to be covered in the home health setting, the services must be considered under accepted practice to be a specific, safe, and effective treatment for the beneficiary's condition. The functional assessment does not require a special visit to the patient, but is conducted as part of a regularly scheduled therapy visit. Functional assessments are necessary to demonstrate progress (or the lack thereof) toward therapy goals, and are already part of accepted standards of clinical practice, which include assessing a patient's function on an ongoing basis as part of each visit. The CY 2011 HH PPS final rule goes on to state that both the functional assessment and its accompanying documentation are already part of existing HHA practices and accepted standards of clinical practice. Therefore, we continue to believe that changing the required reassessment timeframes from every 30 days and prior to the 14th and 20th visits to every 14 calendar days does not place any new documentation requirements on HHAs.
We are revising the currently approved PRA package (OMB# 0938–1083) to describe these changes to the regulatory text.
If you comment on these information collection and recordkeeping requirements, please submit your comments electronically as specified in the
PRA-specific comments must be received on/by August 6, 2014.
Because of the large number of public comments we normally receive on
We have examined the impacts of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96–354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA, March 22, 1995; Pub. L. 104–4), Executive Order 13132 on Federalism (August 4, 1999), and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been designated as economically significant under section 3(f)(1) of Executive Order 12866, since the aggregate transfer impacts in calendar year 2015 will exceed the $100 million threshold. The net transfer impacts are estimated to be −$58 million. Furthermore, we estimate a net reduction of $21.55 million in calendar year 2015 burden costs related to the certification requirements for home health agencies and associated physicians. Lastly, this proposed rule is a major rule under the Congressional Review Act and as a result, we have prepared a regulatory impact analysis (RIA) that, to the best of our ability, presents the costs and benefits of the rulemaking. In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
Section 1895(b)(1) of the Act requires the Secretary to establish a HH PPS for all costs of HH services paid under Medicare. In addition, section 1895(b)(3)(A) of the Act requires (1) the computation of a standard prospective payment amount include all costs for HH services covered and paid for on a reasonable cost basis and that such amounts be initially based on the most recent audited cost report data available to the Secretary, and (2) the standardized prospective payment amount be adjusted to account for the effects of case-mix and wage levels among HHAs. Section 1895(b)(3)(B) of the Act addresses the annual update to the standard prospective payment amounts by the HH applicable percentage increase. Section 1895(b)(4) of the Act governs the payment computation. Sections 1895(b)(4)(A)(i) and (b)(4)(A)(ii) of the Act require the standard prospective payment amount to be adjusted for case-mix and geographic differences in wage levels. Section 1895(b)(4)(B) of the Act requires the establishment of appropriate case-mix adjustment factors for significant variation in costs among different units of services. Lastly, section 1895(b)(4)(C) of the Act requires the establishment of wage adjustment factors that reflect the relative level of wages, and wage-related costs applicable to HH services furnished in a geographic area compared to the applicable national average level.
Section 1895(b)(5) of the Act gives the Secretary the option to make changes to the payment amount otherwise paid in the case of outliers because of unusual variations in the type or amount of medically necessary care. Section 1895(b)(3)(B)(v) of the Act requires HHAs to submit data for purposes of measuring health care quality, and links the quality data submission to the annual applicable percentage increase. Also, section 1886(d)(2)(D) of the Act requires that HH services furnished in a rural area for episodes and visits ending on or after April 1, 2010, and before January 1, 2016, receive an increase of 3 percent the payment amount
Section 3131(a) of the Affordable Care Act mandates that starting in CY 2014, the Secretary must apply an adjustment to the national, standardized 60-day episode payment rate and other amounts applicable under section 1895(b)(3)(A)(i)(III) of the Act to reflect factors such as changes in the number of visits in an episode, the mix of services in an episode, the level of intensity of services in an episode, the average cost of providing care per episode, and other relevant factors. In addition, section 3131(a) of the Affordable Care Act mandates that rebasing must be phased-in over a 4-year period in equal increments, not to exceed 3.5 percent of the amount (or amounts) as of the date of enactment (2010) under section 1895(b)(3)(A)(i)(III) of the Act, and be fully implemented in CY 2017.
The update set forth in this rule applies to Medicare payments under HH PPS in CY 2015. Accordingly, the following analysis describes the impact in CY 2015 only. We estimate that the net impact of the proposals in this rule is approximately $58 million in decreased payments to HHAs in CY 2015. We applied a wage index budget neutrality factor and a case-mix weights budget neutrality factor to the rates as discussed in section III.D.4. of this proposed rule; therefore, the estimated impact of the 2015 wage index proposed in section III.D.3. of this proposed rule and the recalibration of the case-mix weights for 2015 proposed in section III.C. of this proposed rule is zero. The −$58 million impact reflects the distributional effects of the 2.2 percent HH payment update percentage ($427 million increase) and the effects of the second year of the four-year phase-in of the rebasing adjustments to the national, standardized 60-day episode payment amount, the national per-visit payment rates, and the NRS conversion factor for an impact of −2.5 percent ($485 million decrease). The $58 million in decreased payments is reflected in the last column of the first row in Table 34 as a 0.3 percent decrease in expenditures when comparing CY 2014 payments to estimated CY 2015 payments.
The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.0 million to $35.5 million in any one year. For the purposes of the RFA, we estimate that almost all HHAs are small entities as that term is used in the RFA. Individuals and states are not included in the definition of a small entity. The economic impact assessment is based on estimated Medicare payments (revenues) and HHS's practice in interpreting the RFA is to consider effects economically “significant” only if greater than 5 percent of providers reach a threshold of 3 to 5 percent or more of total revenue or total costs. The majority of HHAs' visits are Medicare-paid visits and therefore the majority of HHAs' revenue consists of Medicare payments. Based on our analysis, we conclude that the policies proposed in this rule will not result in an estimated total impact of 3 to 5 percent or more on Medicare revenue for greater than 5 percent of HHAs. Therefore, the Secretary has determined that this proposed rule will not have a significant economic impact on a substantial number of small entities. Further detail is presented in Table 34, by HHA type and location.
Executive Order 13563 specifies, to the extent practicable, agencies should assess the costs of cumulative regulations. However, given potential utilization pattern changes, wage index changes, changes to the market basket forecasts, and unknowns regarding future policy changes, we believe it is neither practicable nor appropriate to forecast the cumulative impact of the rebasing adjustments on Medicare payments to HHAs for future years at this time. Changes to the Medicare program may continue to be made as a result of the Affordable Care Act, or new statutory provisions. Although these changes may not be specific to the HH PPS, the nature of the Medicare program is such that the changes may interact, and the complexity of the interaction of these changes would make it difficult to predict accurately the full scope of the impact upon HHAs for future years beyond CY 2015. We note that the rebasing adjustments to the national, standardized 60-day episode payment rate and the national per-visit rates are capped at the statutory limit of 3.5 percent of the CY 2010 amounts (as described in the preamble in section II.C. of this proposed rule) for each year, 2014 through 2017. The NRS rebasing adjustment will be −2.82 percent in each year, 2014 through 2017.
In addition, section 1102(b) of the Act requires us to prepare a RIA if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. This proposed rule applies to HHAs. Therefore, the Secretary has determined that this rule will not have a significant economic impact on the operations of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any one year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This proposed rule is not anticipated to have an effect on state, local, or tribal governments in the aggregate, or by the private sector, of $141 million or more in CY 2015.
This proposed rule sets forth updates for CY 2015 to the HH PPS rates contained in the CY 2014 HH PPS final rule (78 FR 72304 through 72308). The impact analysis of this proposed rule presents the estimated expenditure effects of policy changes proposed in this rule. We use the latest data and best analysis available, but we do not make adjustments for future changes in such variables as number of visits or case-mix.
This analysis incorporates the latest estimates of growth in service use and payments under the Medicare HH benefit, primarily on preliminary Medicare claims from 2013. We note that certain events may combine to limit the scope or accuracy of our impact analysis, because such an analysis is future-oriented and, thus, susceptible to errors resulting from other changes in the impact time period assessed. Some examples of such possible events are newly-legislated general Medicare program funding changes made by the Congress, or changes specifically related to HHAs. In addition, changes to the Medicare program may continue to be made as a result of the Affordable Care Act, or new statutory provisions. Although these changes may not be specific to the HH PPS, the nature of the Medicare program is such that the changes may interact, and the complexity of the interaction of these changes could make it difficult to predict accurately the full scope of the impact upon HHAs.
Table 34 represents how HHA revenues are likely to be affected by the policy changes proposed in this rule. For this analysis, we used an analytic file with linked CY 2013 HH claims data (as of December 31, 2013) for dates of service that ended on or before December 31, 2013, and OASIS assessments. The first column of Table 34 classifies HHAs according to a number of characteristics including provider type, geographic region, and urban and rural locations. The third column shows the payment effects of proposed CY 2015 wage index. The fourth column shows the payment effects of the proposed CY 2015 case-mix weights. The fifth column shows the effects of the rebasing adjustments to the national, standardized 60-day episode payment rate, the national per-visit payment rates, and NRS conversion factor. The sixth column shows the effects of the CY 2015 home health payment update percentage (the home health market basket update adjusted for multifactor productivity as discussed in section III.D.1. of this proposed rule). The last column shows the payment effects of all the proposed policies.
Overall, HHAs are anticipated to experience a 0.3 percent decrease in payment in CY 2015, with freestanding HHAs anticipated to experience a 0.3 percent decrease in payments while facility-based HHAs and non-profit HHAs are anticipated to experience a 0.4 percent and a 0.6 percent increase in payments, respectively. Government-owned HHAs are anticipated to experience a 0.3 percent decrease in payments and proprietary HHAs are anticipated to experience a 0.6 percent decrease in payments. Rural HHAs are anticipated to experience a decrease in payments of 0.5 percent with rural freestanding government-owned HHAs and rural facility-based proprietary HHAs both estimated to experience a −1.1 percent decrease in payments. In contrast, rural facility-based non-profit HHAs are estimated to experience a 0.5 percent increase in payments. Urban HHAs are anticipated to experience a decrease in payments of 0.2 percent. Urban freestanding proprietary HHAs estimated to experience a 0.5 percent decrease in payments, whereas urban freestanding and facility-based non-profit HHAs are estimated to experience a 0.6 percent increase in payments for CY 2015. The overall impact in the South is estimated to be a 0.9 percent decrease in payments whereas the overall impact in the North is estimated to be a 1.1 percent increase in payments. The West South Central census region is estimated to receive a 2.4 percent decrease in payments for CY 2015; however, in contrast, the New England census region is estimated to receive a 1.5 percent increase in payments for CY 2015. Finally, HHAs with less than 100 first episodes are anticipated to experience a 0.6 percent decrease in payments compared to a 0.00 percent decrease in payments in CY 2015 for HHAs with 1,000 or more first episodes. A substantial amount of the variation in the estimated impacts of the proposals in this proposed rule in different areas of the country can be attributed to variations in the CY 2015 wage index used to adjust payments under the HH PPS and to the effects of the recalibration of the case-mix weights. Instances where the impact, due to the rebasing adjustments, is less than others can be attributed to differences in the incidence of outlier payments and LUPA episodes, which are paid using the national per-visit payment rates that are subject to payment increases due to the rebasing adjustments. We note that some individual HHAs within the same group may experience different impacts on payments than others due to the distributional impact of the CY 2015 wage index, the extent to which HHAs had episodes in case-mix groups where the case-mix weight decreased for CY 2015 relative to CY 2014, and the degree of Medicare utilization.
For CY 2015, the average impact for all HHAs due to the effects of rebasing is an estimated 2.5 percent decrease in payments. The overall impact for all HHAs as a result of this proposed rule is a decrease of approximately 0.3 percent in estimated total payments from CY 2014 to CY 2015.
In recalibrating the HH PPS case-mix weights for CY 2015, as proposed in section III.C. of this proposed rule, we considered adjusting the payment rates in section III.D.4 to make the recalibration budget neutral only with regards to our estimate of real case-mix growth between CY 2012 and the CY 2013. Section 1895(b)(3)(B)(iv) of the Act gives CMS the authority to implement payment reductions for nominal case-mix growth—changes in case-mix that are unrelated to actual changes in patient health status. If we were to implement the recalibration of the case-mix weights outlined in section III.C in a budget neutral manner only with regards to our estimate of real case-mix growth between CY 2012 and CY 2013, we estimate that the aggregate impact would be a net decrease of $410 million in payments to HHAs, resulting from a $485 million decrease due to the second year of the Affordable Care Act mandated rebasing adjustments, a $427 million increase due to the home health payment update percentage, and a $350 million decrease (−1.8 percent) due to only making the case-mix weights recalibration budget neutral with regards to our estimate of real increases in patient severity. However, instead of implementing a case-mix budget neutrality factor that only reflects our estimate of real increases in patient severity; we plan to recalibrate the case-mix weights in a fully budget-neutral manner and continue to monitor case-
With regard to the proposal discussed in section III.D.3 of this proposed rule related to our adoption of the revised OMB delineations for purposes of calculating the wage index, we believe implementing the new OMB delineations would result in wage index values being more representative of the actual costs of labor in a given area. We considered having no transition period and fully implementing the proposed new OMB delineations beginning in CY 2015. This would mean that we would adopt the revised OMB delineations on January 1, 2015. However, this would not provide any time for HHAs to adapt to the new OMB delineations. We believe that it would be appropriate to provide for a transition period to mitigate the potential for resulting short-term instability and negative impact on certain HHAs, and to provide time for HHAs to adjust to their new labor market area delineations. In determining an appropriate transition methodology, consistent with the objectives set forth in the FY 2006 SNF PPS final rule (70 FR 45041), we first considered transitioning the wage index to the revised OMB delineations over a number of years in order minimize the impact of the proposed wage index changes in a given year. However, we also believe this must be balanced against the need to ensure the most accurate payments possible, which argues for a faster transition to the revised OMB delineations. We believe that using the most current OMB delineations would increase the integrity of the HH PPS wage index by creating a more accurate representation of geographic variation in wage levels. As such, we believe that utilizing a one-year (rather than a multiple year) transition with a blended wage index in CY 2015 would strike the best balance. Second, we considered what type of blend would be appropriate for purposes of the transition wage index. We are proposing that HHAs would receive a one-year blended wage index using 50 percent of their CY 2015 wage index based on the proposed new OMB delineations and 50 percent of their CY 2015 wage index based on the FY 2014 OMB delineations. We believe that a 50/50 blend would best mitigate the negative payment impacts associated with the implementation of the proposed new OMB delineations. While we considered alternatives to the 50/50 blend, we believe this type of split balances the increases and decreases in wage index values associated with this proposal, as well as provides a readily understandable calculation for HHAs.
Next, we considered whether or not the blended wage index should be used for all HHAs or for only a subset of HHAs, such as those HHAs that would experience a decrease in their respective wage index values due to implementation of the revised OMB delineations. As required in section 1895(b)(3) of the Act, the wage index adjustment must be implemented in a budget-neutral manner. As such, if we were to apply the transition policy only to those HHAs that would experience a decrease in their respective wage index values due to implementation of the revised OMB delineations, the wage index budget neutrality factor, discussed in section III.D.4, would result in reduced base rates for all HHAs as compared to the budget neutrality factor that results from applying the blended wage index to all HHAs.
For the reasons discussed above, we believe that our proposal to use a one-year transition with a blended wage index in CY 2015 appropriately balances the interests of all HHAs and would best achieve our objective of providing relief to negatively impacted HHAs.
Section 3131(a) of the Affordable Care Act mandates that starting in CY 2014, the Secretary must apply an adjustment to the national, standardized 60-day episode payment rate and other amounts applicable under section 1895(b)(3)(A)(i)(III) of the Act to reflect factors such as changes in the number of visits in an episode, the mix of services in an episode, the level of intensity of services in an episode, the average cost of providing care per episode, and other relevant factors. In addition, section 3131(a) of the Affordable Care Act mandates that rebasing must be phased-in over a 4-year period in equal increments, not to exceed 3.5 percent of the amount (or amounts) as of the date of enactment (2010) under section 1895(b)(3)(A)(i)(III) of the Act, and be fully implemented in CY 2017. Therefore, in the CY 2014 HH PPS final rule (78 FR 77256), we finalized rebasing adjustments to the national, standardized 60-day episode payment amount, the national per-visit rates and the NRS conversion factor. As we noted in the CY 2014 HH PPS final rule, because section 3131(a) of the Affordable Care Act requires a four year phase-in of rebasing, in equal increments, to start in CY 2014 and be fully implemented in CY 2017, we do not have the discretion to delay, change, or eliminate the rebasing adjustments once we have determined that rebasing is necessary (78 FR 72283).
Section 1895(b)(3)(B) of the Act requires that the standard prospective payment amounts for CY 2015 be increased by a factor equal to the applicable HH market basket update for those HHAs that submit quality data as required by the Secretary. For CY 2015, section 3401(e) of the Affordable Care Act, requires that, in CY 2015 (and in subsequent calendar years), the market basket update under the HHA prospective payment system, as described in section 1895(b)(3)(B) of the Act, be annually adjusted by changes in economy-wide productivity. Beginning in CY 2015, section 1895(b)(3)(B)(vi)(I) of the Act, as amended by section 3401(e) of the Affordable Care Act, requires the application of the productivity adjustment described in section 1886(b)(3)(B)(xi)(II) of the Act to the HHA PPS for CY 2015 and each subsequent CY. The −0.4 percentage point productivity adjustment to the proposed CY 2015 home health market basket update (2.6 percent), is discussed in the preamble of this rule and is not discretionary as it is a requirement in section 1895(b)(3)(B)(vi)(I) of the Act (as amended by the Affordable Care Act).
We invite comments on the alternatives discussed in this analysis.
As required by OMB Circular A–4 (available at
In conclusion, we estimate that the net impact of the proposals in this rule is a decrease in Medicare payments to HHAs of $58 million for CY 2015. The $58 million decrease in estimated payments for CY 2015 reflects the distributional effects of the 2.2 percent CY 2015 HH payment update percentage ($427 million increase) and the second year of the 4-year phase-in of the rebasing adjustments required by section 3131(a) of the Affordable Care Act ($485 million decrease). Also, starting in CY 2015, certifying physicians are estimated to incur a net reduction in burden costs of $21,796,330 and HHAs are expected to incur a one-time increase in burden costs to revise the certification form of $245,397 as a result of the proposal to eliminate the face-to-face encounter narrative requirement. This analysis, together with the remainder of this preamble, provides an initial Regulatory Flexibility Analysis.
Executive Order 13132 on Federalism (August 4, 1999) 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. We have reviewed this proposed rule under the threshold criteria of Executive Order 13132, Federalism, and have determined that it will not have substantial direct effects on the rights, roles, and responsibilities of states, local or tribal governments.
Health facilities, Medicare.
Emergency medical services, Health facilities, Health professions, Medicare, and Reporting and recordkeeping requirements.
Health facilities, Health professions, Medicare, and Reporting and recordkeeping requirements.
Administrative practice and procedure, Health facilities, Medicare, and Reporting and recordkeeping requirements.
Health facilities, Medicare, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR chapter IV as set forth below:
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
The revisions read as follows:
(a)
(i) The individual needs or needed intermittent skilled nursing care, or physical therapy or speech-language pathology services as defined in § 409.42(c) of this chapter. If a patient's underlying condition or complication requires a registered nurse to ensure that essential non-skilled care is achieving its purpose, and necessitates a registered nurse be involved in the development, management, and evaluation of a patient's care plan, the physician will include a brief narrative describing the clinical justification of this need. If the narrative is part of the certification form, then the narrative must be located immediately prior to the physician's signature. If the narrative exists as an addendum to the certification form, in
(ii) Home health services are or were required because the individual is or was confined to the home, as defined in sections 1835(a) and 1814(a) of the Act, except when receiving outpatient services.
(iii) A plan for furnishing the services has been established and will be or was periodically reviewed by a physician who is a doctor of medicine, osteopathy, or podiatric medicine, and who is not precluded from performing this function under paragraph (d) of this section. (A doctor of podiatric medicine may perform only plan of treatment functions that are consistent with the functions he or she is authorized to perform under State law.)
(iv) The services will be or were furnished while the individual was under the care of a physician who is a doctor of medicine, osteopathy, or podiatric medicine.
(v) A face-to-face patient encounter, which is related to the primary reason the patient requires home health services, occurred no more than 90 days prior to the home health start of care date or within 30 days of the start of the home health care and was performed by a physician or allowed non-physician practitioner as defined in paragraph (a)(1)(v)(A) of this section. The certifying physician must also document the date of the encounter as part of the certification.
(A) The face-to-face encounter must be performed by one of the following:
(
(
(
(
(
(B) The face-to-face patient encounter may occur through telehealth, in compliance with Section 1834(m) of the Act and subject to the list of payable Medicare telehealth services established by the applicable physician fee schedule regulation.
(
(
(b)
(i) Beneficiary elected transfer; or
(ii) Discharge with goals met and/or no expectation of a return to home health care.
(2)
(c)
Secs 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395(hh)) unless otherwise indicated.
(a) Is licensed as a speech-language pathologist by the State in which the individual furnishes such services; or
(b) In the case of an individual who furnishes services in a State which does not license speech-language pathologists:
(1) Has successfully completed 350 clock hours of supervised clinical practicum (or is in the process of accumulating such supervised clinical experience);
(2) Performed not less than 9 months of supervised full-time speech-language pathology services after obtaining a master's or doctoral degree in speech-language pathology or a related field; and
(3) Successfully completed a national examination in speech-language pathology approved by the Secretary.
(a) * * *
(1) The OASIS data described at § 484.55(b)(1) and (d)(1) of this part for CMS to administer the payment rate methodologies described in §§ 484.215, 484.230, and 484.235 of this subpart, and to meet the quality reporting requirements of section 1895(b)(3)(B)(v) of the Act.
Secs. 1102, 1128I and 1871 of the Social Security Act, unless otherwise noted (42 U.S.C. 1302, 1320a–7j, and 1395hh); Pub. L. 110–149, 121 Stat. 1819.
(h)
(1) Set a penalty of zero or reduce a penalty to zero;
(2) Review the exercise of discretion by CMS to impose a civil monetary penalty; and
(3) Consider any factors in reviewing the amount of the penalty other than those specified in paragraph (b) of this section.
Secs. 1102, 1128I and 1871 of the Social Security Act (42 U.S.C. 1302, 1320a–7j, and 1395hh).
(b) * * *
(13) Except as provided at paragraph (d)(12) of this section for SNFs, NFs and HHAs, the finding of noncompliance leading to the imposition of enforcement actions specified in § 488.406 or § 488.820 of this chapter, but not the determination as to which sanction was imposed. The scope of review on the imposition if a civil money penalty is specified in § 488.438(e) and § 488.845(h) of this chapter.
(14) * * *
(i) The range of civil money penalty amounts that CMS could collect (for SNFs or NFs, the scope of review during a hearing on the imposition of a civil money penalty is set forth in § 488.438(e) of this chapter and for HHAs, the scope of review during a hearing on the imposition of a civil money penalty is set forth in § 488.845(h) of this chapter); or
(c) * * *
(1) The scope of review is as specified in § 488.438(e) and § 488.845(h) of this chapter; and
(2) CMS' determination as to the level of noncompliance of a SNF, NF or HHA must be upheld unless it is clearly erroneous.
Coast Guard, DHS.
Final rule.
This final rule makes non-substantive changes throughout Title 33 of the Code of Federal Regulations. The purpose of this final rule is to make conforming amendments and technical corrections to Coast Guard navigation and navigable waters regulations. These changes will have no substantive effect on the regulated public.
This final rule is effective July 7, 2014.
Documents mentioned in this preamble as being available in the docket are part of docket USCG–2014–0410 and are available for inspection or copying at the Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet by going to
If you have questions on this final rule, call or email Mr. Paul Crissy, Coast Guard; telephone 202–372–1093, email
The Coast Guard did not publish a notice of proposed rulemaking for this final rule. Under 5 U.S.C. 553(b)(A), this final rule is exempt from notice and comment rulemaking requirements because the changes in this final rule involve rules of agency organization, procedure, or practice. Also, notice and comment procedures are unnecessary under 5 U.S.C. 553(b)(B) because this final rule consists only of corrections and editorial, organizational, and conforming amendments; these changes will have no substantive effect on the public. Under 5 U.S.C. 553(d)(3), we find that, for the same reasons, good cause exists for making this final rule effective upon publication in the
Each year, the printed edition of Title 33 of the Code of Federal Regulations (CFR) is re-codified on July 1st. This final rule, which becomes effective July 7, 2014 makes technical and editorial corrections throughout Title 33. This final rule does not create any substantive requirements. This final rule is issued under the authority of 5 U.S.C. 552, 553, App. 2, 14 U.S.C. 2, 631, 632, and 633; 33 U.S.C. 471, 499; 49 U.S.C. 101, 322; Department of Homeland Security Delegation No. 0170.1.
This final rule amends various internal Coast Guard office titles and office symbols throughout Title 33. These changes reflect the nomenclature that was implemented by the Deputy Commandant for Operations 3.0 realignment, effective May 6, 2012. Functional requirements, organizations and reporting structures are not affected by this final rule.
This final rule also updates various addresses for Coast Guard offices throughout Title 33 in order to conform to new mailing addresses that came into effect upon the relocation of Coast Guard Headquarters to the Saint Elizabeths campus in 2013. For a list of each address change, see the Table of Changes in the docket for this rulemaking.
This final rule amends 33 CFR 3.05–20 to correct the location of the U.S. Coast Guard's Sector Southeastern New England office to reflect Woods Hole, MA. After the Coast Guard's sector realignment occurred in 2007, the location of Coast Guard Sector Southeastern New England was intended to be Providence, RI. However, this relocation never occurred and Sector Southeastern New England's office location remains in Woods Hole, MA.
This final rule amends 33 CFR 3.40–28 to correct the location of the U.S. Coast Guard's Sector Houston-Galveston's office to reflect Houston, TX.
This final rule amends 33 CFR 27.3, Table 1 to update statutory citations that changed as a result of recodification. 46 U.S.C. App. 1505 was recodified at 46 U.S.C. 80509; 46 U.S.C. App. 1712(a) was recodified at 46 U.S.C. 41107 and 46 U.S.C. 1805 was recodified at 46 U.S.C. 70305. This rule does not change the adjusted maximum penalty amounts contained in Table 1 of 33 CFR 27.3.
This final rule amends 33 CFR 52.21(a) by changing the title of the reviewing authority for the correction of military records to reflect the Coast Guard's transfer from the Department of Transportation to the Department of Homeland Security.
This final rule amends 33 CFR 80.160(c) to redefine a specific COLREGS demarcation line to reflect the updated National Oceanic and Atmospheric Administration (NOAA) survey necessitated by the destruction of the Fire Island Inlet Breakwater Light by Hurricane Sandy.
This final rule amends 33 CFR 80.712 by redesignating paragraph (a) as paragraph (b). A review of the COLREGS demarcation line found that paragraphs (a) and (b) both described the Stono Inlet demarcation line, while there was no existing description of the line across Lighthouse Inlet. A new paragraph (a) is added to describe the line across Lighthouse Inlet using the latitude and longitude coordinates for aids to navigation depicted by NOAA on charts. Additionally, new paragraph (b) now
This final rule amends 33 CFR 80.815(b) by adding the latitude and longitude coordinates for the reference points Mobile Point Light and Dauphin Island Channel Light 1 and by removing “No.” from the title of the Dauphin Island Channel Light 1. This change conforms the name to the one published in the Light List.
This final rule amends 33 CFR 80.1420 by adding the latitude and longitude coordinates for the reference points for Barbers Point Light and Diamond Head Light.
This final rule amends 33 CFR 80.1430 by adding the latitude and longitude coordinates for the reference point Pyramid Rock Light.
This final rule amends 33 CFR 80.1440 to update the name of a light listed as a reference point. The light previously referred to as “Hanapepe Light” is now referred to as “Puolo Point Light.” The name change reflects the updated name in the Light List.
This final rule amends 33 CFR 80.1450 to add the longitude and latitude coordinates for the reference point Kukii Point Light. It also corrects the reference to “Nawiliwili Harbor Breakwater Light” because that light has been disestablished. The new text has been updated to read as follows: “A line drawn from the seaward extremity of Nawiliwili Harbor breakwater to 21°57′23.8″ N., 159°20′52.7″ W. (Kukii Point Light).”
This final rule amends 33 CFR 80.1460 to update the names of the lights listed as reference points. The lights previously listed as “Kahului Harbor Entrance East Breakwater Light” and “Kahului Harbor Entrance West Breakwater Light” are amended to reflect the names listed in the Light List, which are “Kahului Entrance Breakwater Light 4” and “Kahului Entrance Breakwater Light 3.” We are also amending 33 CFR 80.1460 by adding the latitude and longitude coordinates for Kahului Entrance Breakwater Light 4 and Kahului Entrance Breakwater Light 3.
This final rule amends 33 CFR 80.1470 to add the longitude and latitude coordinates for the reference point Kawaihae Light.
This final rule makes a spelling correction to 33 CFR 89.25(h). Previously, “Chattahoochee” was misspelled. This final rule corrects the spelling of this river.
This final rule corrects the authority citation in 33 CFR 110.1 by deleting the references to 33 U.S.C. 2030 and 2035, which were repealed in 2004 by Section 303(a) of the Coast Guard and Maritime Transportation Act of 2004 (Pub. L. 108–293). The authority to issue Inland Navigation Rules can be found in section 3 of the Inland Navigational Rules Act of 1980, as amended by section 303(b) of the Coast Guard and Maritime Transportation Act of 2004 (33 U.S.C. 2071). We are also amending 33 CFR 110.1(a) by removing the repealed statutes and inserting the correct citation to the Inland Navigation Rules, 33 CFR Chapter I, Subchapter E.
This final rule removes 33 CFR 110.25(f) and its Note, which are duplicative of 33 CFR 110.26.
This final rule amends 33 CFR 110.59(c) to reflect the correct coordinates of the Northport Harbor anchorage in Eastern Long Island, NY. The previous language in this paragraph erroneously identified coordinates that are outside of Northport Harbor. We are also adding a minor clarification to the coordinates by indicating north latitude and west longitude.
This final rule amends 33 CFR 110.72d to represent latitude and longitude coordinates in a format that includes degrees, minutes, and seconds.
This final rule amends 33 CFR 117.35 by replacing the word “closure” with the word “deviation” because not all changes are closures. Requests for temporary changes to the operating schedule of a drawbridge require the approval of the cognizant District Commander. The word “deviation” is replacing the word “closure” to reflect the requirement in the regulation that all changes, including closures, must be authorized.
This final rule amends 33 CFR 117.143 by adding the commonly used name “Eight Mile Road” to describe the San Joaquin County Highway Bridge.
This final rule amends 33 CFR 117.233 by updating the name of the bridge referenced in this section because of a change in ownership. The bridge formerly known as the “Conrail Bridge” in this section is now named the “Norfolk Southern Railroad Bridge.”
This final rule amends 33 CFR 117.243(a)(3) by updating the telephone number that owners or operators of vessels can call to get train operational information.
This final rule amends 33 CFR 117.531(b) by changing the mile mark location from “mile 3.5” to “mile 1.9.” Under the standard convention for bridge marking locations on U.S. rivers, mile markers reflect the distance to the mouth of the applicable river. The “3.5”mile mark previously listed reflected the distance to the ocean. The corrected “1.9” mile mark reflects the distance to the mouth of the Piscataqua River.
This final rule amends 33 CFR 117.531(c) by changing the mile mark location from “mile 4.0” to “mile 2.5.” Under the standard convention for bridge markings locations on U.S. rivers, mile markers reflect the distance to the mouth of the applicable river. The “4.0” mile mark previously listed reflected the distance to the ocean. The corrected “2.5” mile mark reflects the distance to the mouth of the Piscataqua River.
This final rule amends 33 CFR 117.997(a)(11) by updating the telephone numbers that owners or operators of vessels can call to get bridge operational information.
This final rule amends 33 CFR 118.3(c) by updating the address of the Federal Highway Administration.
This final rule amends 33 CFR 126.21(d) to correct a citation. The reference to 33 CFR 126.15(g) for the use of maintenance stores and supplies is incorrect. 33 CFR 126.15(g) does not exist. We have amended this section by removing the incorrect citation and inserting the correct citation: 33 CFR 126.15(b)(5).
This final rule amends 33 CFR 155.1030(i)(1) by reinserting paragraph (c)(11) and removing paragraph (c)(9). In the 2013 printed edition of Title 33 CFR, paragraph (c)(11) was properly included in this section. On September 30, 2013, however, a final rule was published that amended 33 CFR 155.1030(i)(1) through (3) solely for the purpose of authorizing electronic copies of Vessel Response Plans (78 FR 60100, 60122). Because of an administrative error in that final rule, paragraph (c)(11) was unintentionally removed from 33 CFR 155.1030(i)(1), and we are correcting that error by reinserting (c)(11). We are also removing paragraph(c)(9) from 33 CFR 155.1030(i)(1) because that specific section of the VRP plan is a requirement for unmanned tank barges and is already included under 33 CFR 155.1030(i)(2).
This final rule amends 33 CFR 155.1070(a)(2) by removing the words “and to document the annual review required by this paragraph (a).” When this final rule was published on September 30, 2013 (78 FR 60100, 60105), the Coast Guard explained that it was removing the requirement pertaining to the reporting of annual reviews from 33 CFR 155.1070(a), consistent with 33 CFR 151.28(h) and 155.5070(a). Because of an administrative error, however, the regulation was not amended as described. We are correcting that error in this final rule by removing the words “and to document the annual review required by this paragraph (a).”
This final rule amends 33 CFR 155.5020(5)(i) by removing the word “and” and adding the word “or” in its place. 33 CFR 155.5020 provides a list of definitions applicable to 33 CFR Subpart J. Changing “and” to “or” under the definition for “Contract or other approved means” provided in 33 CFR 155.5020(5)(i) more accurately reflects the substance of the regulations contained in 33 CFR Subpart J. For example, in 33 CFR 155.5020(5)(ii)–(v), the regulation uses the phrase “petroleum oils as fuel or cargo.” And, in 33 CFR 155.5035(i)(7),(9), the regulation uses the phrase “petroleum oils as fuel or cargo.” Finally, in 33 CFR 155.5050(e)(1) and (f),(l),(m),(n), the regulation uses the phrase “petroleum oil as fuel or cargo.” We are, therefore, correcting 33 CFR 155.5020(5)(i) by removing the word “and” and adding the word “or” in its place.
This final rule amends the table for 33 CFR 155.5050(p) by removing the word “and” and adding the word “or” in its place. 33 CFR 155.5050(p) is a table that summarizes the VRP required response resources for nontank vessels carrying groups I through IV petroleum oil. Changing the table's first column header from “Nontank vessel's fuel and cargo oil capacity” to “Nontank vessel's fuel or cargo oil capacity” more accurately reflects the substance of the regulations contained in 33 CFR Subpart J. For example, in 33 CFR 155.5020(5)(ii)–(v), the regulation uses the phrase “petroleum oils as fuel or cargo.” And, in 33 CFR 155.5035(i)(7),(9), the regulation uses the phrase “petroleum oils as fuel or cargo.” Finally, in 33 CFR 155.5050(e)(1) and (f),(l),(m),(n), the regulation uses the phrase “petroleum oil as fuel or cargo.” The table's first column header is, therefore, incorrect. We are correcting it in this rule by removing the word “and” and adding the word “or” in its place.
This final rule amends the Table in 33 CFR 161.12(c) to correct a typographical error in the longitude position for the waters east and north of a line drawn from the southern tangent of Sakonnet Point, Rhode Island. The text has been updated with the correct longitude coordinate as follows: “longitude 71°11.70′ W.”
This final rule amends 33 CFR 161.12(d)(5). Because of a clerical error, this section mistakenly cites to 160.203 for the definition of “hazardous condition.” This section, however, does not include a definition for “hazardous condition.” Therefore, we are correcting that error to reflect that the citation for the definition of “hazardous condition” is found in 33 CFR 160.204.
This final rule revises 33 CFR 161.55(c) by separating the requirements pertaining to “meeting and overtaking” and those for “crossing or operating” into separate sub-paragraphs. By restructuring the regulation into separate sub-paragraphs, we are making it easier for users of VTS Puget Sound to understand that “meeting and overtaking within 2,000 yards” and “crossing or operating within 2,000 yards” are to be treated separately. These changes are editorial and do not alter the VTS Special Area Operating Requirements prescribed in 33 CFR 161.55(c).
This final rule amends 33 CFR 165.117(a)(3)(ii) to include the geographic coordinates forming the loci for the regulated navigation areas, safety and security zones for Neptune Deepwater Port. The Coast Guard published an NPRM on April 1, 2010 (75 FR 16370), that proposed establishing regulated navigation areas and safety and security zones around the recently constructed Neptune Deepwater Port Facility. No comments or suggestions were made to the proposed rule, and on August 20, 2010 (75 FR 51374), the Coast Guard published a final rule. Due to an administrative error, however, 33 CFR 165.117(a)(3)(ii) was not incorporated into regulation. We are correcting that error by inserting the geographic coordinates forming the loci for the regulated navigation areas, safety and security zones for Neptune Deepwater Port, at 33 CFR 165.117(a)(3)(ii).
This final rule amends 33 CFR 165.122(b)(6) by removing the citation to the repealed statutes and inserting the correct citation to the Inland Navigation Rules.
This final rule amends the Table to 33 CFR 165.151 to correct the order of coordinates included in the Table.
This final rule amends 33 CFR 165.813(b)(5) by updating the telephone number that vessel operators can call to request permission to enter or operate inside moving security zones around cruise ships in the ports of Houston or Galveston, Texas.
This final rule amends 33 CFR 165.814(b)(3) by updating the telephone number that vessel operators can call to request permission to enter or operate inside certain security zones in the Captain of the Port Houston—Galveston zone of responsibility.
This rule redesignates 33 CFR 165.1201 as 33 CFR 165.1188. In 2013, this regulation was published with an incorrect section number within 33 CFR Subpart F. Because there is no Twelfth Coast Guard District, it is necessary to redesignate the regulation within the Eleventh Coast Guard District's portion of 33 CFR Subpart F.
This final rule amends 33 CFR 165.1319 by updating the name from “Safety Zone Regulations, Seafair Blue Angels Air Show Performance, Seattle, WA” to “Safety Zone Regulations, Seafair Air Show Performance, Seattle, WA.”
This final rule amends 33 CFR 167.1322(b)(8) by formatting the description of the precautionary area “ND” so that it matches the International Maritime Organization's (IMO) description of the same precautionary area, as set forth in IMO COLREG .2/Circ. 51 of May 31, 2002. This rule does not change the coordinates themselves; it merely connects the first and last coordinate by using the shoreline as a natural boundary.
This final rule amends 33 CFR 183.5 by updating the address for the American Boat and Yacht Council, Inc. We are also amending this section by replacing the text “Naval Publications Forms Center, Customer Service—Code 1052, 5801 Tabor Avenue, Philadelphia, PA 19120” with “Military Specifications and Standards, Standardization Documents Order Desk, Building 4D, 700 Robbins Avenue, Philadelphia, PA 19111–5094;
We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on these statutes or E.O.s.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) 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. The provisions of this final rule are technical and non-substantive; they will have no substantive effect on the public and will impose no additional costs. This final rule is not a significant regulatory action under section 3(f) of E.O. 12866 as supplemented by E.O. 13563, and does not require an assessment of potential
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), rules exempt from the notice and comment requirements of the Administrative Procedure Act are not required to examine the impact of the rule on small entities. Nevertheless, we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
There is no cost to this final rule, and we do not expect it to have an impact on small entities because the provisions of this rule are technical and non-substantive. It will have no substantive effect on the public and will impose no additional costs. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.
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 so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Mr. Paul Crissy by phone at 202–372–1093 or via email at
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).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under E.O. 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 have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.
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 1 year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This final rule will not cause a taking of private property or otherwise have taking implications under E.O. 12630 (“Governmental Actions and Interference with Constitutionally Protected Property Rights”).
This final rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988 (“Civil Justice Reform”), to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this final rule under E.O. 13045 (“Protection of Children from Environmental Health Risks and Safety Risks”). This final rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This final rule does not have tribal implications under E.O. 13175 (“Consultation and Coordination with Indian Tribal Governments”), because it would 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.
We have analyzed this final rule under E.O. 13211 (“Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”). We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of OMB's Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.
The National Technology Transfer and Advancement Act (15 U.S.C. 272 Note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This final 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 (42 U.S.C. 4321–4370f), and have concluded 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 is categorically excluded under section 2.B.2, figure 2–1, paragraphs (34)(a) and (b) of the Instruction. This final rule involves regulations that are editorial or procedural, or that concern internal agency functions or organizations. An environmental analysis checklist and a categorical exclusion determination are
Administrative practice and procedure, Authority delegations (Government agencies), Freedom of information, Penalties.
Organization and functions (Government agencies).
Armed forces reserves.
Decorations, medals, awards.
Navigation (water), Vessels.
Aircraft, Signs and symbols, Vessels.
Authority delegations (Government agencies), Claims.
Communications equipment, Marine safety, Radio, Telephone, Vessels.
Administrative practice and procedure, Penalties.
Administrative practice and procedure, Military personnel.
Administrative practice and procedure, Archives and records, Military personnel.
Continental shelf, Navigation (water), Reporting and recordkeeping requirements.
Navigation (water), Treaties, Waterways.
Navigation (water), Reporting and recordkeeping requirements, Treaties.
Navigation (water), Waterways.
Navigation (water), Reporting and recordkeeping requirements, Waterways.
Administrative practice and procedure, Marine safety, Reporting and recordkeeping requirements, Vessels.
Maritime security, Reporting and recordkeeping requirements, Security measures, Vessels.
Maritime security, Reporting and recordkeeping requirements, Security measures.
Anchorage grounds.
Bridges.
Passenger vessels, Reporting and recordkeeping requirements, Security measures, Terrorism.
Explosives, Harbors, Hazardous substances, Reporting and recordkeeping requirements.
Fire prevention, Harbors, Hazardous substances, Natural gas, Reporting and recordkeeping requirements, Security measures.
Harbors, Reporting and recordkeeping requirements, Security measures, Terrorism.
Administrative practice and procedure, Continental shelf, Insurance, Oil pollution, Reporting and recordkeeping requirements.
Continental shelf, Investigations, Marine safety, Occupational safety and health, Penalties, Reporting and recordkeeping requirements.
Citizenship and naturalization, Continental shelf, Employment, Reporting and recordkeeping requirements.
Continental shelf, Marine safety, Occupational safety and health.
Administrative practice and procedure, Environmental protection, Harbors, Petroleum.
Administrative practice and procedure, Oil pollution, Penalties, Reporting and recordkeeping requirements, Water pollution control.
Hazardous substances, Oil pollution, Reporting and recordkeeping requirements, Water pollution control.
Alaska, Fire prevention, Hazardous substances, Oil pollution, Reporting and recordkeeping requirements.
Alaska, Hazardous substances, Oil pollution, Reporting and recordkeeping requirements.
Cargo vessels, Oil pollution, Reporting and recordkeeping requirements.
Administrative practice and procedure, Harbors, Oil pollution, Penalties, Reporting and recordkeeping requirements, Water pollution control.
Alaska, Reporting and recordkeeping requirements, Sewage disposal, Vessels.
Administrative practice and procedure, Harbors, Hazardous materials transportation, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Vessels, Waterways.
Harbors, Navigation (water), Reporting and recordkeeping requirements, Vessels, Waterways.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
Harbors, Marine safety, Navigation (water), Waterways.
Endangered and threatened species, Marine mammals, Navigation (water), Radio, Reporting and recordkeeping requirements, Vessels, Water pollution control.
Intergovernmental relations, Marine safety, Reporting and recordkeeping requirements.
Marine safety, Reporting and recordkeeping requirements.
Labeling, Marine safety, Reporting and recordkeeping requirements.
Marine safety.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 1, 3, 8, 13, 19, 23, 25, 26, 27, 51, 52, 67, 80, 81, 84, 89, 96, 104, 105, 110, 114, 116, 117, 118, 120, 126, 127, 128, 135, 140, 141, 144, 148, 151, 153, 154, 155, 156, 157, 158, 159, 160, 161, 164, 165, 167, 169, 174, 179, 181, and 183 as follows:
5 U.S.C. 552, 553, App. 2; 14 U.S.C. 2, 631, 632, and 633; 33 U.S.C. 471, 499; 49 U.S.C. 101, 322; Department of Homeland Security Delegation No. 0170.1.
5 U.S.C. 552; 14 U.S.C. 633, sec. 6(b)(1), 80 Stat. 937 (49 U.S.C. 1655(b)(1)); 49 CFR 1.46(b).
14 U.S.C. 633; 49 CFR 1.46(k).
14 U.S.C. 92 & 93; Pub. L. 107–296, 116 Stat. 2135; Department of Homeland Security Delegation No. 0170.1, para. 2(23).
14 U.S.C. 633.
Secs. 500, 633, 63 Stat. 536, 545, sec. 6(b)(1), 80 Stat. 938; 14 U.S.C. 500, 633; 49 U.S.C. 1655(b); 49 CFR 1.4 (a)(2) and (f).
Sec. 1, 64 Stat. 1120, sec. 6(b)(1), 80 Stat. 937; 46 U.S.C. note prec. 1, 49 U.S.C. 108; Department of Homeland Security Delegation No. 0170.
Secs. 638, 639, 63 Stat. 546; 14 U.S.C. 638, 639; E.O. 10707; 3 CFR, 1954–1958 Comp., p. 364.
14 U.S.C. 633; 49 CFR 1.45(a); 49 CFR 1.45(b); 49 CFR 1.46(b), unless otherwise noted.
(b) * * *
(3) Commandant (CG–0945), Attn: Office of Claims and Litigation, U.S. Coast Guard Stop 7213, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593–7213.
14 U.S.C. 2, 33 U.S.C. 1201–1208; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170. Rule 1, International Regulations for the Prevention of Collisions at Sea.
Secs. 1–6, Pub. L. 101–410, 104 Stat. 890, as amended by Sec. 31001(s)(1), Pub. L. 104–134, 110 Stat. 1321 (28 U.S.C. 2461 note); Department of Homeland Security Delegation No. 0170.1, sec. 2 (106).
10 U.S.C. 1553; Pub. L. 107–296, 116 Stat. 2135.
10 U.S.C. 1552; 14 U.S.C. 425.
14 U.S.C. 85, 633; 43 U.S.C. 1333; Department of Homeland Security Delegation No. 0170.1.
14 U.S.C. 2; 14 U.S.C. 633; 33 U.S.C. 151(a).
(a) A line drawn from the easternmost tip of Folly Island to 32°41′37″ N., 079°53′03″ W. (abandoned lighthouse tower) on the northside of Lighthouse Inlet; thence west to the shoreline of Morris Island.
(b) A line drawn from the seaward tangent of Folly Island across Stono River to the shoreline of Sandy Point.
A line drawn from 21°17′46.9″ N., 158°06′22.2′ W. (Barbers Point Light) to 21°15′20.5″ N., 157°48′34.3″ W. (Diamond Head Light).
A line drawn from 21°27′44.1″ N., 157°45′48.6″ W. (Pyramid Rock Light), across Kaneohe Bay through the center of Mokolii Island to the shoreline.
A line drawn from 21°53′34.3″ N., 159°36′15.6″ W. (Puolo Point Light) to 21°53′49.0″ N., 159°35′27.2″ W. (Hanapepe Breakwater Light 2).
A line drawn from the seaward extremity of Nawiliwili Harbor Breakwater Light to 21°57′23.8″ N., 159°20′52.7″ W. (Kukii Point Light).
A line drawn from 20°54′04.1″ N., 156°28′26.8″ W. (Kahului Entrance Breakwater Light 4), to 20°54′02.3″ N., 156°28′17.4″ W. (Kahului Entrance Breakwater Light 3).
A line drawn from 20°02′29.1″ N., 155°49′58.2″ W. (Kawaihae Light), to the seaward extremity of the Kawaihae South Breakwater.
33 U.S.C. 1607; E.O. 11964; 49 CFR 1.46.
33 U.S.C. 2071; Department of Homeland Security Delegation No. 0170.1.
33 U.S.C. 2071; 49 CFR 1.46(n)(14).
(h) Chattahoochee River.
46 U.S.C. 3201 et. seq.; 46 U.S.C. 3103; 46 U.S.C. 3316; 33 U.S.C. 1231; 49 CFR 1.45; 49 CFR 1.46.
(b) If you are not satisfied with the organization's decision, you may appeal directly to Commandant (CG–CVC). You must make your appeal in writing, including any documentation and evidence you wish to be considered. You may ask Commandant (CG–CVC) to stay the effect of the appealed decision while it is under review.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.1.
33 U.S.C. 1226, 1231; 46 U.S.C. 70103; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.1.
33 U.S.C. 471, 1221 through 1236, 2071; 33 CFR 1.05–1; Department of Homeland Security Delegation No. 0170.1.
(a) The areas described in subpart A of this part are designated as special anchorage areas for the purposes of rule 30 (33 CFR 83.30) and rule 35 (33 CFR 83.35) of the Inland Navigation Rules, 33 CFR Chapter I, Subchapter E. Vessels of less than 20 meters in length; and barges, canal boats, scows, or other nondescript craft, are not required to sound signals required by rule 35 of the Inland Navigation Rules. Vessels of less than 20 meters are not required to exhibit anchor lights or shapes required by rule 30 of the Inland Navigation Rules.
(c)
All waters on the southwest portion of the Ashley River encompassed within the following points: beginning at 32°46′42.7″ N., 079°57′19.3″ W.; thence southwest to 32°46′38.0″ N., 079°57′24.0″ W.; thence southeast to 32°46′32.0″ N., 079°57′15.5″ W.; thence southeast to 32°46′29.0″ N., 079°57′00.9″ W.; thence back to origin following the southwest boundary of the Ashley River Channel. All coordinates are North American Datum 1983.
33 U.S.C. 401, 406, 491, 494, 495, 499, 502, 511, 513, 514, 516, 517, 519, 521, 522, 523, 525, 528, 530, 533, and 535(c), (e), and (h); 14 U.S.C. 633; 49 U.S.C. 1655(g); Pub. L. 107–296, 116 Stat. 2135; 33 CFR 1.05–1 and 1.01–60, Department of Homeland Security Delegation Number 0170.1.
33 U.S.C. 401, 521.
33 U.S.C. 499; 33 CFR 1.05–1; and Department of Homeland Security Delegation No. 0170.1.
(c) * * *
(2) The request must describe the reason for the deviation and the dates and times scheduled for the start and end of the change.
(f) If the authorized deviation period for an event is broken into separate time periods on the same day or on consecutive days, the drawbridge must provide openings for navigation between authorized schedule changes.
(a) The draw of the Norfolk Southern Railroad Bridge, mile 8.0 at Laurel, will open on signal if at least 4 hours notice is given.
33 U.S.C. 494; 14 U.S.C. 85, 633; Department of Homeland Security Delegation No. 0170.1.
33 U.S.C. 1231; Department of Homeland Security Delegation No. 0170.
33 U.S.C. 1231; 49 CFR 1.46.
33 U.S.C. 1231; 46 U.S.C. Chapter 701; Department of Homeland Security Delegation No. 0170.1.
33 U.S.C. 1231; 49 CFR 1.46.
33 U.S.C. 2701–2719; E.O. 12777, 56 FR 54757; Department of Homeland Security Delegation No. 0170.1, para. 2(80).
43 U.S.C. 1333, 1348, 1350, 1356; Department of Homeland Security Delegation No. 0170.1.
43 U.S.C. 1356; 46 U.S.C. 70105; 49 CFR 1.46(z).
43 U.S.C. 1333d; 46 U.S.C. 3102(a); 46 CFR 1.46.
33 U.S.C. 1504; Department of Homeland Security Delegation No. 0170.1 (75).
33 U.S.C. 1321, 1902, 1903, 1908; 46 U.S.C. 6101; Pub. L. 104–227 (110 Stat. 3034); Pub. L. 108–293 (118 Stat. 1063), § 623; E.O. 12777, 3 CFR, 1991 Comp. p. 351; DHS Delegation No. 0170.1, sec. 2(77).
14 U.S.C. 633; 33 U.S.C. 1321, 1903, 1908; 42 U.S.C. 9615; 46 U.S.C. 6101; E.O. 12580, 3 CFR, 1987 Comp., p. 193; E.O. 12777, 3 CFR, 1991 Comp., p. 351; Department of Homeland Security Delegation No. 0170.1.
33 U.S.C. 1225, 1231, 1321(j)(1)(C), (j)(5), (j)(6), and (m)(2); sec. 2, E.O. 12777, 56 FR 54757; Department of Homeland Security Delegation No. 0170.1. Subpart F is also issued under 33 U.S.C. 2735. Vapor control recovery provisions of Subpart P are also issued under 42 U.S.C. 7511b(f)(2).
Gulf Coast Tier 1 is higher due to greater potential spill size and frequency in that area, and it is assumed that dispersant stockpiles would be centralized in the Gulf area. Alternative application ratios of peer-reviewed scientific evidence of improved capability may be considered upon submission to Coast Guard Headquarters. Contact Commandant (CG–RI), Attn: Office of Incident Management and Preparedness, U.S. Coast Guard Stop 7516, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593–7516; telephone 202–372–2234.
3 U.S.C. 301 through 303; 33 U.S.C. 1225, 1231, 1321(j), 1903(b), 2735; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; Department of Homeland Security Delegation No. 0170.1. Section 155.480 also issued under section 4110(b) of Pub. L. 101.380.
(p) * * *
33 U.S.C. 1225, 1231, 1321(j); 46 U.S.C. 3703, 3703a, 3715; E.O. 11735, 3 CFR 1971–1975 Comp., p. 793; Department of Homeland Security Delegation No. 0170.1.
33 U.S.C. 1903; 46 U.S.C. 3703, 3703a (note); Department of Homeland Security Delegation No. 0170.1. Subparts G, H, and I are also issued under section 4115(b), Pub. L. 101–380, 104 Stat. 520; Pub. L. 104–55, 109 Stat. 546.
33 U.S.C. 1903(b), 1905(c); 49 CFR 1.46.
33 U.S.C. 1322(b)(1); 49 CFR 1.45(b). Subpart E also issued under authority of sec. 1(a)(4), Pub. L. 106–554, 114 Stat. 2763; Department of Homeland Security Delegation No. 0170.1.
33 U.S.C. 1223, 1231; 46 U.S.C. Chapter 701; Department of Homeland Security Delegation No. 0170.1. Subpart C is also issued under the authority of 33 U.S.C. 1225 and 46 U.S.C. 3715.
(d) Any person who receives an unfavorable ruling on an appeal taken under paragraph (c) of this section, may appeal to the Commandant (CG–5P), Attn: Assistant Commandant for Prevention, U.S. Coast Guard Stop 7501, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593–7501. The appeal must be in writing, except as allowed under paragraph (e) of this section. The Area Commander forwards the appeal, all the documents and evidence which formed the record upon which the order or direction was issued or the ruling under paragraph (c) of this section was made, and any comments which might be relevant, to the Assistant Commandant for Prevention. A copy of this documentation and evidence is made available to the appellant. The appellant is afforded 5 working days from the date of receipt to submit rebuttal materials to the Assistant Commandant for Prevention. The decision of the Assistant Commandant for Prevention is based upon the materials submitted, without oral argument or presentation. The decision of the Assistant Commandant for Prevention is issued in writing and constitutes final agency action.
33 U.S.C. 1223, 1231; 46 U.S.C. 70114, 70119; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(c) * * *
(c) * * *
(3) A vessel of 100 meters or more in length is exempt from the provisions set forth in § 161.13(b)(3) of this part.
(4) Approval will not be granted for:
(i) A vessel of 100 meters or more in length to meet or overtake a vessel of 40,000 dead weight tons or more;
(ii) A vessel of 40,000 dead weight tons or more to meet or overtake a vessel of 100 meters or more in length;
(iii) A vessel of 100 meters or more in length to cross or operate within 2,000 yards (except when crossing astern) of a vessel of 40,000 deadweight tons or more; or
(iv) A vessel of 40,000 dead weight tons or more to cross or operate within 2,000 yards (except when crossing astern) of a vessel of 100 meters or more in length.
33 U.S.C. 1222(5), 1223, 1231; 46 U.S.C. 2103, 3703; Department of Homeland Security Delegation No. 0170.1 (75). Sec. 164.13 also issued under 46 U.S.C. 8502. Sec. 164.61 also issued under 46 U.S.C. 6101.
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, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a) * * *
(3)
(ii) The geographic coordinates forming the loci for the regulated navigation areas, safety, and security zones for Neptune Deepwater Port are: 42°29′12.3″ N., 70°36′29.7″ W.; and 42°27′20.5″ N., 70°36′07.3″ W. (NAD 83).
(iii) [Reserved]
(j) * * *
33 U.S.C. 1223; Department of Homeland Security Delegation No. 0170.0.
(b) * * *
(8) Precautionary area “ND,” which is bounded by a line connecting the following geographical positions:
Thence along the shoreline to the point of beginning (48°11.00′ N.; 123°06.58′ W.).
33 U.S.C. 1230(d), 1231; 46 U.S.C. 70115, Department of Homeland Security Delegation No. 0170.1.
46 U.S.C. 6101 and 12302; Department of Homeland Security Delegation No. 0170.1 (92).
43 U.S.C. 1333; 46 U.S.C. 4302, 4307, 4310, and 4311; Pub. L. 103–206, 107 Stat. 2439; 49 CFR 1.46.
46 U.S.C. 4302; Department of Homeland Security Delegation No. 0170.1 (92).
46 U.S.C. 4302; Pub. L. 103–206, 107 Stat. 2439; 49 CFR 1.46.