Agricultural Marketing Service
Animal and Plant Health Inspection Service
Commodity Credit Corporation
Forest Service
Grain Inspection, Packers and Stockyards Administration
Antitrust Division
Committee for Purchase From People Who Are Blind or Severely Disabled
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Defense Acquisition Regulations System
Federal Energy Regulatory Commission
Presidential Documents
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Land Management Bureau
Reclamation Bureau
Antitrust Division
Parole Commission
Employment and Training Administration
Occupational Safety and Health Administration
Federal Aviation Administration
Federal Railroad Administration
Federal Transit Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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.
Commodity Credit Corporation and Farm Service Agency, USDA.
Final rule.
The Farm Service Agency (FSA) is amending the Biomass Crop Assistance Program (BCAP) regulations to implement changes required by the Agricultural Act of 2014 (the 2014 Farm Bill). BCAP provides financial assistance to producers who establish, collect, harvest, store, and transport biomass crops. The 2014 Farm Bill reauthorizes BCAP, with certain changes that are implemented in this rule. The changes include reducing the payment rate per ton for collection, harvest, storage, and transportation of eligible materials, and limiting the cost share per acre for establishment of biomass crops. The requirements for eligible material and eligible land are revised in this rule, as required by the 2014 Farm Bill. The general scope of BCAP is not changing with this rule.
We invite you to submit comments on this rule. In your comment, please specify RIN 0560–AI27 and include the volume, date, and page number of this issue of the
•
•
All written comments will be available for inspection online at
Kelly Novak, telephone (202) 720–4053. Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact the USDA Target Center at (202) 720–2600 (voice).
BCAP is an FSA administered program using Commodity Credit Corporation (CCC) funds. Section 9010 of the 2014 Farm Bill (Pub. L. 113–79) amends 7 U.S.C. 8111 and reauthorizes BCAP with certain changes. BCAP provides assistance to biomass producers and owners in two payment categories:
• Matching payments to eligible material owners for the delivery of eligible material to qualified Biomass Conversion Facilities (BCFs). Qualified BCFs use biomass feedstocks to produce heat, power, biobased products, research, or advanced biofuels. The 2014 Farm Bill adds research as an authorized use of material by BCFs.
• Establishment and annual payments to producers who enter into contracts with CCC to produce eligible biomass crops on contract acres within BCAP project areas.
This rule implements all the required 2014 Farm Bill changes to both parts of the program and seeks comment on FSA's implementation of BCAP, given the required changes and changes to funding. The rule also includes several discretionary changes, including the removal of the participant's option for assignment of BCAP payments to third parties, and a clarification of how the two-year period of eligibility for matching payments, commencing with the effective date of this rule, will be calculated.
This rule adds, removes, or revises the following definitions:
• “Agricultural residue” is being added and includes crop residues and woody orchard wastes. Both these types of residues can be eligible materials.
• “Beginning farmer or rancher” is being removed, because that term is defined in 7 CFR part 718, which is referenced in § 1450.2.
• “Dry ton” is being revised to clarify requirements for measuring moisture content of eligible woody materials.
• “Eligible crop” is being revised to clarify that noxious and invasive species are ineligible for establishment and annual payments, and to move specific eligibility requirements to § 1450.200.
• “Eligible land” is being added to reflect the 2014 Farm Bill requirements, which add eligibility for Conservation Reserve Program (CRP) acreage or land in the Agricultural Conservation Easement Program (ACEP) that expires in the current year of a BCAP project area signup and has not yet received a CRP or ACEP annual rental payment in the current year.
• “Eligible material” is being revised to reflect the 2014 Farm Bill required changes for matching payments, and to move the specific eligibility requirements for material for matching payments to section § 1450.103.
• “Native sod” is being revised to reflect the 2014 Farm Bill's change in definition for native sod that is required for other USDA programs. For the purposes of consistency with crop insurance and the Noninsured Crop Disaster Assistance Program (NAP) regulations that now restrict the eligibility of native sod for those programs, the definition of native sod for the purposes of BCAP will now include ground that has never been tilled or the producer cannot substantiate that the ground has ever been tilled.
• “Socially disadvantaged farmer or rancher” is being removed, because that term is defined in 7 CFR part 718, which is referenced in § 1450.2.
The changes to the BCAP matching payments required by the 2014 Farm Bill include a reduced payment rate of up to $1 for each $1 per ton provided by the biomass conversion facility, in an amount not to exceed $20 per dry ton (previously $45 per ton) for a period of up to 2 years. The rate is being changed in § 1450.106.
As specified in the 2014 Farm Bill and in this rule, bagasse, which includes sugar cane and sorghum biomass, is now specifically excluded from the definition of an eligible material and the requirements for eligible materials in Subpart B. This rule also requires that all eligible material be collected or harvested directly from the land according to an approved conservation plan, forest stewardship plan, or equivalent plan. For example, manufacturing wood wastes that are not harvested directly from the land, such as sawdust or sawmill residues, are not eligible woody material. Woody material, including orchard waste, must be collected and harvested directly from the land and must also be a by-product of preventive treatments for hazardous fuel reductions, or reduction or containment of disease or insect infestations. Woody material that is a by-product of preventative treatments solely for the purpose of restoring ecosystem health is no longer eligible. Woody material that can be used to create a higher-value product (such as a mulch product) is not eligible. The 2014 Farm Bill definition of “eligible material” also specifies that eligible material can now be used by a biomass conversion facility for the purpose of research, in addition to heat, power, biobased products and advanced biofuels.
The 2014 Farm Bill clarifies that the rate for matching payments must be based on a “dry” ton. Therefore, this rule adds a requirement that biomass conversion facilities must use the applicable American Society for Testing and Materials (ASTM) standards to determine dry ton weight of eligible materials. In addition, the eligible material owner, as specified in § 1450.104, is required to submit a request for payment on approved eligible woody material deliveries based on the dry ton weight that was determined using an ASTM standard.
The 2014 Farm Bill continues the matching payment eligibility period of 2 years total per eligible material owner. This rule specifies that any matching payments received before the effective date of this final rule will not count towards an eligible material owner's 2-year period of eligibility for matching payments. This is a discretionary decision. FSA determined that the revised requirements for eligible materials and the reduction in payment rate changed the scope of the matching payments part of BCAP to the extent that a new 2-year period of payment eligibility for eligible material owners is appropriate.
The changes to BCAP establishment and annual payments required by the 2014 Farm Bill include:
• Project area selection criteria will include consideration of existing project areas and continuation of funding to advance the maturity of such project areas;
• Land eligibility will now include expiring CRP land and ACEP land, but the 2014 Farm Bill prohibits the Secretary from making a BCAP payment if a CRP or ACEP payment was received in the same year;
• Establishment payment rates are reduced to not more than 50 percent of the costs of establishing an eligible perennial crop, not to exceed $500 per acre, except that socially disadvantaged farmers or ranchers may be reimbursed up to $750 per acre; and
• Any plant that is an invasive or noxious species is explicitly excluded from the definition of “eligible crop.”
The 2014 Farm Bill also provides specific authority for the Secretary to consider whether the biomass conversion facility for the project area has equity sufficient to be in operation by the date on which the eligible crops are ready for harvest. Under prior regulations, CCC could require information demonstrating that the biomass conversion facility would have sufficient equity available to operate. We are requesting comments on how we should apply this criterion in future Requests for Proposals (see Comments Requested section below).
The 2014 Farm Bill clarifies that eligible crops for a project area do not include invasive or noxious species or varieties of plants. Therefore, this rule amends § 1450.200 to effect that exclusion. If a project area proposal includes species or plant varieties whose potential to be invasive or noxious has not yet been determined, the 2014 Farm Bill requires CCC to use “credible risk assessment tools or other credible sources” to determine which plants are invasive or noxious in a particular area. We are requesting comments on which credible risk assessment tools or other credible sources for determination CCC should use (see Comments Requested section below). The requirement to use credible risk assessment tools to determine which plants are invasive or noxious is in addition to the existing National Environmental Policy Act (NEPA) requirements that apply to BCAP, which are not changing. FSA will continue to require the appropriate level of (NEPA) review, consistent with 7 CFR 799, for BCAP project area proposals.
As required by the 2014 Farm Bill, this rule amends § 1450.202 to include status as an existing project area as a new criterion in selecting BCAP project areas for funding, in order to advance the maturity of existing project areas. The 2014 Farm Bill does not specify what is meant by “maturity” of a project area. Different factors could be considered when determining “maturity,” including the harvesting of longer term crops, such as biomass trees, or the expansion of a project area, making it more economically viable in the long term. We are requesting comments on how FSA should apply this criterion (see Comments Requested section below).
This rule amends § 1450.204 to make the changes in the definition of eligible land required by the 2014 Farm Bill. Specifically, CRP contract acreage and Grassland Reserve Program (GRP) contract acreage were previously not eligible for BCAP, regardless of whether or not the CRP or GRP contract was due to expire within the year. The 2014 Farm Bill allows CRP acres that are in their expiring year, and which have not yet received an annual rental payment, to be eligible for enrollment into BCAP. The 2014 Farm Bill consolidates non-easement GRP acres into the CRP, so GRP acres are included in the provisions for expiring CRP land. The 2014 Farm Bill also consolidates GRP easements and Wetland Reserve Program (WRP) contract acreage into the newly created ACEP, administered by the USDA Natural Resources Conservation Service (NRCS). Therefore, § 1450.204 now specifies that the expiring ACEP acres are also eligible for enrollment in BCAP, provided no current year annual payment was received. This rule removes obsolete references to GRP and WRP acreage eligibility.
This rule is revising the levels and rates for establishment payments in § 1450.213 to reflect the limits provided in the 2014 Farm Bill. Specifically, the 2014 Farm Bill reduces the cost share for establishment payments from 75 percent to 50 percent of actual establishment costs and sets a payment limit of $500 per acre. The limit is $750 per acre if the producer is a socially disadvantaged farmer or rancher. There was no previous cap on payments per acre.
As a discretionary decision, this rule removes § 1450.9 “Assignments.” That section included provisions that allowed participants to assign BCAP payments, including both matching and establishment payments, to third
FSA will make certain changes to the way the establishment and annual payments portion of BCAP is implemented. These policies do not require changes to the regulations. As noted below, we are requesting comments on this rule and on implementation issues; these changes are being explained to provide information for the commenters (see Comments Requested section below).
The requirements for project area signup are largely unchanged by the 2014 Farm Bill. FSA will continue to initiate project area signup by first requesting project area proposals. Once FSA receives proposals, FSA will select and designate geographic-and-eligible-crop-specific project areas, and then announce producer signup at FSA county offices.
The process for producer signup is changing, to improve program effectiveness. In an effort to provide more timely outreach during signup, FSA will be evaluating and adjusting the timing of the producer signup process. In previous years, BCAP signup periods for establishment payments in approved project areas were relatively short and at less than optimal times for establishing crops. Therefore, FSA is revising the producer signup process to allow project area signups to take place on a continuous basis within the constraints of available funding.
As noted below in the Comments Requested section, FSA welcomes public input on BCAP implementation issues and policies. Most of the itemized issues pertain to changes the 2014 Farm Bill made to the establishment and annual payments component of the program.
The 2014 Farm Bill specifies the annual amount of funds authorized for BCAP and specifies how funding may be allocated among various activities. Specifically, the 2014 Farm Bill provides mandatory funding of $25 million for each of fiscal years 2014 through 2018, and specifies that the Secretary must use not less than 10 percent, nor more than 50 percent, of the funding for each fiscal year for BCAP matching payments. The $25 million each fiscal year is subject to sequestration or other reductions through the appropriations process. Section 716 of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113–235) effectively limited the funding available for BCAP in fiscal year 2015 to $23 million. The previous authorization for BCAP provided such sums as necessary from the mandatory appropriation for CCC; however, subsequent Congressional actions in the annual appropriations acts placed restrictions on the amount of funding available. The overall result of the 2014 Farm Bill changes in funding is to provide a more stable and predictable stream of funding for BCAP, although the annual amount of funding available is less than in some previous years.
The 2014 Farm Bill also specifically authorizes funding of technical assistance from available BCAP funds. BCAP included technical assistance previously, but FSA did not have the specific authorization to use BCAP funds for those activities. FSA plans to expand technical assistance activities to provide BCAP with enhanced compliance spot checks, greater breadth of environmental reviews, outreach, and training. In addition, BCAP technical assistance will continue to include the development and evaluation of conservation plans, forest stewardship plans, or equivalent plans for participants.
As noted in the next section, FSA seeks comments on how FSA should prioritize and implement various BCAP activities, given the funding authorization provided in the 2014 Farm Bill.
This rule makes several minor technical corrections, such as correcting typographical errors.
FSA is requesting public comments on how BCAP should be implemented in future years, given the new requirements in the 2014 Farm Bill and the limited funding authority. FSA is, in particular, requesting public comments on the following questions:
• What information could FSA reasonably collect that would provide assurance that the biomass conversion facility has sufficient equity to be in operation by the date on which project area eligible crops are ready for harvest?
• How could FSA best determine if expansion of a project area would advance the maturity of that project area?
• What credible risk tools and sources should FSA consider in determining whether proposed crops are potentially invasive?
• With a new cost share cap of 50 percent for establishment costs for perennial crops in project areas, what establishment practices should FSA consider as most important to support?
• With the new limits to the BCAP budget, what priorities should FSA consider in implementing the program?
Please provide information on these issues, and any other issues of concern with BCAP implementation, to the contacts listed in the
• Explain your views as clearly as possible.
• Describe any assumptions that you used.
• Provide any technical information and data on which you based your views.
• Provide specific examples to illustrate your points.
• Offer specific alternatives to the current regulations or policies and indicate the source of necessary data, the estimated cost of obtaining the data, and how the data can be verified.
Submit your comments by the comment period deadline.
We are issuing this final rule without prior notice and opportunity for comment. The Administrative Procedure Act (APA) exempts rules “relating to agency management or personnel or to public property, loans,
Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” 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 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866, and therefore, OMB has not reviewed this rule.
The Regulatory Flexibility Act (5 U.S.C. 601–612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory flexibility analysis of any rule whenever an agency is required by APA or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is exempt from notice and comment rulemaking requirements of the APA and no other law requires that a proposed rule be published for this rulemaking initiative.
The environmental impacts of this final rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321–4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500–1508), and the FSA regulations for compliance with NEPA (7 CFR part 799). The 2014 Farm Bill extended and revised BCAP and authorized its funding through 2018. FSA has no discretion in these BCAP provisions or changes; the only discretionary provisions in this final rule are minor editorial clarifications. The general scope of BCAP, as implemented under the 2008 Farm Bill, is unchanged. As such, FSA has determined that this final rule does not constitute a major Federal action that would significantly affect the quality of the human environment, individually or cumulatively. Therefore, FSA will not prepare an environmental assessment or environmental impact statement for this regulatory action.
Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal financial assistance and direct Federal development. For reasons specified in the final rule related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities within this rule are excluded from the scope of Executive Order 12372.
This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. The rule does not have retroactive effect. Before any judicial action may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR parts 11 and 780 are to be exhausted.
This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government, except as required by law. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
FSA has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under Executive Order 13175. If a Tribe requests consultation, FSA will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified in this rule are not expressly mandated by the 2014 Farm Bill.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104–4) requires Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments, or the private sector. Agencies generally need to prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates, as defined in Title II of UMRA, for State, local, and Tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
SBREFA normally requires that an agency delay the effective date of a major rule for 60 days from the date of publication to allow for Congressional review. This rule is not a major rule under SBREFA. Therefore, FSA is not required to delay the effective date for 60 days from the date of publication to allow for Congressional review.
The title and number of the Federal Domestic Assistance Program found in
The regulatory changes in this rule do not require changes to the information collection requests currently approved by OMB control number 0560–0082.
FSA and CCC are committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Administrative practice and procedure, Agriculture, Energy, Environmental protection, Grant programs—agriculture, Natural resources, Reporting and recordkeeping requirements, Technical assistance.
For the reasons discussed above, CCC amends 7 CFR part 1450 as follows:
7 U.S.C. 8111.
The revisions and additions read as follows:
(b) Determinations by the Natural Resources Conservation Service, U.S. Forest Service, Department of Interior, Bureau of Land Management, or other authorized technical assistance provider may be appealed in accordance with procedures established in part 614 of this title or otherwise established by the respective Agency.
(a) * * *
(2) * * *
(v) Use commercial weight scales that are certified for accuracy by applicable State or local authorities and accurate moisture measurement equipment to determine the dry ton weight equivalent of actual tonnage delivered. Woody material dry ton weight must be determined in accordance with applicable ASTM standards; and
(vi) Purchase eligible material at a fair market price that is consistent with similar products, regardless of whether or not the seller has applied for or receives a matching payment authorized by this subpart or if the seller and purchaser are related entities.
The revision reads as follows:
(a) * * *
(3) Certify that the eligible material for which a payment may be issued as specified in § 1450.106 has been harvested according to a conservation plan, forest stewardship plan, or equivalent plan, and, if woody eligible material collected or harvested on land other than contract acreage, the woody material is a by-product of preventative treatments that was removed to reduce hazardous fuels or to reduce or contain disease or insect infestation.
The revisions and additions read as follows:
(a) Except for the exclusions specified in paragraph (b) of this section, in order to qualify for matching payments, eligible material must meet the following requirements:
(2) * * *
(i) By-products of preventative treatments that were removed to reduce hazardous fuels or to reduce or contain disease or insect infestation; and
(b) * * *
(1) Any eligible material delivered before May 28, 2015;
(3) Material that is whole grain from any crop that is eligible to receive payments under title I of the Agricultural Act of 2014 or an amendment made by that title, including, but not limited to, barley, corn, grain sorghum, oats, rice, or wheat; honey; mohair; certain oilseeds such as canola, crambe, flaxseed, mustard seed, rapeseed, safflower seed, soybeans, sesame seed, and sunflower seeds; peanuts; pulse; chickpeas, lentils, and dry peas; dairy products; sugar; and wool and cotton boll fiber;
(4) Animal waste and by-products of animal waste including fats, oil, grease, and manure;
(5) Food waste and yard waste;
(6) Algae;
(7) Woody eligible material that is not a by-product of a preventative treatment to reduce hazardous fuel or to reduce or contain disease or insect infestation;
(8) Any woody eligible material collected or harvested outside contract acreage that would otherwise be used for higher-value products;
(9) Any otherwise eligible material collected or harvested outside contract acreage that, after delivery to a biomass conversion facility, its campus, or its affiliated facilities, must be separated from an eligible material used for a higher-value market product in order to be used for heat, power, biobased products, research, or advanced biofuels; or
(10) Bagasse.
(c) For eligible woody material harvested or collected from public lands, a person having the right to harvest or collect eligible material pursuant to a contract or permit with the U.S. Forest Service or other appropriate Federal agency will not be eligible for additional haul costs unless the facility is a further distance than specified in the contract requirement or the material was not a mandatory removal item from Federal lands.
(a) Applications for participation and requests for payments under this subpart will be accepted as specified in the FSA announcement(s) in a given fiscal year through the end of the announced sign up period on a continuous basis, subject to the availability of funds.
(b) An eligible material owner must apply to participate in the matching payments component of BCAP before delivery is made to a qualified biomass conversion facility and before payment for the eligible material is received from the qualified biomass conversion facility. The application must be submitted to the FSA county office servicing the tracts of land where the collection and harvest will occur and must be approved by CCC, before any delivery is made to or payment is made by the qualified biomass conversion facility for the eligible material.
(f) * * *
(1) Total actual tonnage delivered and a total dry weight tonnage equivalent amount determined by the qualified biomass conversion facility using standard moisture determinations applicable to the eligible material (Woody material dry ton weight is determined in accordance with applicable ASTM standards);
The revisions read as follows:
(a) Payments under this subpart will be made for a term not to exceed 2 years, commencing on the date that CCC issues the first payment under this subpart to the participant. The 2-year eligibility period for each participant runs from the date that the participant is first issued any matching payment from CCC, regardless of payment for subsequent deliveries to any other biomass conversion facility. The eligibility period will not include any BCAP matching payments received prior to May 28, 2015.
(b) Eligible crops include renewable biomass, as defined § 1450.2, excluding:
(1) Any crop that is eligible to receive payments under title I of the Agricultural Act of 2014 or an amendment made by that title, including, but not limited to, barley, corn, grain sorghum, oats, rice, or wheat; honey; mohair; certain oilseeds such as canola, crambe, flaxseed, mustard seed, rapeseed, safflower seed, soybeans, sesame seed, and sunflower seeds; peanuts; pulse; chickpeas, lentils, and dry peas; dairy products; sugar; and wool and cotton boll fiber; and
(2) Any plant that CCC has determined to be either a noxious weed or an invasive species. With respect to noxious weeds and invasive species, a list of such plants will be available in the FSA county office.
The revision reads as follows:
(a) * * *
(4) Any other information that gives CCC a reasonable assurance that the biomass conversion facility will be in operation in a timely manner so that it will use the eligible crops, as determined by CCC.
The revision and addition read as follows:
(a) * * *
(9) Status as an existing project area that has received funding under this subpart and the continuation of funding such project areas to advance the maturity of such project areas; and
(10) Any other necessary additional information, as determined by CCC.
The revisions read as follows:
(b) * * *
(3) Land enrolled in the Conservation Reserve Program (CRP) as specified in part 1410 of this chapter for which either:
(i) The enrollment is not expiring in the current fiscal year; or
(ii) A CRP payment for this land has been received in the current fiscal year; or
(4) Land enrolled in the Agricultural Conservation Easement Program (ACEP) for which either:
(i) The enrollment is not expiring in the current fiscal year; or
(ii) An ACEP payment for this land has been received in the current fiscal year.
(a) CCC will pay not more than 50 percent of the actual or average cost (whichever is lower) of establishing non-woody perennial crops and woody perennial crops specified in the conservation plan, forest stewardship plan, or equivalent plan, not to exceed $500 per acre. For socially disadvantaged farmers or ranchers, as defined in part 718 of this title, establishment payments may not exceed $750 per acre.
(b) The average cost of performing a practice will be determined by CCC based on recommendations from the State Technical Committee. Such cost may be the average cost in a State, a county, or a part of a State or county, as determined by CCC. The average cost as determined by CCC will be used for payment purposes, if it is less than the actual cost for an individual participant.
Animal and Plant Health Inspection Service, USDA.
Final rule; technical amendment.
In a final rule published in the
Effective February 27, 2015.
Mr. Javier Vargas, Case Manager, National Import Export Services, Animal Health Policy and Programs, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737; (301) 851–3300.
In a final rule
We also wish to clarify a statement we made in the preamble to the final rule regarding the requirements for importing table eggs from HPAI regions. We incorrectly stated that table eggs moved to approved establishments for breaking and pasteurization require an APHIS permit. Such eggs do not require an APHIS permit for importation and, as indicated in § 94.6(c)(2), may be moved from the port of arrival in the United States, under seal of the United States Department of Agriculture, to an approved establishment for breaking and pasteurization.
Animal diseases, Imports, Livestock, Meat and meat products, Milk, Poultry and poultry products, Reporting and recordkeeping requirements.
Accordingly, 9 CFR part 94 is amended as follows:
7 U.S.C. 450, 7701–7772, 7781–7786, and 8301–8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective February 27, 2015. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 27, 2015.
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590–0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at
Richard A. Dunham III, Flight Procedure Standards Branch (AFS–420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954–4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P–NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will
Air Traffic Control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721–44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective February 27, 2015. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 27, 2015.
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590–0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.
Richard A. Dunham III, Flight Procedure Standards Branch (AFS–420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954–4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260–3, 8260–4, 8260–5, 8260–15A, and 8260–15B when required by an entry on 8260–15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721–44722.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective February 27, 2015. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 27, 2015.
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops–M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590–0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.
Richard A. Dunham III, Flight Procedure Standards Branch (AFS–420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954–4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P–NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721–44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective February 27, 2015. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 27, 2015.
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops–M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590–0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Richard A. Dunham III, Flight Procedure Standards Branch (AFS–420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954–4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260–3, 8260–4, 8260–5, 8260–15A, and 8260–15B when required by an entry on 8260–15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721–44722.
Food and Drug Administration, HHS.
Final rule; correcting amendments.
The Food and Drug Administration (FDA) is amending its regulation regarding postmarket electronic Medical Device Reporting (eMDR) to address the unintentional removal of certain provisions of the Unique Device Identification (UDI) System regulations and to update the contact information listed in the regulations.
This rule is effective August 14, 2015.
Sharon Kapsch, Office of Surveillance and Biometrics, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3208, Silver Spring, MD 20993–0002, 301–796–6104,
In the
In the
When the eMDR rule goes into effect, it will require changes to the CFR citations of some provisions within part 803; consequently, some of the citations used by the UDI rule will have to be updated. The following table provides the “Original UDI Citation” (the citation used by the September 24, 2013, UDI rule) and the corresponding “Updated Citation” for provisions addressed in this document.
We are also updating the contact information listed in §§ 803.11 and 803.33 for the Division of International and Consumer Education (DICE) (formerly the Division of Small Manufacturers, International and Consumer Assistance (DSMICA)).
FDA is publishing this document as a final rule under the Administrative Procedures Act (5 U.S.C. 551,
FDA has determined under 21 CFR 25.30(i) that this final rule is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final rule refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA). The revised Form FDA 3500A is approved under OMB control number 0910–0291. The collections of information in part 803 have been approved under OMB
The information collection provisions in the eMDR rule have been submitted to OMB for review as required by section 3507(d) of the PRA (44 U.S.C. 3507(d)). Before the effective date of the final rule, FDA will publish a notice in the
Imports, Medical devices, Reporting and recordkeeping requirements.
Therefore under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 803 as amended by the Medical Device Reporting: Electronic Submission Requirements final rule of February 14, 2014, 79 FR 8832, is further amended as follows:
21 U.S.C. 352, 360, 360i, 360j, 371, 374.
(aa)
(bb)
(1) A
(2) A
(i) The lot or batch within which a device was manufactured;
(ii) The serial number of a specific device;
(iii) The expiration date of a specific device;
(iv) The date a specific device was manufactured.
(v) For an HCT/P regulated as a device, the distinct identification code required by § 1271.290(c) of this chapter.
(d) Form FDA 3500A is available on the Internet at
(c) * * *
(4) Model number, catalog number, serial number, lot number, or other identifying number; expiration date; and unique device identifier (UDI) that appears on the device label or on the device package;
(a) * * *
(2) Division of International and Consumer Education, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4621, Silver Spring, MD 20993–0002, by email:
(b) * * *
(7) * * *
(iv) Product model, catalog, serial, and lot number and unique device identifier (UDI) that appears on the device label or on the device package;
(c) * * *
(4) Model number, catalog number, serial number, lot number, or other identifying number; expiration date; and unique device identifier (UDI) that appears on the device label or on the device package;
(c) * * *
(4) Model number, catalog number, serial number, lot number, or other identifying number; expiration date; and unique device identifier (UDI) that appears on the device label or on the device package;
Internal Revenue Service (IRS), Treasury.
Final regulations and removal of temporary regulations.
This document contains final regulations relating to the election of the alternative simplified credit under section 41(c)(5) of the Internal Revenue Code (Code). The final regulations affect certain taxpayers claiming the credit under section 41.
David Selig (202) 317–4137 (not a toll-free number).
This document amends 26 CFR part 1 to provide rules relating to the time and manner of electing the alternative simplified credit (ASC) under section 41(c)(5) of the Internal Revenue Code (Code).
Section 41(a) provides an incremental tax credit for increasing research activities (research credit) based on a percentage of a taxpayer's qualified research expenses above a base amount. A taxpayer can apply the rules and credit rate percentages under section 41(a)(1) to calculate the credit (commonly referred to as the regular credit) or a taxpayer can make an election to apply the ASC rules and credit rate percentages under section 41(c)(5) to calculate the credit. Section 41(c)(5)(C) provides that an ASC election under section 41(c)(5) applies to the taxable year for which it is made and all succeeding taxable years unless revoked with the consent of the Secretary.
On June 10, 2011, the Treasury Department and the IRS published final regulations (TD 9528) (2011 Final Regulations) in the
Following the publication of the 2011 Final Regulations, the Treasury Department and the IRS received requests to amend the regulations to allow taxpayers to make an ASC election on an amended return. The requests explained that the burden of substantiating expenditures and costs for the base period under the regular credit can be costly, time-consuming, and difficult, and suggested that taxpayers often need additional time to determine whether to claim the regular credit or the ASC.
On June 3, 2014, the Treasury Department and the IRS published a notice of proposed rulemaking by cross-reference to temporary regulations (REG–133495–13) in the
Written and electronic comments responding to the proposed regulations were received. No requests for a public hearing were made and no public hearing was held. After consideration of all the comments, the proposed regulations are adopted as revised by this Treasury decision.
A commenter requested clarification regarding whether a section 280C(c)(3) election made for a taxable year on line 17 of Form 6765, Credit For Increasing Research Activities, where no amount of regular credit is claimed, will be viewed by the IRS as a claim of the section 41(a)(1) credit and preclude an ASC election from being made on an amended return for that taxable year. Section 280(c)(3) allows a taxpayer to make an annual irrevocable election to claim a reduced research credit rather than reducing the section 174 deduction, as required by section 280(c)(1). A section 280C(c)(3) election must be made on an original return. If a taxpayer is undecided whether to claim the regular credit for a taxable year but wants to preserve the operative effect of the section 280C(c)(3) election for that taxable year, then the taxpayer will make the section 280C(c)(3) election on line 17 of Form 6765, but leave the remaining section of the form blank. A section 280C(c)(3) election on line 17 of Form 6765 made in a taxable year does not, in and of itself, constitute a credit claim under section 41(a)(1), and accordingly does not preclude a taxpayer from making an ASC election on an amended return for that taxable year.
One commenter requested that the final regulations allow an extension of time to make an election under section 41(c)(5) under § 301.9100–3. Under § 301.9100–3(c), the Commissioner will grant a reasonable extension of time to make a regulatory election only when the interests of the Government will not be prejudiced by the granting of relief. Under § 301.9100–3(c)(1)(ii), the interests of the Government are ordinarily prejudiced if the taxable year in which the regulatory election should have been made or any taxable years that would have been affected by the election had it been timely made are closed by the period of limitations on assessment under section 6501(a) before the taxpayer's receipt of a ruling granting relief under this section. Because the final regulations allow a taxpayer to amend its return to make the ASC election in a taxable year that is not closed by the period of limitations for assessment under section 6501(a) if no credit under section 41(a)(1) was claimed in the prior taxable year on an original or amended return, an extension of time under § 301.9100–3 to make the ASC election is not necessary during this period. An extension of time to make an ASC election in a taxable year closed by the period of limitations on assessment under section 6501(a) ordinarily prejudices the interests of the government. See section 301.9100–3(c)(1)(ii). Accordingly, the final regulations retain the rule that an extension of time to make an election under section 41(c)(5) will not be granted under § 301.9100–3.
One commenter requested that the final regulations provide that a taxpayer may make an ASC election for an earlier, closed tax year on a later year's return in which a research credit from that closed year is reported on a carryforward schedule, or actually used as a credit against tax, so long as no intervening amended return claiming a research credit for that tax year using a different method has been claimed. The Temporary Regulations only permitted a taxpayer to elect the ASC on an amended return for taxable years ending before June 3, 2014, (the effective/applicability date of those regulations) if the taxpayer makes the election before the period of limitations for assessment of tax has expired for that year. The rule in the Temporary Regulations provided
One commenter requested that these final regulations provide that an ASC election can be made on an amended return for a tax year so long as the period for making a refund claim under section 6511 has not expired for that tax year, even in cases where the statute of limitations on assessment under section 6501 is closed. These final regulations retain the rule of the Temporary Regulations that a taxpayer must make an ASC election on an amended return before the statute of limitations on assessment under section 6501(a) is closed. The general period under the statute of limitations on assessment under section 6501(a), which is three years after the tax return is filed, provides a reasonable time for taxpayers to file an ASC election on an amended return, and a reasonable time for the IRS to examine the amended return. This rule also preserves the integrity the of the rule in the final regulations providing that an extension of time to make an election under section 41(c)(5) will not be granted under § 301.9100–3. Under § 301.9100–3, the interests of the government are ordinarily prejudiced if the taxable year in which a regulatory election should have been made or any taxable years that would have been affected by the election had it been timely made are closed by the period of limitations on assessment under section 6501(a) before the taxpayer's receipt of a ruling granting relief under § 301.9100. This requirement is mitigated by the fact that the period of limitations on assessment may be extended by agreement of the IRS and the taxpayer. For clarity, the language found in the effective date of the Temporary Regulations referencing the period of limitations for assessment of tax is added to the text of the final regulations under § 1.41–9(b)(2) relating to the time and manner of making the ASC election.
One commenter requested that the final regulations modify the rules for controlled group ASC elections under § 1.41–9(b)(4), under which only the designated member of a controlled group may make or revoke an ASC election. Revising those rules is beyond the scope of these regulations. Therefore, the final regulations do not amend § 1.41–9(b)(4).
One commenter requested that these final regulations amend the rule in the Temporary Regulations that allows a taxpayer to make an ASC election for a tax year on an amended return only if the taxpayer has not previously claimed the section 41 credit on its original return or an amended return for that tax year to clarify that the previously claimed section 41 credit is determined under section 41(a)(1), and not under sections 41(a)(2) or (3). The commenter stated that the ASC is an alternative method to the regular credit under section 41(a)(1), and whether a taxpayer elects the ASC or claims the regular credit does not impact the determination of the credits allowable under sections 41(a)(2) and 41(a)(3). This approach is consistent with the language of section 41(c)(5)(A) and § 1.41–9(a), which specifically reference section 41(a)(1). Accordingly, the final regulations provide that a taxpayer may make an ASC election for a tax year on an amended return only if the taxpayer has not previously claimed the section 41(a)(1) credit on its original return or an amended return for that tax year.
The Temporary Regulations are obsolete for taxable years beginning on or after February 27, 2015.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collection of information in these regulations will not have a significant economic impact on a substantial number of small entities. Although a substantial number of small entities may make an ASC election on an amended return pursuant to these regulations, the economic impact of any collection burden on these entities relating to this election is minimal because the regulations will result in a benefit to taxpayers by providing additional time for taxpayer to calculate and elect the ASC. Accordingly, a regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.
The principal author of these regulations is David Selig, Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 7805 * * *
Section 1.41–9 also issued under 26 U.S.C. 41(c)(5)(C). * * *
The revision and addition read as follows:
(b) * * *
(2)
(d)
Coast Guard, DHS.
Final rule.
The Coast Guard is removing the existing drawbridge operation regulation for the drawbridge across the Passaic River, mile 11.8, at Rutherford, New Jersey. The drawbridge was converted to a fixed bridge in October 2010, and the operating regulation is no longer applicable or necessary.
This rule is effective February 27, 2015.
The docket for this final rule, [USCG–2014–1070] is available at
If you have questions on this rule, call or email Mr. Joe Arca, Project Officer, First Coast Guard District Bridge Program, telephone 212–514–4336, email
The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Route 3 Bridge, that once required draw operations in 33 CFR 117.739(n), was converted to a fixed bridge in October 2010. Therefore, the regulation is no longer applicable and shall be removed from publication. It is unnecessary to publish an NPRM because this regulatory action does not purport to place any restrictions on mariners but rather removes a restriction that has no further use or value.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the
The Route 3 Bridge across the Passaic River, mile 11.8, was converted to a fixed bridge in 2010. It has come to the attention of the Coast Guard that the governing regulation for this drawbridge was never removed subsequent to the conversion to a fixed bridge. The conversion of this drawbridge necessitates the removal of the drawbridge operation regulation, 33 CFR 117.739(n), pertaining to the former drawbridge.
The purpose of this rule is to remove paragraph 33 CFR 117.739(n), that refers to the Route 3 Bridge at mile 11.8, from the Code of Federal Regulations since it governs a bridge that is no longer able to be opened.
The Coast Guard is changing the regulation in 33 CFR 117.739 by removing restrictions and the regulatory burden related to the draw operations for this bridge that is no longer a drawbridge. The change removes paragraph 117.739(n) of the regulation which governs the Route 3 Bridge and redesignates (o) through (t) as (n) through (s). This Final Rule seeks to update the Code of Federal Regulations by removing language that governs the operation of the Route 3 Bridge, which in fact no longer is a drawbridge. This change does not affect waterway or land traffic. This change does not affect nor does it alter the operating schedules in 33 CFR 117.739 that govern the remaining active drawbridges on the Passaic River except to redesignate these bridges.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The Coast Guard does not consider this rule to be “significant” under that Order because it is an administrative change and does not affect the way vessels operate on the waterway.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their
This rule will have no effect on small entities since this drawbridge has been converted to a fixed bridge and the regulation governing draw operations for this bridge is no longer applicable. There is no new restriction or regulation being imposed by this rule; 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.
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 Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (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 involves the removal of a drawbridge operation regulation that is no longer necessary. This rule is categorically excluded, under figure 2–1, paragraph (32)(e), of the Instruction.
Under figure 2–1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05–1; Department of Homeland Security Delegation No. 0170.1.
Environmental Protection Agency.
Direct final rule.
The Environmental Protection Agency (EPA) is approving elements of state implementation plan (SIP) submissions from Ohio regarding the Prevention of Significant Deterioration (PSD) infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2008 lead (Pb), 2008 ozone, 2010 nitrogen dioxide (NO
This direct final rule will be effective April 28, 2015, unless EPA receives adverse comments by March
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2011–0888 (2008 Pb infrastructure elements), EPA–R05–OAR–2011–0969 (2008 ozone infrastructure elements), EPA–R05–OAR–2012–0991 (2010 NO
1.
2.
3.
4.
5.
Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–9401,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This
This rulemaking addresses submissions from the Ohio Environmental Protection Agency (Ohio EPA). The state submitted its infrastructure SIP for each NAAQS on the following dates: 2008 Pb—October 12, 2011, and supplemented on June 7, 2013; 2008 ozone—December 27, 2012, and supplemented on June 7, 2013; 2010 NO
The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.
This specific rule making is only taking action on the PSD elements of these submittals. The majority of the other infrastructure elements were addressed in proposed rulemaking published July 25, 2014 (79 FR 43338). Final action was taken on those elements on October 6, 2014, for 2008 Pb and 2010 NO
States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet new source review (NSR) requirements under PSD and nonattainment new source review
The evaluation of each state's submission addressing the infrastructure SIP requirements of section 110(a)(2)(C) covers: (i) Enforcement of SIP measures; (ii) PSD provisions that explicitly identify oxides of nitrogen (NO
This element was proposed for the 2008 lead, 2008 ozone, 2010 NO
EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (
The Phase 2 Rule required that states submit SIP revisions incorporating the requirements of the rule, including the specification of NO
EPA approved revisions to Ohio's PSD SIP reflecting these requirements on October 28, 2014 (79 FR 64119), and therefore, Ohio has met this set of infrastructure SIP requirements of section 110(a)(2)(C) with respect to the 2008 lead, 2008 ozone, 2010 NO
On May 16, 2008 (
The explicit references to SO
The Court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 implementation rule also does not affect EPA's action on the present infrastructure action. EPA interprets the CAA to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.
The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as condensables, in PM
EPA approved revisions to Ohio's PSD SIP reflecting these requirements on October 28, 2014 (79 FR 64119), and therefore Ohio has met this set of infrastructure SIP requirements of section 110(a)(2)(C) with respect to the
On October 20, 2010, EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM
The 2010 NSR Rule also established a new “major source baseline date” for PM
On October 28, 2014 (79 FR 64119), EPA finalized approval of the applicable infrastructure SIP PSD revisions for Ohio, therefore Ohio has met this set of infrastructure SIP requirements of section 110(a)(2)(C) with respect to the 2008 lead, 2008 ozone, 2010 NO
With respect to Elements C, and J, EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of Element D(i)(II) may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Ohio has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs).
On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions.
In order to act consistently with its understanding of the Court's decision pending further judicial action to effectuate the decision, EPA is no longer applying EPA regulations that would require that SIPs include permitting requirements that the Supreme Court found impermissible. Specifically, EPA is not applying the requirement that a state's SIP-approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant: (i) That the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (
EPA anticipates a need to revise Federal PSD rules in light of the Supreme Court opinion. In addition, EPA anticipates that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision. The timing and content of subsequent EPA actions with respect to EPA regulations and state PSD program approvals are expected to be informed by additional legal process before the United States Court of Appeals for the District of Columbia Circuit. At this juncture, EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to assure that the state's program correctly addresses GHGs consistent with the Supreme Court's decision.
At present, Ohio's SIP is sufficient to satisfy Elements C, D(i)(II), and J with respect to GHGs because the PSD permitting program previously approved by EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT. Although the approved Ohio PSD permitting program may currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not render the infrastructure SIP submission inadequate to satisfy Elements C, (D)(i)(II), and J. The SIP contains the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that EPA does not consider necessary at this time in light of the Supreme Court decision.
For the purposes of the 2008 lead, 2008 ozone, 2010 NO
Certain sub-elements in this section overlap with elements of section 110(a)(2)(D)(i) and section 110(a)(2)(J). These links will be discussed in the appropriate areas below.
Section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality or to protect visibility in another state.
EPA notes that Ohio's satisfaction of the applicable infrastructure SIP PSD requirements for the 2008 lead, 2008 ozone, 2010 NO
EPA has previously approved revisions to Ohio's SIP that meet certain requirements obligated by the Phase 2
States must meet applicable requirements of section 110(a)(2)(C) related to PSD. Ohio's PSD program in the context of infrastructure SIPs has already been discussed in the paragraphs addressing section 110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes that the actions for those sections are consistent with the actions for this portion of section 110(a)(2)(J).
Therefore, Ohio has met all of the infrastructure SIP requirements for PSD associated with section 110(a)(2)(D)(J) for the 2008 lead, 2008 ozone, 2010 NO
EPA is approving the PSD related infrastructure requirements for Ohio's 2008 lead, 2008 ozone, 2010 NO
In the above table, the key is as follows:
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 28, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Sulfur oxides.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) Approval—In a October 12, 2011, submittal, supplemented on June 7, 2013, Ohio certified that the State has satisfied the infrastructure SIP requirements of section 110(a)(2)(A) through (H), and (J) through (M) for the 2008 Lead NAAQS.
(f) Approval—In a February 8, 2013, submittal, supplemented on February 25, 2013, and June 7, 2013, Ohio certified that the State has satisfied the infrastructure SIP requirements of section 110(a)(2)(A) through (H), and (J) through (M) for the 2010 NO
(g) Approval—In a December 27, 2012, submittal, supplemented on June 7, 2013, Ohio certified that the State has satisfied the infrastructure SIP requirements of section 110(a)(2)(A) through (H), and (J) through (M) for the 2008 Ozone NAAQS. We are not finalizing action on section 110(a)(2)(D)(i)(I)—Interstate transport prongs 1 and 2 or visibility portions of section 110(a)(2)(D)(i)(II) and 110(a)(2)(J).
(h) Approval—In a June 7, 2013, submittal, Ohio certified that the State has satisfied the infrastructure SIP requirements of section 110(a)(2)(A) through (H), and (J) through (M) for the 2010 SO
Environmental Protection Agency (EPA).
Delegation of authority.
The States of Iowa, Kansas, Missouri, and Nebraska and the local agencies of Lincoln-Lancaster County, Nebraska, and the city of Omaha, Nebraska, have submitted updated regulations for delegation of EPA authority for implementation and enforcement of NSPS, NESHAP, and MACT standards. The submissions cover new EPA standards and, in some instances, revisions to standards previously delegated. EPA's review of the pertinent regulations shows that they contain adequate and effective procedures for the implementation and enforcement of these Federal standards. This action informs the public of delegations to the above-mentioned agencies.
This document is effective on February 27, 2015. The dates of delegation can be found in the
Copies of documents relative to this action are available for public inspection during normal business hours at the Environmental
Effective immediately, all notifications, applications, reports, and other correspondence required pursuant to the newly delegated standards and revisions identified in this document must be submitted with respect to sources located in the jurisdictions identified in this document, to the following addresses:
Iowa Department of Natural Resources, Air Quality Bureau, 7900 Hickman Road, Suite 1, Windsor Heights, Iowa 50324.
Kansas Department of Health and the Environment, Bureau of Air, 1000 SW Jackson Street, Suite 310, Topeka, Kansas 66612–1367.
Missouri Department of Natural Resources, Air Pollution Control Program, PO Box 176, Jefferson City, Missouri 65102–0176.
Nebraska Department of Environmental Quality, Air Quality Division, 1200 “N” Street, Suite 400, P.O. Box 98922, Lincoln, Nebraska 68509.
Lincoln-Lancaster County Health Department, Division of Environmental Public Health, Air Quality Section, 3140 “N” Street, Lincoln, Nebraska 68510.
City of Omaha, Public Works Department, Air Quality Control Division, 5600 South 10th Street, Omaha, Nebraska 68107.
Duplicates of required documents must also continue to be submitted to the EPA Regional Office at the above address.
Ms. Paula Higbee at (913) 551–7028, or by email at
The supplementary information is organized in the following order:
EPA is providing notice of an update to its delegable authority for implementation and enforcement of the Federal standards shown in the tables below to the states of Iowa, Kansas, Missouri, and Nebraska. This action updates the delegation tables previously published at 78 FR 71510 (November 29, 2013). EPA has established procedures by which these agencies are automatically delegated the authority to implement the standards when they adopt regulations which are identical to the Federal standards. We then periodically provide notice of the new and revised standards for which delegation has been given. This document does not affect or alter the status of the listed standards under state or Federal law.
1. Section 111(c)(1) of the Clean Air Act (CAA) authorizes EPA to delegate authority to any state agency which submits adequate regulatory procedures for implementation and enforcement of the NSPS program. The NSPS are codified at 40 CFR part 60.
2. Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorizes EPA to delegate authority to any state or local agency which submits adequate regulatory procedures for implementation and enforcement of emission standards for hazardous air pollutants. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63, respectively.
Delegation confers primary responsibility for implementation and enforcement of the listed standards to the respective state and local air agencies. However, EPA also retains the concurrent authority to enforce the standards.
Tables I, II, and III below list the delegated standards. Each item listed in the Subpart column has two relevant dates listed in each column for each state. The first date in each block is the reference date to the CFR contained in the state rule. In general, the state or local agency has adopted the applicable standard through the date as noted in the table. The second date is the most recent effective date of the state agency rule for which the EPA has granted the delegation. This document specifically addresses revisions to the columns for Iowa, Kansas, Missouri, and Nebraska and the local agencies of Lincoln-Lancaster County, Nebraska, and the city of Omaha, Nebraska. If there are no dates listed in the delegation table, the state has not accepted delegation of the standard and implementation of those standards reside with EPA.
1. The EPA regulations effective after the first date specified in each block have not been delegated, and authority for implementation of these regulations is retained solely by EPA.
2. In some cases, the standards themselves specify that specific provisions cannot be delegated. In such cases, a specific section of the standard details what authorities can and cannot be delegated. You should review the applicable standard in the CFR for this information.
3. In some cases, the state rules do not adopt the Federal standard in its entirety. Each state rule (available from the respective agency) should be consulted for specific information.
4. In some cases, existing delegation agreements between the EPA and the agencies limit the scope of the delegated standards. Copies of delegation agreements are available from the state agencies, or from this office.
5. With respect to 40 CFR part 63, subpart A, General Provisions (see Table III), EPA has determined that sections 63.6(g), 63.6(h)(9), 63.7(e)(2)(ii) and (f), 63.8(f), and 63.10(f) cannot be delegated. Additional information is contained in an EPA memorandum titled “Delegation of 40 CFR part 63 General Provisions Authorities to State and Local Air Pollution Control Agencies” from John Seitz, Director, Office of Air Quality Planning and Standards, dated July 10, 1998.
All sources subject to the requirements of 40 CFR parts 60, 61, and 63 are also subject to the equivalent requirements of the above-mentioned state or local agencies.
This document informs the public of delegations to the above-mentioned agencies of the above-referenced Federal regulations.
This document is issued under the authority of sections 101, 110, 112, and 301 of the CAA, as amended (42 U.S.C. 7401, 7410, 7412, and 7601).
Environmental Protection Agency.
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action publishing negative declarations for sewage sludge incineration (SSI) units for: the State of Colorado, the State of Montana, the State of North Dakota, the State of South Dakota, the State of Utah, and the State of Wyoming. Each state notified EPA in its negative declaration letter that there are no SSI units subject to the requirements of sections 111(d) and 129 of the Clean Air Act (CAA) within the jurisdictional boundaries of their state. EPA is accepting the negative declarations in accordance with the requirements of the CAA.
This rule is effective on April 28, 2015 without further notice, unless EPA receives adverse comments by March 30, 2015. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA–R08–OAR–2014–0811, by one of the following methods:
•
•
•
•
•
EPA's policy is that all comments received will be included in the public docket without change and may be made available online at
Kendra Morrison, Air Program, 1595 Wynkoop Street, Denver, Colorado 80202–1129, 303–312–6145,
For the purpose of this document, we are giving meaning to certain words and initials as follows:
(i) The words or initials
(ii) The initials
(iii) The words
(iv) The initials
(v) The initials
1.
2.
a. Identify the rulemaking by docket number and other identifying information (subject heading,
b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
d. Describe any assumptions and provide any technical information and/or data that you used.
e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
f. Provide specific examples to illustrate your concerns, and suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline identified.
EPA's statutory authority for the regulation of new and existing solid waste incineration units is outlined in CAA sections 111 and 129. Section 129 of the CAA is specific to solid waste combustion, and requires EPA to establish performance standards for each category of solid waste incineration units. Section 111 of the Act gives EPA the statutory authority to promulgate new source performance standards (NSPS), applicable to new units, and/or emission guidelines (EG) for existing units. EG are implemented and enforced through either an EPA-approved state plan or a promulgated federal plan. If a state does not have any existing solid waste incineration units for the relevant EG, the state shall submit a letter to EPA certifying that no such units exist within the state (
A SSI unit is a solid waste incinerator located at a wastewater treatment facility designed to treat domestic sewage sludge. On March 21, 2011 (76 FR 15372), EPA promulgated (40 CFR part 60) NSPS for new SSI units (subpart LLLL) and EG for existing SSI units (subpart MMMM). Existing SSI units are units that commenced construction on or before October 14, 2010. The State of Colorado, the State of Montana, the State of North Dakota, the State of South Dakota, the State of Utah, and the State of Wyoming each determined, through negative declarations, that there are no existing SSI units subject to CAA sections 111 and 129 within the jurisdictional boundaries of their state.
Colorado Department of Public Health and Environment submitted a negative declaration on April 3, 2013, certifying the Air Pollution Control Division identified no SSI units affected by the EG.
Montana Department of Environmental Quality submitted a negative declaration on December 10, 2013, certifying no SSI units covered under 40 CFR 60, subpart MMMM.
North Dakota Department of Health submitted a negative declaration on November 27, 2012, certifying no SSI units covered under 40 CFR 60, subpart MMMM.
South Dakota Department of Environment and Natural Resources submitted a negative declaration on November 21, 2012, certifying no SSI units subject to 40 CFR 60, subpart MMMM.
Utah Department of Environmental Quality submitted a negative declaration on December 23, 2013, certifying no existing SSI units.
Wyoming Department of Environmental Quality submitted a negative declaration dated February 28, 2013, certifying no SSI units operating within the state.
EPA is publishing the negative declarations for existing SSI units for the State of Colorado, the State of Montana, the State of North Dakota, the State of South Dakota, the State of Utah, and the State of Wyoming. The negative declarations satisfy the requirements of 40 CFR 62.06 and will serve in lieu of CAA section 111(d)/129 state plans for the specified states and source category.
EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the Proposed Rules section of today's
If the EPA receives adverse comments, EPA will publish a timely withdrawal in the
This final action merely publishes some state negative declarations and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and,
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because it will not have a substantial direct effect on one or more Indian tribes, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by
Environmental protection, Air pollution control, Solid waste incineration, Sewage sludge incineration.
40 CFR part 62 is amended to read as follows:
42 U.S.C. 7401
Letter from Colorado Department of Public Health & Environment submitted to EPA on April 3, 2013, certifying that there are no known existing sewage sludge incineration units in the State of Colorado.
Letter from Montana Department of Environmental Quality submitted to EPA on December 10, 2013, certifying that there are no known existing sewage sludge incineration units in the State of Montana.
Letter from North Dakota Department of Health submitted to EPA on November 27, 2012, certifying that there are no known existing sewage sludge incineration units in the State of North Dakota.
Letter from South Dakota Department of Environmental Quality submitted to EPA on November 21, 2012, certifying that there are no known existing sewage sludge incineration units in the State of South Dakota.
Letter from Utah Department of Environmental Quality submitted to EPA on December 23, 2013, certifying that there are no known existing sewage sludge incineration units in the State of Utah.
Letter from Wyoming Department of Environmental Quality submitted to EPA and dated February 28, 2013, certifying that there are no known existing sewage sludge incineration units in the State of Wyoming.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This final rule implements provisions of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (SMART Act) which require us to provide a right of appeal and an appeal process for liability insurance (including self-insurance), no-fault insurance, and workers' compensation laws or plans when Medicare pursues a Medicare Secondary Payer (MSP) recovery claim directly from the liability insurance (including self-insurance), no-fault insurance, or workers' compensation law or plan.
Barbara Wright, (410) 786–4292. Cynthia Ginsburg, (410) 786–2579.
When the Medicare program was enacted in 1965, Medicare was the primary payer for all medically necessary covered and otherwise reimbursable items and services, with the exception of those items and services covered and payable by workers' compensation. In 1980, the Congress enacted the Medicare Secondary Payer (MSP) provisions of the Social Security Act (the Act), which added section 1862(b) to the Act and established Medicare as the secondary payer to certain primary plans. Primary plan, as defined in section 1862(b)(2)(A) of the Act, means a group health plan or large group health plan, workers' compensation law or plan, automobile or liability insurance policy or plan (including self-insured plan) or no-fault insurance.
Section 1862(b)(2) of the Act, in part, prohibits Medicare from making payment where payment has been made or can reasonably be expected to be made by a primary plan. If payment has not been made or cannot reasonably be expected to be made by a primary plan, Medicare may make conditional payments with the expectation that the payments will be reimbursed to the appropriate Medicare Trust Fund. That is, Medicare may pay for medical claims with the expectation that it will be repaid if the beneficiary obtains a settlement, judgment, award, or other payment. A primary plan and any entity that receives payment from a primary plan shall reimburse the appropriate Medicare Trust Fund for Medicare's payments for items and services if it is demonstrated that such primary plan has or had responsibility to make payment with respect to such items and services.
The responsibility for payment on the part of workers' compensation, liability insurance (including self-insurance), and no-fault insurance is generally demonstrated by a settlement, judgment, award, or other payment (including, for example, assuming ongoing responsibility for medicals (ORM)). When such occurs, the settlement, judgment, award or other payment is subject to the Act's MSP provisions because a “payment has been made” with respect to medical care of a beneficiary related to that settlement, judgment, award or other payment. Section 1862(b)(2)(B)(iv) of the Act provides the federal government subrogation rights to any right under MSP of an individual or any other entity to payment for items or services under a primary plan, to the extent Medicare payments were made for such medical items and services. Moreover, section 1862(b)(2)(B)(iii) of the Act provides the federal government a direct right of action to recover conditional payments made by Medicare. This direct right of action, which is separate and independent from Medicare's statutory subrogation rights, may be brought to recover conditional payments against any or all entities that are or were responsible for making payment for the items and services under a primary plan. Under the direct right of action, the federal government may also recover from any entity that has received payment from a primary plan or the proceeds of a primary plan's payment to any entity.
Moreover, the MSP statute requires a “demonstration of primary payment responsibility;” it does not require that CMS prove that the alleged incident or injury caused particular medical care. A primary plan's responsibility for payment may be demonstrated by a judgment, a payment conditioned upon the recipient's compromise, waiver, or release (whether or not there is a determination of liability) of payment or otherwise. A settlement, judgment, award, or other payment (including, for example, an assumption of ORM) is sufficient to demonstrate primary payment responsibility for what has been claimed, released, or released in effect.
The Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act) was signed into law by President Obama on January 10, 2013, and amends the Act's MSP provisions (found at 42 U.S.C. 1395y(b)). Specifically, section 201 of the SMART Act added paragraph (viii) to section 1862(b)(2)(B) of the Act. This new clause requires Medicare to promulgate regulations establishing a right of appeal and an appeals process, with respect to any determination for which the Secretary is seeking to recover payments from an applicable plan (as defined in the MSP provisions), under which the applicable plan involved, or an attorney, agent, or third-party administrator on behalf of the applicable plan, may appeal such a determination. Further, the individual furnished such an item and/or service shall be notified of the applicable plan's intent to appeal such a determination. For purposes of this provision, the term applicable plan refers to liability insurance (including self-insurance), no-fault insurance, or a workers' compensation law or plan, as defined at section 1862(b)(8)(F) of the Act.
Currently, if an MSP recovery demand is issued to the beneficiary as the identified debtor, the beneficiary has formal administrative appeal rights and eventual judicial review as set forth in subpart I of part 405. If the recovery demand is issued to the applicable plan as the identified debtor, currently the applicable plan has no formal administrative appeal rights or judicial review. CMS' recovery contractor addresses any dispute raised by the applicable plan, but there is no multilevel formal appeal process.
Subpart I of part 405, provides for a multilevel process including a redetermination by the contractor issuing the recovery demand, a reconsideration by a Qualified Independent Contractor (QIC), an Administrative Law Judge (ALJ) hearing,
In the December 27, 2013
We received approximately 19 timely pieces of public correspondence on the December 27, 2013 proposed rule. Commenters included insurance industry associations and organizations, beneficiary and other advocacy groups, entities offering MSP compliance services, and health insurance plans. The commenters generally supported our proposals.
Because of the type of comments received, we are using the following approach to structure this section of the final rule:
• Presenting the proposed provision(s) based on topic area(s) of the public comments.
• Providing the proposed provisions for which we did not received public comments.
• Providing and responding to the public comments that do not “fit” in the topic areas noted previously. The following is a list of the regulatory provisions that would be revised or added in accordance with the December 13, 2013 proposed rule:
• § 405.900 Basis and scope
• § 405.902 Definitions
• § 405.906 Parties to the initial determinations, redeterminations, reconsiderations, hearings, and reviews
• § 405.910 Appointed representatives
• § 405.921 Notice of initial determination
• § 405.924 Actions that are initial determinations
• § 405.926 Actions that are not initial determinations
• Proposed § 405.947 Notice to the beneficiary of applicable plan's request for a redetermination
In this section of the final rule we provide a general overview and a response to the public comments received, grouped under the following topics:
We proposed adding the following definition for “applicable plan” in § 405.902, Definitions: “
In order for an action to be subject to the appeal process set forth in subpart I of 42 CFR part 405, there must be an “initial determination.” Section 405.924, Actions that are initial determinations, addresses actions that are initial determinations (and thus subject to appeal) for purposes of part 405 subpart I. We proposed adding paragraph (b)(15) to this section to specifically provide that where Medicare is pursuing recovery directly from an applicable plan, there is an initial determination with respect to the amount and the existence of the recovery claim. This addition would generally parallel the existing provisions of § 405.924(b)(14) addressing pursuing MSP recovery claims from a beneficiary, provider, or supplier. In addition to these changes, for consistency, we proposed a number of technical and formatting changes.
Paragraph (a) of § 405.926, Actions that are not initial determinations, addresses actions that are not initial determinations (and thus not subject to appeal) for purposes of part 405 subpart I because such determinations are the sole responsibility of CMS. Generally under § 405.926(k) initial determinations with respect to primary payers are not initial determinations. In conjunction with the proposed addition of § 405.924(b)(15), we proposed adding an exception to § 405.926(k) for initial determinations set forth in § 405.924(b)(15). Additionally, we proposed to add a new paragraph § 405.926(a)(3) to clarify that a determination of the debtor for a particular MSP recovery claim is not an
After review and consideration of comments related to § 405.924 and § 405.926, we are finalizing the changes to these sections with modifications. In order to address the addition of a new paragraph (b)(15) to § 405.924 via the CY 2015 Physician Fee Schedule final rule with comment period (79 FR 68001), we will need to add proposed paragraph (b)(15) as paragraph (b)(16) and make conforming cross-references changes in § 405.906 and § 405.926(k).
We proposed to add paragraph (a)(4) to § 405.906, Parties to the initial determinations, redeterminations, reconsiderations, hearings, and reviews, to specify that an applicable plan is a party to an initial determination under proposed § 405.924(b)(15) where Medicare is pursuing recovery directly from the applicable plan. The applicable plan is the sole party to an initial determination when an applicable plan is a party. By “pursuing recovery directly from the applicable plan,” we mean that the applicable plan would be the identified debtor, with a recovery demand letter issued to the applicable plan (or its agent or representative) requiring repayment. If or when an applicable plan receives a courtesy copy of a recovery demand letter issued to a beneficiary, this does not qualify as “pursuing recovery directly from the applicable plan” and does not confer party status on the applicable plan. Making the applicable plan the sole party to the initial determination means that the applicable plan would also be the sole party to a redetermination or subsequent level of appeal with respect to that initial determination. We are also making a technical change in the section heading for § 405.906 (adding a comma before the phrase “and reviews”).
If we issue a demand to an identified debtor and later determine that it is appropriate to pursue recovery of some or all of the conditional payments at issue from a different identified debtor, a new separate demand will be issued, with appeal rights appropriate to the identified debtor in the new recovery demand.
After review and consideration of all comments related to § 405.906, we are finalizing the changes to this section with the modifications to the cross-references to § 405.924(b)(15) noted in section II.B.2. of this final rule.
We proposed adding paragraph (e)(4) to § 405.910, Appointed representatives, in order to provide applicable plans with the benefit of the existing rule for MSP regarding the duration of appointment for an appointed representative. We also proposed revising § 405.910(i)(4) to ensure that the special provision that beneficiaries as well as their representatives must receive notices or requests in an MSP case continues to apply only to beneficiaries. For all other parties, including an applicable plan, we continue to follow the regulatory provisions in § 405.910(i)(1) through (3). We did not propose any changes to § 405.912 which addresses the assignment of appeal rights.
Furthermore, we are specifying when a party appointing a representative must include the beneficiary's Medicare health insurance claim number (HICN) on the appointment of representation. We believe that it is not necessary for non-beneficiary parties to include the HICN as part of a valid appointment because an applicable plan or other non-beneficiary party seeking to appoint a representative under § 405.910 is not a beneficiary, and would thus not have a beneficiary HICN to provide on an appointment of representation. Accordingly, we are amending the existing § 405.910(c)(5) to state that an appointment of representation must identify the beneficiary's HICN when the beneficiary (or someone, such as an authorized representative or representative payee, acting on behalf of a beneficiary) is the party appointing a representative.
After review and consideration of comments related to § 405.910, we are finalizing the changes to this section as proposed and with the specification to paragraph (c)(5) explained previously.
We proposed adding a new paragraph (c) to § 405.921, Notice of initial determination, to provide specific language regarding requirements for notice to an applicable plan. Proposed § 405.921(c)(iv) states that in addition to other stated requirements in § 405.921(c), the requisite notice must contain “any other requirements specified by CMS.” We also proposed to add § 405.947, Notice to the beneficiary of applicable plan's request for a redetermination, to add language satisfying the requirement at section 1862(b)(2)(B)(viii) of the Act that the beneficiary receive notice of the applicable plan's intent to appeal where Medicare is pursuing recovery from the applicable plan. As the beneficiary would not be a party to the appeal at the redetermination level or subsequent levels of appeal, we believe that a single notice at the redetermination level satisfies the intent of this provision. We also proposed that the required notice be issued by a CMS contractor in order to ensure clarity and consistency in the wording of the notice. In addition to these changes, for consistency we proposed a number of technical and formatting changes.
After review and consideration of all comments regarding § 405.921 and § 405.947, we are finalizing these provisions as proposed with one modification. We are revising § 405.947(a) to read: “A CMS contractor must send notice of the applicable plan's appeal to the beneficiary.” We are eliminating the reference to “the contractor adjudicating the redetermination request” issuing the notice in order to allow for operational efficiencies, where applicable. Section 405.947(b) will continue to read: “(b) Issuance and content of the notice must comply with CMS instructions.”
In this section of the final rule, we note the proposed rule included a provision for which we did not receive any public comment. We proposed to amend § 405.900, Basis and scope, by revising paragraph (a) to add section 1862(b)(2)(B)(viii) of the Act as part of the statutory basis or Subpart I. Section 1862(b)(2)(B)(viii) requires an appeals process for applicable plans when Medicare pursues recovery directly from the applicable plan. We received no comments on this proposal; and therefore, are finalizing this provision without modification.
This section of the final rule responds to public comments that are not specific to topics described in section II.B. of this final rule.
This rule incorporates all of the provisions of the December 27, 2013 proposed rule with the following exceptions:
• In § 405.910(c)(5), we are revising the language to specify when an HICN is needed.
• In § 405.924, finalizing the addition of proposed paragraph (b)(15) as paragraph (b)(16). As a result of this change, we are also making conforming changes to the cross-references to this paragraph in §§ 405.906(a)(4) and (c), 405.921(c)(1), and 405.926(k).
• In § 405.947(a), we are removing the reference to “the contractor adjudicating the redetermination request” issuing the notice in order to allow for operational efficiencies, where applicable. Therefore, paragraph (a) will read “A CMS contractor must send notice of the applicable plan's appeal to the beneficiary.”
• In § 405.980, we are making a grammatical change to the section heading to match the grammatical change made to the section heading of § 405.906.
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).
We have examined the impact 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 (February 2, 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 (March 22, 1995; Pub. L. 104–4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). We have determined that the effect of this rule on the economy and the Medicare program is not economically significant. The rule provides a formal administrative appeal process for MSP recovery claims where the applicable plan is the identified debtor, as opposed to the current process which requires a CMS contractor to consider any defense submitted by an applicable plan but does not provide formal administrative appeal rights.
The RFA requires agencies to analyze options for regulatory relief 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 $7.5 million to $38.5 million in any 1 year. Individuals and states are not included in the definition of a small entity. We have determined and we certify that this rule would not have a significant economic impact on
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis (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 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. We have determined that this rule would not have a significant effect on the operations of a substantial number of small rural hospitals because it would simply expand and/or formalize existing rights with respect to MSP recovery claims pursued directly from an applicable plan. Therefore, we are not preparing an analysis for section 1102(b) of the Act.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This rule has no consequential effect on State, local, or tribal governments or on the private sector because it would simply expand and/or formalize existing rights with respect to MSP recovery claims pursued directly from an applicable plan.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this regulation does not impose any costs on State or local governments, the requirements of Executive Order 13132 are not applicable.
In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
Administrative practice and procedure, Health facilities, Health professions, Kidney diseases, Medical devices, Medicare, Reporting and recordkeeping requirements, Rural areas, X-rays.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 42 CFR part 405 as set forth below:
Secs. 205(a), 1102, 1861, 1862(a), 1869, 1871, 1874, 1881, 1886(k) of the Social Security Act (42 U.S.C. 405(a), 1302, 1395x, 1395y(a), 1395ff, 1395hh, 1395kk, 1395rr and 1395ww(k)), and sec. 353 of the Public Health Service Act (42 U.S.C. 263a).
(a)
(1) Section 1869(a) through (e) and (g) of the Act.
(2) Section 1862(b)(2)(B)(viii) of the Act.
The additions and revision read as follows:
(a) * * *
(4) An applicable plan for an initial determination under § 405.924(b)(16) where Medicare is pursuing recovery directly from the applicable plan. The applicable plan is the sole party to an initial determination under § 405.924(b)(16) (that is, where Medicare is pursuing recovery directly from the applicable plan).
(c) * * *. This paragraph (c) does not apply to an initial determination with respect to an applicable plan under § 405.924(b)(16).
The revisions and addition read as follows:
(c) * * *
(5) Identify the beneficiary's Medicare health insurance claim number when the beneficiary is the party appointing a representative;
(e) * * *
(4) For an initial determination of a Medicare Secondary Payer recovery claim, an appointment signed by an applicable plan which has party status in accordance with § 405.906(a)(1)(iv) is valid from the date that appointment is signed for the duration of any subsequent appeal, unless the appointment is specifically revoked.
(i) * * *
(4) For initial determinations and appeals involving Medicare Secondary Payer recovery claims where the beneficiary is a party, the adjudicator sends notices and requests to both the beneficiary and the beneficiary's representative, if the beneficiary has a representative.
(c)
(i) The reasons for the determination.
(ii) The procedures for obtaining additional information concerning the contractor's determination, such as a specific provision of the policy, manual, law or regulation used in making the determination.
(iii) Information on the right to a redetermination if the liability insurance (including self-insurance), no-fault insurance, or workers' compensation law or plan is dissatisfied with the outcome of the initial determination and instructions on how to request a redetermination.
(iv) Any other requirements specified by CMS.
(2) [Reserved]
The addition reads as follows:
(b) * * *
(16) Under the Medicare Secondary Payer provisions of section 1862(b) of the Act that Medicare has a recovery claim if Medicare is pursuing recovery directly from an applicable plan. That is, there is an initial determination with respect to the amount and existence of the recovery claim.
The addition and revision read as follows:
(a) * * *
(3) Determination under the Medicare Secondary Payer provisions of section 1862(b) of the Act of the debtor for a particular recovery claim.
(k) Except as specified in § 405.924(b)(16), determinations under the Medicare Secondary Payer provisions of section 1862(b) of the Act that Medicare has a recovery against an entity that was or is required or responsible (directly, as an insurer or self-insurer; as a third party administrator; as an employer that sponsors, contributes to or facilitates a group health plan or a large group health plan; or otherwise) to make payment for services or items that were already reimbursed by the Medicare program.
(a) A CMS contractor must send notice of the applicable plan's appeal to the beneficiary.
(b) Issuance and content of the notice must comply with CMS instructions.
Federal Communications Commission.
Correcting amendment.
The Federal Communications Commission (Commission) published a document in the
This correcting amendment is effective February 27, 2015. An initial certification will be due October 15, 2015.
Eric P. Schmidt, Attorney Advisor, Public Safety and Homeland Security Bureau, (202) 418–1214 or
The document published by the Commission in the
Certification, Telecommunications.
Accordingly, 47 CFR part 12 is corrected by making the following correcting amendments:
Sections 1, 4(i), 4(j), 4(o), 5(c), 218, 219, 301, 303(g), 303(j), 303(r), 332, 403, 621(b)(3), and 621(d) of the Communications Act of 1934, as amended, 47 U.S.C. 151,
(d) * * *
(1)
Federal Transit Administration (FTA), DOT.
Notice of Final Interim Safety Certification Training Provisions.
This document announces interim safety certification training provisions for Federal and State Safety Oversight Agency personnel and their contractor support who conduct safety audits and examinations of public transportation systems not otherwise regulated by another Federal agency. This document also announces interim safety certification training provisions for public transportation agency personnel who are directly responsible for safety oversight of public transportation systems that receive Federal transit funding. Additionally, the document outlines voluntary, scalable training available to personnel of State Departments of Transportation and personnel directly responsible for safety oversight of urban and rural bus transit systems.
The interim provisions are effective May 28, 2015.
For program issues, contact Ruth Lyons, FTA, Office of Safety and Oversight, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202–366–2233 or email:
On October 1, 2012, the Moving Ahead for Progress in the 21st Century Act (MAP–21) (Pub. L. 112–141) authorized the Federal Transit Administration (FTA) to develop interim safety certification training provisions (interim program) for: 1) FTA and State agency personnel and their contractor support who conduct safety audits and examinations of public transportation systems; and 2) public transportation agency personnel who are directly responsible for safety oversight. A notification announcing FTA's proposed implementation of the interim program and request for comments was published in the
In that document, FTA stated that the focus of the interim program would be directed primarily towards requirements for Federal and State Safety Oversight Agency (SSOA) personnel and their contractor support while designated safety oversight personnel of both rail and non-rail transit agencies that receive FTA funding would be voluntary participants. FTA received comments from nineteen entities regarding its proposed implementation of the interim program. This document addresses comments received and explains changes FTA has made to implement the interim program in response to those comments.
The primary focus for the interim program remains on the training requirements for Federal personnel and their contractor support who conduct safety audits and examinations of public transportation systems, and SSOA personnel and their contractor support who conduct safety audits and examinations of rail transit systems. However, as recommended by commenters, FTA is expanding the interim program pursuant to 49 U.S.C. 5329(c)(2), to also require rail transit agency employees who are directly responsible for safety oversight as mandatory instead of voluntary participants. Compliance with the interim program will remain a grant condition for applicable recipients of Federal transit funding.
Additionally, as a result of comments received, FTA has revised the interim program to recognize the experience and training of those safety professionals who have already completed the curriculum for the Transit Safety Security Program (TSSP) certificate program. These participants will only be required to complete specific Safety Management System (SMS) courses and applicable technical training in accordance with section V of this document. For those who have not yet completed the TSSP program, FTA is updating the curriculum to include an emphasis on SMS tools and techniques to promote the development, implementation and oversight of SMS safety policies, risk management, safety assurance, and safety promotion programs and initiatives. The revised curriculum will continue to support the requirements of 49 CFR part 659, by also providing for organization-wide safety policy, formal methods of identifying hazards and controlling their potential consequences, continual assessment of safety risk, and an effective employee safety reporting system.
Recognizing that safety enhancement and promotion is of universal interest to the public transportation industry, FTA continues to encourage recipients with both bus and rail transit systems, as well as bus-only systems, to
As a reminder, pursuant to 49 U.S.C. 5329(c)(1), FTA will establish the permanent Public Transportation Safety Certification Training Program (PTSCTP) through the rulemaking process. To that end, FTA issued an Advance Notice of Proposed Rulemaking (ANPRM) on all aspects of FTA's safety authority, including the training program, which was published in the
Until the PTSCTP final rule is promulgated, the interim program will be in effect. In the meantime, FTA periodically may revise the interim program following an opportunity for public notice and comment.
On April 30, 2014, FTA published a
FTA initially proposed that the interim program contain distinct mandatory and voluntary components. Each mandatory participant was to complete a series of training on SMS principles, tools and techniques. The proposed curriculum for the interim program would be organized around a series of competencies and basic skills that supported training gaps indicated through a review of National Transportation Safety Board (NTSB) accident investigations, SSOA audits, FTA's Program Oversight reviews, annual reports submitted by SSOAs, FTA's National Transit Database (NTD) assessments and special studies.
In addition, FTA proposed that Federal and SSOA personnel and their respective contractor support would be required to develop technical training plans to address the competency areas specific to the rail transit system(s) for which they exercised safety oversight responsibility (
Below are the questions FTA posed for public comment in the
1. Are there existing safety certification programs other than those described in this document that FTA should consider for personnel with direct safety oversight of transit systems?
Fourteen entities responded to this question noting the existence of other safety certification programs that address SMS principles that FTA should consider. Specific reference was made to the National Safety Council, World Safety Organization, Transportation Safety Institute, the American Society of Safety Engineers, Board of Certified Safety Professionals, National Association of Safety Professionals, Federal Railroad Administration (FRA), NTSB, vehicle manufacturer training and certification programs, and safety classes offered through colleges, universities, and technical schools.
Commenters recommended that FTA provide `transfer credit' for those who have completed the appropriate certification requirements from these or similar programs. Some commenters indicated that FTA's proposed implementation was unreasonable because it did not leverage the existing TSSP Certificate program. They noted that over 700 transit industry personnel have received certificates through the TSSP program. These commenters indicated that the TSSP curriculum already covers a significant number of the competencies that FTA listed in the Appendix to the
FTA also agrees that the existing TSSP Certificate curriculum should be revised to incorporate the SMS principles FTA has adopted, rather than FTA creating an entirely new curriculum for the interim program. Thus, the training required for participants who have not completed TSSP Certificate training will be very similar to the current TSSP Certificate curriculum, except that the curriculum will be modified to also include SMS principles. These participants would also need to complete the applicable technical training. Similarly, safety professionals who have begun, but not yet completed, the requirements for a TSSP certificate only will need to complete the remaining revised TSSP courses and the supplemental SMS courses noted in Section V. As with the current TSSP program, the revised TSSP program and the additional courses may be completed within three years of the date of enrollment in the TSSP Certificate program.
Although commenters identified other non-FTA-sponsored SMS safety certification training programs for consideration, at this time FTA will not evaluate non-FTA-sponsored training for credit under the interim program. Credit for this type of training will be evaluated for consideration as FTA develops requirements for the proposed rule for the PTSCTP. However, as recommended by commenters, SSOAs will be able to include non-FTA- sponsored technical training as part of the technical training plan they will provide to FTA for evaluation as discussed in Section V of this document.
2. How should FTA consider such additional training and certification programs in finalizing the interim provisions?
Twelve of the fourteen entities who commented on this question indicated that FTA should allow experienced personnel who have already completed safety training requirements to be `grandfathered' from the requirements of the interim program and receive credit for their certifications and experience. A few commenters noted that some of these safety professionals often are utilized as instructors for FTA-sponsored training. Two of the commenters indicated that FTA should not attempt to implement the interim program with significantly new and different requirements because SSO programs must continue to comply with 49 CFR part 659 until three years after the final SSOA rule becomes effective.
FTA disagrees with those commenters who suggested that the interim program should not include significantly new and different requirements at this time. FTA recognizes that 49 CFR part 659 remains in effect for the near-term and that the TSSP curriculum for rail certification was developed to support the systems management requirements of part 659. However, the current TSSP curriculum is not fully adaptable to the SMS framework FTA has adopted. FTA believes the revised TSSP curriculum and the SMS training noted in Section V of this document aligns systems management and SMS training while addressing those gaps identified with the current TSSP curriculum.
3. FTA sought comment on the proposal to require Federal and SSOA personnel and their contractor support to participate in the interim program but allow the voluntary participation of public transportation personnel with direct safety oversight responsibilities.
FTA received comments from eighteen entities regarding this proposal. Five commenters indicated that all public transportation safety personnel with direct oversight responsibility should be required to participate in the interim program. Eleven commenters specifically recommended that personnel directly responsible for safety oversight of rail transit systems should be required to participate in the interim program. Three commenters indicated that personnel directly responsible for bus safety on the State level or rural bus transit systems should not be required participants in the interim program. One of these commenters noted that the bus transit systems operating within its State were small, rural providers that do not have the resources to participate in the proposed voluntary curriculum of the interim program.
A number of the commenters indicated that both SSOA personnel and rail transit personnel should receive the same SMS-centric training. These commenters suggested that if rail transit personnel are not required to participate in the interim program, it could result in disjointed implementation of the SMS safety requirements that FTA is introducing across the rail transit industry. These commenters noted that rail transit agency safety oversight personnel should have a strong understanding of both SMS principles and the technical components of their systems which lead to more effective safety management.
Five commenters also noted that voluntary training requirements for rail transit personnel could result in a lack of participation by these safety partners. They indicated that voluntary participation could be a disincentive for public transit systems to host such training. Commenters noted that FTA's current training delivery model relies on local public transportation systems to host FTA-sponsored training events and voluntary participation could inadvertently increase the costs associated with the training. Three commenters also noted that joint SSOA and rail transit system participation in the interim program could facilitate cooperative relationships between State regulators and the regulated community.
One commenter suggested that at a minimum, the Chief Safety Officer (or equivalent) of rail transit agencies and their staff should be required to obtain certification. Other commenters indicated that FTA should determine which rail transit personnel should be designated directly responsible for safety oversight, including the chief executive and board of directors. Lastly, one commenter indicated that the interim program should include personnel involved with the design and construction of rail transit systems.
On the other hand, FTA does not concur with the recommendation that FTA should determine which specific persons or positions within a rail transit system should be designated as having direct responsibility for safety oversight. Similar to the designation of safety sensitive personnel noted in the FTA Drug and Alcohol regulations, 49 CFR part 655, FTA believes that each rail transit system is in a better position to determine which of its personnel has direct responsibility for safety oversight. FTA understands that the unique organizational framework of each rail transit system does not allow for uniform designation of the same position or function as having direct responsibility for safety oversight. For this reason, each rail transit system will designate its personnel who are required to participate in the interim program based on the function(s) of their position.
For those commenters who indicated that bus recipients should not be required participants, FTA reiterates that since one of the initial objectives of the interim program is to develop the technical proficiency of rail transit personnel with direct safety oversight responsibility, at this time, non-rail safety oversight personnel are not mandatory participants in the interim program. FTA encourages State DOT personnel and bus transit system personnel who are directly responsible for safety oversight of bus transit systems to voluntarily participate in the interim program. We further emphasize that participation by small rural bus-only transit providers in any component of the interim program will be strictly voluntary. Hence, the scale and level of participation will be left to the discretion of these entities.
In response to the comment to expand required participants to include personnel involved with the design and construction of rail transit operating systems, FTA notes that MAP–21 does not require their participation in the interim program. Hence, FTA will not require their participation in the interim program.
4. Are there segments of the existing TSSP program that might be utilized to address the gaps and proposed competencies identified by FTA?
FTA received comments from twelve entities on this question. Two commenters indicated that FTA did not present sufficient information in the
Ten of the commenters suggested that FTA take another look at the TSSP curriculum and other FTA-sponsored training before implementing a new and untested training regime. Two of these commenters noted that FTA should wait until it has gained sufficient knowledge and experience, and developed the internal capacity before implementing an extensive new safety certification training program.
One commenter noted that SMS should not replace current FTA-sponsored training which is based in part on Military Standard 882 series, the military's system safety program. Two commenters also noted that the all-hazards training in the TSSP program is complementary to the SMS-framework that FTA wishes to advance through the interim program.
Responding to those commenters who indicated FTA has not provided evidence to support the interim program, we note that as stated in the April 30, 2014
In response to the commenter who indicated that FTA should not replace the current training program for 49 CFR part 659, which is in part based on the Military Standard 882 series, FTA notes that the revised interim program includes the TSSP Certificate curriculum that was developed to support part 659. Therefore, FTA will proceed with implementing the interim program in accordance with 49 U.S.C. 5329(c)(2).
5. Is it possible to reduce the time commitment or other burdens associated with the proposed interim provisions, while still providing the necessary SMS and technical training? What additional or alternative training should be considered, and why?
FTA received comments from seventeen entities on this question. Many of these commenters recommended that FTA leverage the TSSP Certificate program with web-based SMS training as a more appropriate course of action for implementing interim safety certification training, and include a test-out option for those capable of demonstrating proficiency in the relevant training competencies.
Three commenters noted that FTA should reevaluate the need for 144 hours of SMS-related training that was initially proposed. Other commenters indicated that the three-year timeframe proposed for completing the interim program was impractical based on the timeline between introducing the interim program and implementing the PTSCTP requirements. Three commenters noted that the proposed annual recertification for the interim program would not be realistic and would be an unnecessary administrative compliance burden. Two of the commenters indicated that FTA should provide more specific information regarding recertification/refresher training.
Several commenters also recommended that FTA develop all of the training and host both technical and classroom training at various rail transit systems across the country. Three commenters suggested that FTA adopt the web-based training model used by the Pipeline and Hazardous Materials Safety Administration (PHMSA).
One commenter suggested that training requirements for rural and tribal bus transit providers should focus on driver training, drug and alcohol compliance, vehicle maintenance and standards, and the outcome data reported to the NTD. Another commenter recommended that FTA use a “train-the-trainer” approach for training delivery as a means of reducing cost and increasing convenience by expanding the availability of training sites. Lastly, other commenters indicated that FTA should cover the costs associated with the interim program.
FTA recognizes that requiring the participation of rail transit system personnel who are directly responsible for safety oversight increases the number of required participants. However, as noted in the April 30, 2014
Additionally, FTA concurs with the commenters who indicated that annual refresher training for the interim program would be an unnecessary
Regarding training delivery, FTA believes its current training delivery model of allowing public transportation systems to host FTA-sponsored training onsite is effective for the transit industry. FTA believes this practice increases participation and provides a training environment that is relevant to the subject matter. FTA notes that the PHMSA web-based training delivery model cannot fully cross-walk to the training objectives of the interim program because many of the FTA-sponsored courses require in-person delivery. However, FTA recognizes the benefits associated with web-based training and has revised some of the interim program curriculum to include web-based training. As the PTSCTP rule is developed, FTA will look to incorporate additional web-based training where practical.
In response to the recommendation for the focus of rural bus training requirements, FTA notes that the interim program does not preclude any rural or tribal bus transit agency from continuing to focus on the training needs most relevant to its organization. It is important to note that much of this training is already supported through FTA-sponsored programs for bus safety and technical assistance.
FTA also supports the recommendation that the interim program adopt a train-the-trainer process. While it is not feasible to develop and implement a train-the-trainer process for the interim program, FTA will consider this recommendation as the agency develops the proposed rule for the PTSCTP.
With regard to the recommendation that FTA fully fund all costs associated with the interim program, FTA notes that Congress specifically authorized recipients of funds under 49 U.S.C. 5307 and 5311 to use up to 0.5 percent of their Federal formula funds to cover up to 80 percent of the cost of participation by an employee with direct safety oversight responsibility. The FTA ELearning courses are free to public agency staff and the FTA sponsored in-person training charges a small materials fee but does not charge tuition to public agency staff. In addition, recipients of funds pursuant to 49 U.S.C. 5329 are authorized to use grant funds to pay for up to 80 percent of the cost of participation by an SSOA employee. Therefore, FTA is statutorily precluded from funding more than 80 percent of the cost for participating in the interim program.
6. Is it possible to reduce the time commitment or other burdens associated with the proposed technical training requirements proposed for SSOA personnel and their contractors? Is there additional or alternative technical training that should be considered, and why?
Fifteen entities responded to this question. Seven commenters suggested that FTA develop the technical training component for the interim program instead of the SSOAs. Three commenters recommended that FTA reinstate the annual SSO training conference and workshop which would assist FTA in delivering training to the SSOAs. Another commenter recommended that SSOAs and rail transit agencies form partnerships with other subject matter experts to conduct technical training best suited for their respective systems.
Commenters also suggested that credit should be given for existing training and experience, including allowing credit for technical knowledge gained during audits and review of transit maintenance and inspection activities, and that the SSOA should determine the time required for conducting technical training. One commenter also recommended that FTA provide guidance on the level of proficiency expected for the technical program.
Two commenters requested clarification regarding the training requirements for SSOAs that are responsible for transit systems in multiple jurisdictions. Two other commenters indicated that FTA should take responsibility for determining the appropriate certification requirements for SSOA contractor support with a national certification process. One commenter also noted that the State should be allowed to determine the length of initial and refresher technical training required for its SSOA personnel. Lastly, two commenters suggested that FTA should fund the cost of the interim program beyond the Federal funds provided for under section 5329 grants.
However, FTA does not agree that FTA should develop and deliver the technical training for the interim program. In the April 30, 2014
With regard to developing the SSOA training plan, FTA notes that one objective of the technical training plan is to align the technical training with the SSO certification work plans that most States have submitted to FTA as part of the requirements under 49 U.S.C. 5329(e). In the technical training plan, the SSOA will identify how its personnel and contractor support will train to the competencies of the technical training component in Section V of this document. Those SSOA's with rail transit systems in multiple jurisdictions will have the option of developing a consolidated technical training plan or preparing separate plans for each rail transit system. FTA will provide technical assistance to the SSOAs in developing the technical training plan and provide a web-based template to assist with this process.
In addition, FTA concurs with those commenters who indicated that credit should be granted for prior technical training and experience including technical knowledge gained through audits and examinations. FTA also concurs that some of the technical training competencies may be achieved through web-based training. To that end, SSOAs may leverage such training as they develop their technical training
In response to the recommendation that FTA provide a national certification for contractors who support SSOAs with conducting audits and examinations, FTA notes that the SSOA is responsible for ensuring that its contractors are qualified to perform the requirements of their respective contracts. Contractor personnel performing safety audits and examinations for the SSOA will be required to participate in the same interim safety certification training program noted in Section V as SSOA personnel; therefore, no additional certification process is required.
Regarding the issue of FTA funding all costs associated with training for the SSO program, FTA notes that Congress has provided for cost-sharing with the States for section 5329 funding for the SSO program. Specifically, Congress has limited the Government share of funding to 80 percent of the cost; therefore, FTA is precluded from funding all of an SSOA's costs for participating in the interim program.
The interim safety certification training provisions are designed to advance FTA's proposed adoption of SMS to improve the safety of public transportation. (See FTA Dear Colleague letter dated May 13, 2013, available at:
Pursuant to 49 U.S.C. 5329(c)(2), the interim safety certification training provisions will apply to the following covered personnel and will be effective until FTA issues a final rule for the PTSCTP:
(1) FTA personnel and contractors who conduct safety audits and examinations of public transportation systems;
(2) SSOA personnel and contractors who conduct safety audits and examinations of rail fixed guideway public transportation systems not subject to FRA regulation. In accordance with 49 U.S.C. 5329(e)(3)(E), each SSOA will designate its covered personnel or positions responsible for conducting the applicable safety audits and examinations and identify them in its annual FTA certification reporting requirements;
(3) Designated employees of re-cip-i-ents with rail transit systems subject to 49 CFR part 659 who are
(a) Each recipient will designate its covered personnel who are
(b) At a minimum, covered personnel should include the Chief Safety Officer and the primary staff directly responsible for safety oversight of the recipient's rail transit system. Directly responsible means safety staff who participate in the development, implementation or maintenance of the requirements of the oversight agency's program standard.
(4) The following personnel may
(a) Personnel employed by recipients of Federal transit funds who are directly responsible for safety oversight of non-rail transit systems (
(b) Personnel of State DOTs or other State entities that receive Federal transit funds, who are directly responsible for safety oversight of non-rail transit systems such as passenger ferry, bus, bus rapid transit, and community transportation providers.
Each SSOA shall develop a technical training plan for covered personnel and contractor support personnel who perform safety audits and examinations. The SSOA will submit its proposed technical training plan to FTA for review and evaluation as part of the SSOA certification program in accordance with 49 U.S.C. 5329€(7). This review and approval process will support the consultation required between FTA and SSOAs regarding the staffing and qualification of the SSOAs' employees and other designated personnel in accordance with 49 U.S.C. 5329€(3)(D).
SSOA's should submit their technical training plan to FTA via the following Web site:
Recognizing that each rail fixed guideway public transportation system has unique characteristics, each SSOA will identify the tasks related to inspections, examinations, and audits, and all activities requiring sign-off, which must be performed by the SSOA to carry out its safety oversight requirements, and identify the skills and
At a minimum, the technical training plan will describe the process for receiving technical training from the rail transit agencies in the following competency areas appropriate to the specific rail fixed guideway system(s) for which safety audits and examinations are conducted:
The SSOA will determine the length of time for the technical training based on the skill level of the covered personnel relative to the applicable rail transit agency(s). FTA will provide a template on its Web site to assist the SSOA with preparing and monitoring its technical training plan and will provide technical assistance as requested. Each SSOA technical training plan that is submitted to FTA for review will:
The title and date each training course was completed and the proficiency test score(s) where applicable;
The content of each training course successfully completed;
A description of the covered personnel's hands-on performance applying the skills and knowledge required to perform the tasks that the employee will be responsible for performing and the factual basis supporting the determination;
The tasks the covered personnel is deemed qualified to perform; and
Provide the date that the covered personnel's status as qualified to perform the tasks expires, and the date in which biennial refresher training is due.
○ Ensure the qualification of contractors performing oversight activities. SSOAs may use demonstrations, previous training and education, and written and oral examinations to determine if contractors possess the skill and qualification required to perform their tasks.
○ Periodically assess the effectiveness of the technical training. One method of validation and assessment could be through the use of efficiency tests or periodic review of employee performance.
In February 2014, in compliance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
1. FTA will host an informational webinar discussing the interim training program on or about 45 days after publication.
2. Covered personnel will be able to log-in to FTA's Web site
3. FTA will provide technical assistance to SSOAs at
Animal and Plant Health Inspection Service, USDA.
Advance notice of proposed rulemaking and request for comments.
In accordance with the Agricultural Bioterrorism Protection Act of 2002, we are soliciting public comment regarding the list of select agents and toxins that have the potential to pose a severe threat to animal or plant health, or to animal or plant products. The Act requires the biennial review and republication of the list of select agents and toxins and the revision of the list as necessary. Accordingly, we are soliciting public comment on the current list of select agents and toxins in our regulations and suggestions regarding any addition or reduction of the animal or plant pathogens currently on the list of select agents.
We will consider all comments that we receive on or before April 28, 2015.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Dr. Charles L. Divan, Unit Director, Agricultural Select Agent Services, APHIS, 4700 River Road Unit 2, Riverdale, MD 20737–1231; (301) 851–3300.
The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 provides for the regulation of certain biological agents and toxins that have the potential to pose a severe threat to human, animal, and plant health, or to animal and plant products. The Animal and Plant Health Inspection Service (APHIS) has the primary responsibility for implementing the provisions of the Act within the U.S. Department of Agriculture (USDA). Veterinary Services (VS) select agents and toxins, listed in 9 CFR 121.3, are those that have been determined to have the potential to pose a severe threat to animal health or animal products. Plant Protection and Quarantine (PPQ) select agents and toxins, listed in 7 CFR 331.3, are those that have been determined to have the potential to pose a severe threat to plant health or plant products. Overlap select agents and toxins, listed in 9 CFR 121.4, are those that have been determined to pose a severe threat to public health and safety, to animal health, or to animal products. Overlap select agents are subject to regulation by both APHIS and the Centers for Disease Control and Prevention, which has the primary responsibility for implementing the provisions of the Act for the Department of Health and Human Services.
Title II, Subtitle B of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (which is cited as the “Agricultural Bioterrorism Protection Act of 2002” and referred to below as the Act), section 212(a), provides, in part, that the Secretary of Agriculture (the Secretary) must establish by regulation a list of each biological agent and each toxin that the Secretary determines has the potential to pose a severe threat to animal or plant health, or to animal or plant products.
In determining whether to include an agent or toxin in the list, the Act requires that the following criteria be considered:
• The effect of exposure to the agent or toxin on animal or plant health, and on the production and marketability of animal or plant products;
• The pathogenicity of the agent or the toxin and the methods by which the agent or toxin is transferred to animals or plants;
• The availability and effectiveness of pharmacotherapies and prophylaxis to treat and prevent any illness caused by the agent or toxin; and
• Any other criteria that the Secretary considers appropriate to protect animal or plant health, or animal or plant products.
Paragraph (a)(2) of section 212 of the Act requires the Secretary to review and republish the list of select agents and toxins every 2 years and to revise the list as necessary. To fulfill this statutory mandate, PPQ and VS each convene separate interagency working groups in order to review the lists of PPQ and VS select agents and toxins, as well as any overlap select agents and toxins, and develop recommendations regarding possible changes to the list using the four criteria for listing found in the Act. In this document, we are asking for comments on the current list
This action has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
7 U.S.C. 8401; 7 CFR 2.22, 2.80, 371.3, and 371.4.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of public meeting and availability of preliminary technical support document.
The U.S. Department of Energy (DOE) will hold a public meeting to discuss and receive comments on the preliminary analysis it has conducted for purposes of establishing energy conservation standards for portable air conditioners (ACs). The meeting will cover the analytical framework, models, and tools that DOE is using to evaluate potential standards for this product; the results of preliminary analyses performed by DOE for this product; the potential energy conservation standard levels derived from these analyses that DOE could consider for this product; and any other issues relevant to the development of energy conservation standards for portable ACs. In addition, DOE encourages written comments on these subjects. To inform interested parties and to facilitate this process, DOE has prepared an agenda, a preliminary technical support document (TSD), and briefing materials, which are available on the DOE Web site at:
Meeting: DOE will hold a public meeting on Wednesday, March 18, 2015, from 1 p.m. to 5 p.m., in Washington, DC. The meeting will also be broadcast as a webinar. See section IV, “Public Participation,” of this notice of public meeting (NOPM) for webinar registration information, participant instructions, and information about the capabilities available to webinar participants.
Comments: DOE will accept comments, data, and information regarding this preliminary analysis before and after the public meeting, but no later than April 28, 2015. See section IV, “Public Participation,” for details.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E–089, 1000 Independence Avenue SW., Washington, DC 20585–0121.
Any comments submitted must identify docket number EERE–2013–BT–STD–0033 and/or regulatory information number (RIN) number 1904–AD02. Comments may be submitted using any of the following methods:
•
•
•
•
A link to the docket Web page can be found at:
Mr. Ronald Majette, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE–5B, 1000 Independence Avenue SW., Washington, DC 20585–0121. Telephone: (202) 586–7935. Email:
For further information on how to submit a comment or review other public comments and the docket, contact Ms. Brenda Edwards at (202) 586–2945 or by email:
Title III, Part B
(1) Classifying the product as a covered product is necessary for the purposes of EPCA; and
(2) The average annual per-household energy use by products of each type is
To prescribe an energy conservation standard pursuant to 42 U.S.C. 6295(o) and (p) for covered products added pursuant to 42 U.S.C. 6292(b)(1), the Secretary must also determine that:
(1) The average household energy use of the products has exceeded 150 kWh per household for a 12-month period;
(2) The aggregate 12-month energy use of the products has exceeded 4.2 terawatt-hours (TWh);
(3) Substantial improvement in energy efficiency is technologically feasible; and
(4) Application of a labeling rule under 42 U.S.C. 6294 is unlikely to be sufficient to induce manufacturers to produce, and consumers and other persons to purchase, covered products of such type (or class) that achieve the maximum energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(l)(1))
Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for: (1) Certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) making representations about the efficiency of those products. Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA.
In prescribing a new or amended energy conservation standard, DOE is required to consider standards that: (1) Achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified; and (2) result in significant conservation of energy. (42 U.S.C. 6295(o)(2)(A) and (o)(3)(B)) To determine whether a proposed standard is economically justified, DOE will, after receiving comments on the proposed standard, determine whether the benefits of the standard exceed its burdens to the greatest extent practicable, using the following seven factors:
1. The economic impact of the standard on manufacturers and consumers of products subject to the standard;
2. The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products which are likely to result from the standard;
3. The total projected amount of energy savings likely to result directly from the standard;
4. Any lessening of the utility or the performance of the covered products likely to result from the standard;
5. The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
6. The need for national energy conservation; and
7. Other factors the Secretary of Energy considers relevant.
Before proposing a standard, DOE typically seeks public input on the analytical framework, models, and tools that DOE will use to evaluate standards for the product at issue and the results of preliminary analyses DOE performed for the product. This notice announces the availability of the preliminary TSD, which details the preliminary analyses, discusses the comments DOE received from interested parties that are relevant to the rulemaking, and summarizes the preliminary results of DOE's analyses. In addition, DOE is announcing a public meeting to solicit feedback from interested parties on its analytical framework, models, and preliminary results.
Under the authority established in EPCA, DOE published a notice of proposed determination that tentatively determined that portable ACs qualify as a covered product. 78 FR 40403 (July 5, 2013). DOE tentatively determined that (1) classifying portable ACs as a covered product is necessary or appropriate to carry out the purposes of EPCA, and (2) the average U.S. household energy use for portable ACs is likely to exceed 100 kilowatt-hours (kWh) per year. (42 U.S.C. 6292(b)(1))
DOE published a Notice of Data Availability (NODA) on May 9, 2014 (the May 2014 NODA), reviewing various industry test procedures for portable ACs and presenting results from its investigative testing. DOE requested comment and additional information regarding the results and potential methodologies. 79 FR 26639. Comments received in response to the May 2014 NODA have helped DOE identify issues related to the preliminary analyses, as well as informed the analysis for the test procedure rulemaking. On February 12, 2015, DOE issued a notice of proposed rulemaking (NOPR) for a portable AC test procedure which is available at:
DOE typically first develops a framework document that describes the approaches and methods DOE will use in evaluating the need for new or amended standards. For this rulemaking, DOE began the rulemaking process by publishing a notice of proposed determination (NOPD) on July 5, 2013 (hereinafter the “July 2013 NOPD”). 78 FR 40403. After the framework stage, or in this case the NOPD, DOE then presents the initial analytical results in a preliminary TSD such as this one.
Comments received since publication of the July 2013 NOPD have helped DOE identify and resolve issues related to the preliminary analyses. Chapter 2 of the preliminary TSD summarizes and addresses the comments received.
For the products covered in this rulemaking, DOE conducted in-depth technical analyses in the following areas: (1) Engineering; (2) markups to determine product price; (3) energy use; (4) life-cycle cost and payback period; and (5) national impacts analysis (NIA). The preliminary TSD that presents the methodology and results of each of these analyses is available at:
DOE also conducted, and has included in the preliminary TSD, several other analyses that support the major analyses listed above or are preliminary analyses that will be expanded upon for a NOPR if DOE determines to proceed with an energy conservation standards rulemaking for portable ACs. These analyses include: (1) The market and technology assessment; (2) the screening analysis, which contributes to the engineering analysis; and (3) the shipments analysis, which contributes to the Life-Cycle Costs (LCC) and Payback Period (PBP) analysis and NIA. In addition to these analyses, DOE has begun preliminary work on the manufacturer impact analysis and has identified the methods to be used for the consumer subgroup analysis, the emissions analysis, the employment impact analysis, the regulatory impact analysis, and the utility impact analysis. DOE will expand on these analyses in any subsequent NOPR.
The engineering analysis establishes the relationship between the cost and efficiency levels of portable ACs. This relationship serves as the basis for the cost-benefit calculations performed for individual consumers and the nation.
As a first step in the engineering analysis, DOE established one product class, based on a characterization of the relevant portable AC products and markets. For this product class, DOE identified existing technology options that could improve the energy efficiency of portable ACs. DOE then reviewed each technology option to decide whether it (1) is technologically feasible; (2) is practicable to manufacture, install, and service; (3) would adversely affect product utility or product availability; or (4) would have adverse impacts on health and safety. The engineering analysis identifies representative baseline products, which is the starting point for analyzing technologies that provide energy efficiency improvements. “Baseline product” refers to a model or models having features and technologies typically found in minimally efficient products currently available on the market. DOE then identified design options to improve the efficiency of portable ACs and considered these options in the analysis as candidate standard levels (CSLs). DOE estimated the manufacturer production costs for the baseline and each of the four CSLs. The manufacturer production costs were derived from product teardowns, using more efficient components and modeling efficiency savings from alternative product configurations. The main outputs of the engineering analysis are the manufacturer production costs (including material, labor, and overhead) and efficiencies at the baseline and each of 4 CSLs as a function of cooling capacity for the single product class. Chapter 5 of the preliminary TSD discusses the engineering analysis.
DOE derives customer prices based on manufacturer markups, retailer markups, distributor markups, contractor markups (where appropriate), and sales taxes. In deriving these markups, DOE determines the major distribution channels for product sales, the markup associated with each party in each distribution channel, and the existence and magnitude of differences between markups for baseline products (baseline markups) and higher-efficiency products (incremental markups). DOE calculates both overall baseline and overall incremental markups based on the markups at each step in each distribution channel. Chapter 6 of the preliminary TSD addresses the markups analysis.
The energy use analysis provides estimates of the annual energy consumption of portable ACs. The energy use analysis seeks to estimate the range of energy consumption of the products that meet each of the efficiency levels considered in a given rulemaking as they are used in the field. DOE uses these values in the LCC and PBP analyses and in the NIA. Chapter 7 of the preliminary TSD addresses the energy use analysis.
The life-cycle cost (LCC) and payback period (PBP) analyses determine the economic impact of potential standards on individual consumers. The LCC is the total cost of purchasing, installing, and operating a portable AC over the course of its lifetime. The LCC analysis compares the LCC of a portable AC designed to meet possible energy conservation standards with the LCC of a portable AC likely to be installed in the absence of standards. DOE determines LCCs by considering: (1) Total installed cost to the consumer (which consists of manufacturer selling price, distribution chain markups, and sales taxes); (2) the range of annual energy consumption of portable ACs that meet each of the efficiency levels considered as they are used in the field; (3) the operating cost of portable ACs (
For portable ACs, DOE determined the range in annual energy consumption using outputs from the engineering analysis (power consumption at each efficiency level) and from publically available information on portable ACs. Total installed costs at each CSL are based on the engineering and markups analysis. Recognizing that several inputs to the determination of consumer LCC and PBP are either variable or uncertain (
The average annual energy consumption derived in the LCC analysis is used as an input in the NIA. Chapter 8 of the preliminary TSD addresses the LCC and PBP analyses.
The NIA estimates the national energy savings (NES) and the net present value (NPV) of total consumer costs and savings expected to result from potential new standards at each CSL. DOE calculated NES and NPV for each CSL as the difference between a base-case forecast (without new standards) and the standards-case forecast (with standards). Cumulative energy savings are the sum of the annual NES determined for the lifetime of portable ACs shipped during the analysis period. Energy savings include the full-fuel cycle energy savings (
To calculate the NES and NPV, DOE projected future shipments and efficiency distributions (for each CSL) for the single portable AC product class. DOE recognizes the uncertainty in projecting shipments and efficiency distributions, and as a result the NIA includes several different scenarios for each. Other inputs to the NIA include the estimated portable AC lifetime, consumer product costs, and average annual energy savings. Chapter 10 of the preliminary TSD addresses the NIA.
DOE invites input from the public on all the topics described above. The preliminary analytical results are subject to revision following further review and input from the public. A complete and revised TSD will be made available upon issuance of a NOPR. The final rule establishing any new energy conservation standards will contain the final analytical results and will be accompanied by a final rule TSD.
DOE encourages those who wish to participate in the public meeting to obtain the preliminary TSD from DOE's
Furthermore, DOE welcomes all interested parties, regardless of whether they participate in the public meeting, to submit in writing by April 28, 2015 comments, data, and information on matters addressed in the preliminary TSD and on other matters relevant to consideration of energy conservation standards for portable ACs.
The public meeting will be conducted in an informal conference style. A court reporter will be present to record the minutes of the meeting. There shall be no discussion of proprietary information, costs or prices, market shares, or other commercial matters regulated by United States antitrust laws.
After the public meeting and the closing of the comment period, DOE will consider all timely-submitted comments and additional information obtained from interested parties, as well as information obtained through further analyses. Afterwards, the Department will publish either a determination that standards for portable ACs are not appropriate or a NOPR proposing to establish standards. The NOPR will include proposed energy conservation standards for the products covered by the rulemaking, and members of the public will be given an opportunity to submit written and oral comments on the proposed standards.
The time and date of the public meeting are listed in the
DOE requires visitors to with laptop computers and other devices, such as tablets, to be checked upon entry into the building. Any person wishing to bring these devices into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing these devices, or allow an extra 45 minutes to check in. Please report to the visitor's desk to have devices checked before proceeding through security.
Due to the REAL ID Act implemented by the Department of Homeland Security (DHS), there have been recent changes regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required. DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, American Samoa, Arizona, Louisiana, Maine, Massachusetts, Minnesota, New York, Oklahoma, and Washington. Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced Driver's License or Enhanced ID-Card issued by the states of Minnesota, New York or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); a military ID or other Federal government issued Photo-ID card.
In addition, you can attend the public meeting via webinar. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's Web site at:
Any person who has an interest in today's document or who is a representative of a group or class of persons that has an interest in these issues may request an opportunity to make an oral presentation. Such persons may hand-deliver requests to speak, along with a computer diskette or CD in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format to Ms. Brenda Edwards at the address shown in the
DOE will designate a DOE official to preside at the public meeting and may also employ a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA. (42 U.S.C. 6306) A court reporter will record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. After the public meeting, interested parties may submit further comments on the proceedings as well as on any aspect of the rulemaking until the end of the comment period.
The public meeting will be conducted in an informal conference style. DOE will present summaries of comments received before the public meeting, allow time for presentations by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a prepared general statement (within DOE-determined time limits) prior to the discussion of specific topics. DOE will permit other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions from DOE and other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting.
A transcript of the public meeting will be posted on the DOE Web site and will also be included in the docket, which can be viewed as described in the Docket section at the beginning of this notice. In addition, any person may buy a copy of the transcript from the transcribing reporter.
DOE will accept comments, data, and other information regarding this rulemaking before or after the public meeting, but no later than the date provided at the beginning of this notice. Please submit comments, data, and other information as provided in the
Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document including all the information believed to be confidential and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination as to the confidential status of the information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) a date upon which such information might lose its confidential nature due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
The Secretary of Energy has approved publication of this NOPM.
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Bombardier Aerospace Models BD–500–1A10 and BD–500–1A11 Series Airplanes. These airplanes will have a novel or unusual design feature associated with the fly-by-wire electronic flight control system (EFCS) that limits pitch- and roll-attitude functions to prevent the airplane from attaining certain pitch attitudes and roll angles. This system generates the actual surface commands that provide for stability augmentation and flight control for all three-airplane axes (longitudinal, lateral, and directional). The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before April 13, 2015.
Send comments identified by docket number FAA–2015–0426 using any of the following methods:
•
•
•
•
Joe Jacobsen, FAA, Standardization Branch, ANM–113 Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone 425–227–2011; facsimile 425–227–1149.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On December 10, 2009, Bombardier Aerospace applied for a type certificate for their new Models BD–500–1A10 and BD–500–1A11 series airplanes (hereafter collectively referred to as “CSeries”). The CSeries airplanes are swept-wing monoplanes with an aluminum alloy fuselage, sized for 5-abreast seating. Passenger capacity is designated as 110 for the Model BD–500–1A10 and 125 for the Model BD–500–1A11. Maximum takeoff weight is 131,000 pounds for the Model BD–500–1A10 and 144,000 pounds for the Model BD–500–1A11. The CSeries airplanes will have a fly-by-wire EFCS.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Bombardier Aerospace must show that the CSeries airplane meets the applicable provisions of part 25, as amended by Amendments 25–1 through 25–129.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Bombardier CSeries airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92–574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).
The Bombardier CSeries airplane will incorporate the following novel or unusual design feature: Fly-by-wire EFCS that will limit pitch and roll attitude functions to prevent the airplane from attaining certain pitch attitudes and roll angles greater than plus or minus 65 degrees, and positive spiral stability introduced for roll angles greater than 30 degrees at speeds below V
Part 25 does not specifically relate to flight characteristics associated with fixed attitude limits. Bombardier proposes on the CSeries to implement pitch and roll attitude-limiting functions via the EFCS normal mode. This will prevent the airplane from attaining certain pitch attitudes and roll angles greater than plus or minus 65 degrees. In addition, positive spiral stability, introduced for roll angles greater than 30 degrees at speeds below V
These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Bombardier CSeries airplane. Should Bombardier Aerospace apply later for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on Bombardier CSeries airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for the Bombardier CSeries airplanes.
In addition to § 25.143, the following requirements apply to the EFCS pitch and roll limiting functions:
1. The pitch limiting function must not impede normal maneuvering for pitch angles up to the maximum required for normal maneuvering, including a normal all-engines operating takeoff, plus a suitable margin to allow for satisfactory speed control.
2. The pitch and roll limiting functions must not restrict or prevent attaining pitch attitudes necessary for emergency maneuvering or roll angles up to 65 degrees. Spiral stability, which is introduced above 30 degrees roll angle, must not require excessive pilot strength to achieve these roll angles. Other protections, which further limit the roll capability under certain extreme angle-of-attack, attitude, or high-speed conditions, are acceptable, as long as they allow at least 45 degrees of roll capability.
3. A lower limit of roll is acceptable beyond the overspeed warning if it is possible to recover the airplane to the normal flight envelope without undue difficulty or delay.
Occupational Safety and Health Administration (OSHA), Labor.
Announcement of special meeting of the ACCSH.
ACCSH will hold a special meeting March 31–April 1, 2015, in Washington, DC, to consider a proposed rule to revise OSHA's crane operator qualification requirement in the Cranes and Derricks in Construction standard.
ACCSH will meet from 9 a.m. to 5 p.m., Tuesday, March 31, 2015, and from 9 a.m. to 1 p.m., Wednesday, April 1, 2015.
Submit (postmark, send, transmit) comments, requests to address the ACCSH meeting, speaker presentations (written or electronic), and requests for special accommodations for the ACCSH meeting by March 20, 2015.
OSHA will post comments, requests to speak, and speaker presentations, including any personal information provided, without change, at
ACCSH advises the Secretary of Labor and the Assistant Secretary of Labor for Occupational Safety and Health (Assistant Secretary) in the formulation of standards affecting the construction industry, and on policy matters arising in the administration of the safety and health provisions under the Contract Work Hours and Safety Standards Act (Construction Safety Act (CSA)) (40 U.S.C. 3701
• Assistant Secretary's Agency update and remarks;
• Presentation on OSHA's Proposed Rule to revise the Crane Operator Qualification requirement in the Cranes and Derricks in Construction standards (29 CFR part 1926, subpart CC).
• Public Comment Period.
• ACCSH's consideration of, and recommendation on, OSHA's Proposed Rule to revise the Crane Operator Qualification requirement in the Cranes and Derricks in Construction standards (29 CFR part 1926, subpart CC).
• The interest you represent (
• A brief outline of your presentation.
PowerPoint presentations and other electronic materials must be compatible with PowerPoint 2010 and other Microsoft Office 2010 formats.
Alternately, at the ACCSH meeting, you may request to address ACCSH briefly by signing the public-comment request sheet and listing the topic(s) you will address. You also must provide 20 hard copies of any materials, written or electronic, you want to present to ACCSH.
The ACCSH Chair may grant requests to address ACCSH as time and circumstances permit.
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone throughout the Marine Safety Unit Savannah Captain of the Port Zone. This action is necessary to consolidate, clarify, and otherwise modify safety zone regulations to better meet the needs of the Ports of Savannah and Brunswick. This action would establish safety zones in the event natural or manmade disasters affect navigable waterways within the Marine Safety Unit Savannah Captain of the Port Zone.
Comments and related material must be received by the Coast Guard on or before April 1st, 2015. Requests for a public meeting must be received by the Coast Guard by April 1st, 2015.
You may submit comments identified by docket number using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
If you have questions on this rule, call or email Marine Science Technician First Class Zeke Rissman, Marine Safety Unit Savannah Prevention Department, Coast Guard; telephone (912) 652–4353 ext.241, email
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under
The legal basis for the proposed rule is the Coast Guard's authority to establish regulated navigation areas and limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Department of Homeland Security Delegation No. 0170.1.
The purpose of these proposed regulations is to ensure the safety of life on navigable waters of the United States through the addition of regulations in the event of natural and other disasters.
The Coast Guard proposes to establish a temporary safety zone throughout the Marine Safety Unit Savannah Captain of the Port Zone. This action is necessary to consolidate, clarify, and otherwise modify safety and security zone regulations within the Ports of Savannah and Brunswick. This action would establish a safety zone in the event of a disaster affecting navigable waterways within the Marine Safety Unit Savannah Captain of the Port Zone.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The regulations that are being added are not expected to have a significant regulatory action due to the infrequency of use for the safety zones.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The 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. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.
For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This 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 proposed rule does not have tribal implications under Executive Order 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.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed 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
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(1)
(2)
(3) All coordinates are North American Datum 1983.
(b)
(1) The term “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Savannah in the enforcement of the regulated area.
(2)
(3)
(c)
(1)
(2)
(3)
(4) Persons and vessels desiring to enter, transit through, anchor in, or remain in the regulated area may contact the Captain of the Port Savannah via telephone at (912) 247–0073, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain in the regulated area is granted by the Captain of the Port Savannah or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Savannah or a designated representative.
(5) Coast Guard Marine Safety Unit Savannah will attempt to notify the maritime community of periods during which these safety zones will be in effect via Broadcast Notice to Mariners or by on-scene designated representatives.
(6) The Coast Guard will provide notice of the regulated area via Broadcast Notice to Mariners or by on-scene designated representatives.
(7) This regulation does not apply to authorized law enforcement agencies operating within the regulated area.
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) proposes to amend the portion of the VA Schedule for Rating Disabilities (VASRD or rating schedule) that addresses gynecological conditions and disorders of the breast. The purpose of these changes is to incorporate medical advances that have occurred since the last review, update current medical terminology, and provide clear evaluation criteria. The proposed rule reflects advances in medical knowledge, recommendations from the Gynecological Conditions and Disorders of the Breast Work Group (Work Group), which is comprised of subject matter experts from both the Veterans Benefits Administration (VBA) and the Veterans Health Administration (VHA), and comments from experts and the public gathered as part of a public forum. The public forum, focusing on revisions to the gynecological conditions and disorders of the breast section of the VASRD, was held on January 24, 2012.
Comments must be received on or before April 28, 2015.
Written comments may be submitted through
Ioulia Vvedenskaya, Medical Officer, Part 4 VASRD Regulations Staff (211C), Compensation Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461–9700. (This is not a toll-free telephone number.)
As part of VA's ongoing revision of the VA Schedule for Rating Disabilities (VASRD or rating schedule), VA proposes changes to 38 CFR 4.116, which pertains to gynecological conditions and disorders of the breast. The proposed changes will: (1) Update the medical terminology of certain gynecological conditions and disorders of the breast, (2) add medical conditions not currently in the rating schedule, and (3) refine evaluation criteria based on medical advances that have occurred since the last revision and current understanding of functional changes associated with or resulting from disease or injury (pathophysiology).
Section 4.116 currently lists 19 diagnostic codes encompassing conditions involving injury or disease of female reproductive organs and of the breast. VA proposes to revise these codes, through addition, removal, or other revisions, to reflect current medical science and terminology, and functional impairment.
Current diagnostic code 7610 addresses impairments associated with disease or injury of the vulva. The vulva refers to the exterior anatomical portion of the female genitalia and includes the clitoris. “Vulva,” Mayo Clinic,
Current diagnostic code 7615 addresses impairments associated with disease, injury or adhesions of the ovaries. VA proposes to place a note under diagnostic code 7615 to identify two common diseases associated with ovarian dysfunction resulting in abnormal menstrual cycles: Dysmenorrhea and secondary amenorrhea. Dysmenorrhea is pain associated with menstruation and is the most commonly reported menstrual disorder. “Dysmenorrhea,” American College of Obstetricians and Gynecologists (July 2012),
Diagnostic code 7619, “Ovary, removal of,” addresses impairment associated with complete and partial removal of the ovaries. Service-connected complete removal of both ovaries is currently evaluated at 100 percent for the three months following removal and then 30 percent thereafter. With the continued expansion of women's roles in military service, better understanding of the health effects on women during and after service is essential. Women who suffer premature loss of function in both ovaries are at increased risk for cardiovascular disease, stroke, lung cancer, cognitive impairment or dementia, Parkinsonism, osteoporosis, depressive or anxiety symptoms, and sexual dysfunction. The risks appear to be greater for women who are younger at the time of premature loss of ovarian function. Studies have shown that even women who have both ovaries removed “after the onset of natural menopause had an increased risk of deleterious outcomes.” Lynne T. Shuster et al., “Prophylactic bilateral oophorectomy jeopardizes long-term health,” 18(4), American Society for Reproductive Medicine, Menopausal Medicine S1, S1–S5 (2010).
Currently, a male Veteran is entitled to a 30 percent evaluation for service-connected removal of one testicle when the second testicle, for reasons unrelated to service, is absent or ceases to function. 38 CFR 4.115b, Diagnostic Code 7524, Note. However, the current VASRD does not provide a similar evaluation for a female Veteran whose second ovary is absent or ceases to function for reasons unrelated to service. With consideration of the studies discussed above demonstrating the significant health risks from removal or loss of function of both ovaries, VA proposes to add a note to diagnostic code 7619 in order to equalize VA compensation for female Veterans.
Current diagnostic codes 7621 through 7623 address impairment associated with various degrees of female pelvic organ prolapse. Uterine prolapse is evaluated under current diagnostic code 7621, as either (1) complete uterine prolapse through the vagina and introitus at 50 percent, or (2) incomplete uterine prolapse at 30 percent. Uterine displacement is evaluated under current diagnostic code 7622, as either (1) marked uterine displacement and frequent or continuous menstrual disturbances at 30 percent, or (2) uterine displacement with adhesions and irregular menstruation at 10 percent. Finally, surgical complications of pregnancy are evaluated under current diagnostic code 7623, as either (1) with rectocele or cystocele at 50 percent, or (2) with relaxation of perineum at 10 percent.
To update VASRD, VA proposes to consolidate these three diagnostic codes into one diagnostic code. Specifically, VA proposes to amend diagnostic code
Currently, diagnostic codes 7621 and 7622 address uterine prolapse and uterine displacement, respectively; however, uterine displacement is just an outdated reference to uterine prolapse. Therefore, separate diagnostic codes are redundant and unnecessary. As for diagnostic code 7623, it provides for evaluation of pelvic organ displacement such as rectocele, cystocele, and relaxation of perineum when due to surgical complications of pregnancy. However, all of these pelvic organ displacements can occur independently from surgical complications of pregnancy. Therefore, an update to VASRD is needed to account for these situations.
This proposed revision is also necessary to eliminate disparate treatment of pelvic organ displacement found in the current VASRD. In this regard, rectocele or cystocele are rated under current diagnostic code 7623 without regard to the severity of the displacement (and, in turn, the symptoms associated with the displacement), whereas uterine prolapse and displacement (rated under diagnostic codes 7621 and 7622) are evaluated based on the degree of displacement.
Pelvic organs, such as the uterus, bladder or bowel, may protrude into the vagina due to weakness in the tissues that normally support them. In the most severe cases, part or all of the uterus or vagina can protrude beyond the vaginal opening (introitus). Pelvic organ prolapse includes anterior vaginal wall prolapse (cystocele, urethrocele), posterior vaginal wall prolapse (enterocele, rectocele, perineal deficiency) and uterine or vaginal vault prolapse. A woman can present with prolapse of one or more of these sites. Christopher Maher et al., “Surgical management of pelvic organ prolapse in women,” Cochrane Database of Systematic Reviews (2010),
To ensure consistent evaluation of pelvic organ prolapse, VA proposes to base its rating criteria on the pelvic organ prolapse (POP) classification system. POP presents the herniation of the pelvic organs to or beyond the vaginal opening (at the level of the hymen) and is described using the findings during pelvic examination. “Pelvic Organ Prolapse,” American College of Obstetricians and Gynecologists Practice Bulletin, Vol. 110, No. 3 (Sept. 2007). The severity of prolapse is graded using the standard Pelvic Organ Prolapse Quantification (POP–Q) classification system. The POP–Q examination is an objective, site-specific system that is used to quantify, describe, and stage pelvic support. The POP–Q system has proven interobserver and intraobserver reliability. A.F. Hall et al., “Interobserver and intraobserver reliability of the proposed International Continence Society, Society of Gynecologic Surgeons, and American Urogynecologic Society pelvic organ prolapse classification system,” 175 Am J Obstet Gynecol 1467, 1467–70 (1996).
As for the functional impairment associated with each stage of severity, VA proposes to assign a 50 percent evaluation in cases of severe pelvic organ prolapse, where on examination complete or almost complete eversion of the total length of the vagina is present, and the length of the protrusion beyond the hymen is within 2 centimeters of the total vaginal length. VA proposes to assign a 30 percent evaluation in cases of moderate prolapse, where on examination, the most severe portion of the prolapse is more than 1 centimeter below the hymen, but no further than 2 cm less than the total vaginal length. Finally, VA proposes to assign a 10 percent evaluation in cases of mild prolapse, where on examination, the most severe portion of the prolapse is between 1 cm or less above and 1 cm or more below the hymen.
VA also proposes to eliminate references to frequent or continuous menstrual disturbances, adhesions, and irregular menstruation as a measure of the degree of uterine displacement, because the symptoms noted are either outdated or adequately contemplated by the POP–Q system. For example, uterine displacement, also known as uterine prolapse, occurs when pelvic floor muscles and ligaments stretch and weaken and the uterus slips down into or protrudes out of the vagina. Minimal uterine prolapse generally does not require therapy or cause any impairment because the patient usually does not have any symptoms. However, uterine descent of the cervix at or through the vaginal opening (introitus) can become symptomatic. Symptoms of moderate and severe uterine prolapse include a sensation of vaginal fullness or pressure, back pain, vaginal spotting from ulceration of the protruding cervix or vagina, difficulty with sexual intercourse, lower abdominal discomfort, and voiding and difficulties with defecation. Typically, the patient feels a bulge in the lower vagina or the cervix protruding through the vaginal opening. Cystoceles, rectoceles, or enteroceles may cause symptoms commonly associated with pelvic organ prolapse and lead to patient complaints of difficulty with voiding or bowel movements, recurrent urinary infections, and/or “splinting” (manually supporting the perineum) to defecate. Cespedes RD, Cross CA, McGuire EJ., “Pelvic Prolapse: Diagnosing and Treating Uterine and Vaginal Vault Prolapse,” 1(3) MedGenMed (1999). Menstrual abnormalities may occur in women with or without pelvic organ
Finally, and as a consequence of this proposed consolidation, VA also proposes to delete current diagnostic codes 7622 “Uterus, displacement of” and 7623 “Pregnancy, surgical complications of” as the evaluation criteria are now contained in the proposed diagnostic code 7621.
Current diagnostic codes 7627 and 7628 address impairment associated with malignant and benign neoplasms of the gynecological system and the breast. VA proposes to restructure the current rating criteria by separating the evaluations for impairments due to gynecological neoplasms from the evaluations for impairments due to breast neoplasms. This proposed separation keeps disability compensation data related to male breast cancer and non-cancerous tumors separate from disability compensation data related to gynecological neoplasms and also provides ease of use for disability rating specialists. Men possess a small amount of nonfunctioning breast tissue (breast tissue that cannot produce milk) that is concentrated in the area directly behind the nipple on the chest wall. Like breast cancer in women, cancer of the male breast is the uncontrolled growth of the abnormal cells of this breast tissue. Male breast cancer constitutes about 1 percent of all cases of breast cancers. “Male Breast Cancer,” National Cancer Institute—National Institutes of Health (Updated Sept. 19, 2013),
Therefore, VA proposes to retitle diagnostic code 7627 as, “Malignant neoplasms of gynecological system” and diagnostic code 7628 as, “Benign neoplasms of gynecological system.” Additionally, under diagnostic codes 7627 and 7628, VA proposes to clarify the existing note which instructs rating specialists to rate chronic residuals (following surgery or other treatments). Specifically, VA proposes to identify those chronic residuals commonly associated with treatment for neoplasms of the gynecological system, to include impairment of function due to scars, lymphedema, or disfigurement, as well as to direct rating specialists to evaluate any other residual impairment of function, including gynecological, under appropriate diagnostic code(s) within the appropriate body system. The surgical management of gynecologic malignancies and benign diseases has evolved over the last decades. However, these sometimes complex procedures encompass radical pelvic and upper abdominal surgery, including associated urologic and intestinal procedures that may be required to remove the neoplasm. Oliver Zivanovic & Dennis Chi, “Surgical Resection and Reconstruction for Advanced and Recurrent Gynecologic Malignancies,” 3 Expert Rev. of Obstetrics & Gynecology 677, 677–690 (2008). Additionally, VA proposes a minor editorial revision of replacing the word “X-ray” with the word “radiation” as it pertains to therapeutic procedure to reflect a change in medical terminology.
Within this reorganization, VA also proposes to add two new diagnostic codes, 7630 “Malignant neoplasms of the breast” and 7631 “Benign neoplasms of the breast and other injuries of the breast” in order to account for impairment due to benign and malignant breast tumors (neoplasms) as well as other injuries to the breast not included elsewhere in the VASRD. This addition would allow VA to adequately evaluate and track disabilities due to benign breast neoplasms as well as other injuries, such as blast trauma. VA proposes to place two notes under diagnostic codes 7630 and 7631 to identify common chronic residuals associated with injuries of the breast and benign and malignant breast tumors and to instruct rating specialists to rate accordingly. Breast surgery is the most common choice of treatment for benign and malignant tumors of the breast and is an established risk factor for development of scars, lymphedema, or disfigurement. These chronic post-treatment residuals result in functional impairment such as limitation of arm, shoulder, and wrist motion, or loss of grip strength, or loss of sensation, or residuals from harvesting of muscles for reconstructive purposes. Angelique F. Vitug & Lisa A. Newman, “Complications in Breast Surgery,” 87 Surgical Clinics of North America 431, 431–451 (2007).
The proposed notes will therefore instruct rating specialists to rate chronic residuals according to impairment of function due to scars, lymphedema, or disfigurement (
VA proposes to add a new diagnostic code 7632, titled “Female sexual arousal disorder (FSAD),” in order to account for impairment due to this condition in the female Veteran population. FSAD refers to the continual or recurrent inability of a woman to accomplish or maintain an ample lubrication-swelling reaction during sexual intercourse. This lack of physical response may be either lifelong or acquired, and either generalized or situation-specific. FSAD is the second most common sexual health concern for women, affecting 26 percent of adult women. Emma Hitt, “Alprostadil Shows Efficacy in Female Sexual Arousal Disorder” (May 25, 2012), Medscape,
Currently, male Veterans with service connected penile deformity and loss of erectile power receive a 20 percent disability evaluation under diagnostic code 7522 and are eligible for special monthly compensation. In cases where there is no penile deformity present, but there is service connected loss of erectile power, VA's policy is to evaluate male Veterans analogous to diagnostic code 7522, assigning a 0 percent rating; Eligibility for special
In order to ensure gender parity, VA proposes the creation of a new diagnostic code 7632 “Female sexual arousal disorder (FSAD).” There is no diagnostic code in current § 4.116 which allows for analogous rating of female sexual arousal disorder, to include consideration of special monthly compensation. Under proposed diagnostic code 7632, female Veterans with service connected FSAD but without physical damage to female genitalia would be evaluated at 0 percent with a note directing rating personnel to consider eligibility for special monthly compensation (SMC–K).
VA also proposes several technical amendments. We would add a citation reference to 38 U.S.C. 1155 at the end of § 4.116, and we would update Appendix A, B, and C of part 4 to reflect the above noted proposed amendments.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”
The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at
The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601–612. This proposed rule would not affect any small entities. Only certain VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.
This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3521).
The Catalog of Federal Domestic Assistance program numbers and titles for this rule are 64.009, Veterans Medical Care Benefits; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service Connected Death.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Jose D. Riojas, Chief of Staff, Department of Veterans Affairs, approved this document on December 1, 2014, for publication.
Disability benefits, Pensions, Veterans.
For the reasons set out in the preamble, VA proposes to amend 38 CFR part 4 as follows:
38 U.S.C. 1155, unless otherwise noted.
The revisions and additions to read as follows:
The revisions and additions to read as follows:
The revisions and additions to read as follows:
The additions and revisions to read as follows:
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve elements of state implementation plan (SIP) submissions from Indiana regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2010 nitrogen dioxide (NO
Comments must be received on or before March 30, 2015.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2012–0991 (2010 NO
1.
2.
3.
4.
5.
Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–9401,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
This rulemaking addresses submissions from the Indiana Department of Environmental Management (IDEM). The state submitted its infrastructure SIP for the 2010 NO
Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2010 NO
EPA highlighted this statutory requirement in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM
EPA is acting upon the SIP submissions from IDEM that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 NO
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D.
This rulemaking will not cover three substantive areas that are not integral to
EPA's guidance for these infrastructure SIP submissions is embodied in the 2007 Memo. Specifically, attachment A of this memorandum (Required Section 110 SIP Elements) identifies the statutory elements that states need to submit in order to satisfy the requirements for an infrastructure SIP submission. EPA issued additional guidance documents, the most recent being the 2013 Memo which further clarifies aspects of infrastructure SIPs that are not NAAQS specific.
As noted in the 2013 Memo, pursuant to section 110(a), states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. IDEM provided the opportunity for public comment for its 2010 NO
This section requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters. EPA has long interpreted emission limits and control measures for attaining the standards as being due when nonattainment planning requirements are due.
IDEM's authority to adopt emissions standards and compliance schedules is found at Indiana Code (IC) 13–14–8, IC 13–17–3–4, IC 13–17–3–11, and IC 13–17–3–14. To maintain the 2010 NO
As previously noted, EPA is not proposing to approve or disapprove any existing state provisions or rules related to SSM or director's discretion in the context of section 110(a)(2)(A).
This section requires SIPs to include provisions to provide for establishing and operating ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon request. This review of the annual monitoring plan includes EPA's determination that the state: (i) Monitors air quality at appropriate locations throughout the state using EPA-approved Federal Reference Methods or Federal Equivalent Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in a timely manner; and, (iii) provides EPA Regional Offices with prior notification of any planned changes to monitoring sites or the network plan.
IDEM continues to operate an air monitoring network; EPA approved the state's 2014 Annual Air Monitoring Network Plan on October 30, 2013, including the plan for NO
States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet NSR requirements under PSD and NNSR programs. Part C of the CAA (sections 160–169B) addresses PSD, while part D of the CAA (sections 171–193) addresses NNSR requirements.
The evaluation of each state's submission addressing the infrastructure SIP requirements of section 110(a)(2)(C) covers: (i) Enforcement of SIP measures; (ii) PSD provisions that explicitly identify oxides of nitrogen (NO
IDEM maintains an enforcement program to ensure compliance with SIP requirements. IC 13–14–1–12 provides the Commissioner with the authority to enforce rules “consistent with the purpose of the air pollution control laws.” Additionally, IC 13–14–2–7 and IC 13–17–3–3 provide the Commissioner with the authority to assess civil penalties and obtain compliance with any applicable rule a board has adopted in order to enforce air pollution control laws. Lastly, IC 13–14–10–2 allows for an emergency restraining order that prevents any person from causing, or introducing contaminants, that cause or contribute to air pollution. EPA proposes that Indiana has met the enforcement of SIP measures requirements of section 110(a)(2)(C) with respect to the 2010 NO
EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (
The Phase 2 Rule required that states submit SIP revisions incorporating the requirements of the rule, including these specific NO
EPA approved revisions to Indiana's PSD SIP reflecting these requirements on July 2, 2014 (
On May 16, 2008 (
The explicit references to SO
The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as condensables, in PM
EPA approved revisions to Indiana's PSD SIP reflecting these requirements on July 2, 2014 (
On October 20, 2010, EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM
The 2010 NSR Rule also established a new “major source baseline date” for PM
On July 12, 2012, and supplemented on December 12, 2012, IDEM submitted revisions intended to address the increments established by the 2010 NSR Rule for incorporation into the SIP, as well as the revised major source baseline date, trigger date, and baseline area level of significance for PM
On August 11, 2014 (79 FR 46709), EPA finalized approval of the applicable infrastructure SIP PSD revisions; therefore, we are proposing that Indiana has met this set of infrastructure SIP requirements of section 110(a)(2)(C) with respect to the 2010 NO
With respect to Elements C and J, EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of Element D(i)(II) may also be satisfied by demonstrating that the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Indiana has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs).
On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions.
In order to act consistently with its understanding of the Court's decision pending further judicial action to effectuate the decision, the EPA is not continuing to apply EPA regulations that would require that SIPs include permitting requirements that the Supreme Court found impermissible. Specifically, EPA is not applying the requirement that a state's SIP-approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (
EPA anticipates a need to revise Federal PSD rules in light of the Supreme Court opinion. In addition, EPA anticipates that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision. The timing and content of subsequent EPA actions with respect to the EPA regulations and state PSD program approvals are expected to be informed by additional legal process before the United States Court of Appeals for the District of Columbia Circuit. At this juncture, EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to assure that the state's program correctly addresses GHGs consistent with the Supreme Court's decision.
At present, EPA is proposing that Indiana's SIP is sufficient to satisfy Elements C, D(i)(II), and J with respect to GHGs because the PSD permitting program previously approved by EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT. Although the approved Indiana PSD permitting program may currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not render the infrastructure SIP submission inadequate to satisfy Elements C, (D)(i)(II), and J. The SIP contains the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that EPA does not consider necessary at this time in light of the Supreme Court decision.
For the purposes of the 2010 NO
Certain sub-elements in this section overlap with elements of section 110(a)(2)(D)(i), section 110(a)(2)(E) and section 110(a)(2)(J). These links will be discussed in the appropriate areas below.
Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance, of the NAAQS in another state.
On February 17, 2012, EPA promulgated designations for the 2010 NO
Section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality or to protect visibility in another state.
EPA notes that Indiana's satisfaction of the applicable infrastructure SIP PSD requirements for the 2010 NO
EPA has previously approved revisions to Indiana's SIP that meet certain requirements obligated by the Phase 2 Rule and the 2008 NSR Rule. These revisions included provisions that: Explicitly identify NO
States also have an obligation to ensure that sources located in nonattainment areas do not interfere with a neighboring state's PSD program. One way that this requirement can be satisfied is through an NNSR program consistent with the CAA that addresses any pollutants for which there is a designated nonattainment area within the state.
Indiana's EPA-approved NNSR regulations are contained as part of its PSD program regulations, and can be found in 326 IAC 2–3 consistent with 40 CFR 51.165, or appendix S to 40 CFR part 51. Therefore, EPA proposes that Indiana has met all of the applicable PSD requirements for the 2010 NO
With regard to the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II), states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). The 2013 Memo states that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, or an approved SIP addressing regional haze.
In this rulemaking, EPA is not proposing to approve or disapprove Indiana's satisfaction of the visibility protection requirements of section 110(a)(2)(D)(i)(II) for the 2010 NO
Section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 126 and section 115 (relating to interstate and international pollution abatement, respectively).
Section 126(a) requires new or modified sources to notify neighboring states of potential impacts from the source. The statute does not specify the method by which the source should provide the notification. States with SIP-approved PSD programs must have a provision requiring such notification by new or modified sources. A lack of such a requirement in state rules would be grounds for disapproval of this element.
Indiana has provisions in its EPA-approved PSD program in 326 IAC 2–2–15(b)(3) requiring new or modified sources to notify neighboring states of potential negative air quality impacts, and has referenced this program as having adequate provisions to meet the requirements of section 126(a). EPA is proposing that Indiana has met the infrastructure SIP requirements of section 126(a) with respect to the 2010 NO
This section requires each state to provide for adequate personnel, funding, and legal authority under state law to carry out its SIP, and related issues. Section 110(a)(2)(E)(ii) also requires each state to comply with the requirements respecting state boards under section 128.
Indiana's biennial budget and its environmental performance partnership agreement with EPA document funding and personnel levels for IDEM every two years. As discussed in earlier
Section 110(a)(2)(E) also requires each SIP to contain provisions that comply with the state board requirements of section 128 of the CAA. That provision contains two explicit requirements: (i) That any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter, and (ii) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.
On November 29, 2012, IDEM submitted rules regarding its Environmental Rules Board at IC 13–13–8 for incorporation into the SIP, pursuant to section 128 of the CAA. On December 12, 2012, IDEM provided a supplemental submission clarifying that the Environmental Rules Board established by IC 13–13–8, which has the authority to adopt environmental regulations under IC 4–22–2 and IC 13–14–9, does not have the authority to approve enforcement orders or permitting actions as outlined in section 128(a)(1) of the CAA. Therefore, section 128(a)(1) of the CAA is not applicable in Indiana.
Under section 128(a)(2), the head of the executive agency with the power to approve enforcement orders or permits must adequately disclose any potential conflicts of interest. IC 13–13–8–11 “Disclosure of conflicts of interest” contains provisions that adequately satisfy the requirements of section 128(a)(2). This section requires that each member of the board shall fully disclose any potential conflicts of interest relating to permits or enforcement orders under the Federal CAA, as amended by the CAA Amendments of 1990. IC 13–13–8–4 defines the membership of the board, and the commissioner (of IDEM) or his/her designee is explicitly included as a member of the board. Therefore, when evaluated together in the context of section 128(a)(2), the commissioner (of IDEM) or his/her designee must fully disclose any potential conflicts of interest relating to permits or enforcement orders under the CAA. EPA concludes that IDEM's submission as it relates to the state board requirements under section 128 is consistent with applicable CAA requirements. EPA approved these rules on December 6, 2013 (78 FR 77599). Therefore, EPA is proposing that IDEM has satisfied the applicable infrastructure SIP requirements for this section of 110(a)(2)(E) for the 2010 NO
States must establish a system to monitor emissions from stationary sources and submit periodic emissions reports. Each plan shall also require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources. The state plan shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and correlation of such reports by each state agency with any emission limitations or standards established pursuant to this chapter. Lastly, the reports shall be available at reasonable times for public inspection.
The Indiana state rules for monitoring requirements are contained in 326 IAC 3. Additional emissions reporting requirements are found in 326 IAC 2–6. Emission reports are available upon request by EPA or other interested parties. EPA proposes that Indiana has satisfied the infrastructure SIP requirements of section 110(a)(2)(F) with respect to the 2010 NO
This section requires that a plan provide for authority that is analogous to what is provided in section 303 of the CAA, and adequate contingency plans to implement such authority. The 2013 Memo states that infrastructure SIP submissions should specify authority, rested in an appropriate official, to restrain any source from causing or contributing to emissions which present an imminent and substantial endangerment to public health or welfare, or the environment.
326 IAC 11–5 establishes air pollution episode levels based on concentrations of criteria pollutants. This rule requires that emergency reduction plans be submitted to the Commissioner of IDEM by major air pollution sources, and these plans must include actions that will be taken when each episode level is declared, to reduce or eliminate emissions of the appropriate air pollutants. Similarly, under IC 13–17–4, Indiana also has the ability to declare an air pollution emergency and order all persons causing or contributing to the conditions warranting the air pollution emergency to immediately reduce or discontinue emission of air contaminants. EPA proposes that Indiana has met the applicable infrastructure SIP requirements of section 110(a)(2)(G) related to authority to implement measures to restrain sources from causing or contributing to emissions which present an imminent and substantial endangerment to public health or welfare, or the environment with respect to the 2010 NO
This section requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining the NAAQS, or to an EPA finding that the SIP is substantially inadequate.
IDEM continues to update and implement needed revisions to Indiana's SIP as necessary to meet ambient air quality standards. As discussed in previous sections, authority to adopt emissions standards and compliance schedules is found at IC 13–4–8, IC 13–17–3–4, IC 13–17–3–11, and IC 13–17–3–14. EPA proposes that Indiana has met the infrastructure SIP requirements of section 110(a)(2)(H) with respect to the 2010 NO
The CAA requires that each plan or plan revision for an area designated as a nonattainment area meet the applicable requirements of part D of the CAA. Part D relates to nonattainment areas.
EPA has determined that section 110(a)(2)(I) is not applicable to the infrastructure SIP process. Instead, EPA takes action on part D attainment plans through separate processes.
The evaluation of the submissions from Indiana with respect to the requirements of section 110(a)(2)(J) are described below.
States must provide a process for consultation with local governments and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements.
IDEM actively participates in the regional planning efforts that include state rule developers, representatives from the FLMs, and other affected stakeholders. Additionally, Indiana is an active member of the Lake Michigan Air Director's Consortium, which consists of collaboration with the States of Illinois, Wisconsin, Michigan, Minnesota, and Ohio. EPA proposes that Indiana has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 2010 NO
Section 110(a)(2)(J) also requires states to notify the public if NAAQS are exceeded in an area and must enhance public awareness of measures that can be taken to prevent exceedances.
IDEM monitors air quality data daily, and reports the air quality index to the interested public and media if necessary. IDEM also participates and submits information to EPA's AIRNOW program, and maintains SmogWatch, which is an informational tool created by IDEM to share air quality forecasts for each day. SmogWatch provides daily information about ground-level ozone, particulate matter concentration levels, health information, and monitoring data for seven regions in Indiana. IDEM also maintains a publicly available Web site that allows interested members of the community and other stakeholders to view current monitoring data summaries, including those for NO
States must meet applicable requirements of section 110(a)(2)(C) related to PSD. IDEM's PSD program in the context of infrastructure SIPs has already been discussed in the paragraphs addressing section 110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes that the proposed actions for those sections are consistent with the proposed actions for this portion of section 110(a)(2)(J).
Therefore, EPA proposes that Indiana has met all of the infrastructure SIP requirements for PSD associated with section 110(a)(2)(D)(J) for the 2010 NO
With regard to the applicable requirements for visibility protection, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIPs for the 2010 NO
SIPs must provide for performing air quality modeling for predicting effects on air quality of emissions from any NAAQS pollutant and submission of such data to EPA upon request.
IDEM continues to review the potential impact of major and some minor new and modified sources using computer models. Indiana's rules regarding air quality modeling are contained in 326 IAC 2–2–4, 326 IAC 2–2–5, 326 IAC 2–2–6, and 326 IAC 2–2–7. These modeling data are available to EPA or other interested parties upon request. EPA proposes that Indiana has met the infrastructure SIP requirements of section 110(a)(2)(K) with respect to the 2010 NO
This section requires SIPs to mandate each major stationary source to pay permitting fees to cover the cost of reviewing, approving, implementing, and enforcing a permit.
IDEM implements and operates the title V permit program, which EPA approved on December 4, 2001 (66 FR 62969); revisions to the program were approved on August 13, 2002 (67 FR 52615). In addition to the title V permit program, IDEM's EPA-approved PSD program, specifically contained in 326 IAC 2–1.1–07 contains the provisions, requirements, and structures associated with the costs for reviewing, approving, implementing, and enforcing various types of permits. EPA proposes that Indiana has met the infrastructure SIP requirements of section 110(a)(2)(L) with respect to the 2010 NO
States must consult with and allow participation from local political subdivisions affected by the SIP.
Any IDEM rulemaking procedure contained in IC 13–14–9 requires public participation in the SIP development process. In addition, IDEM ensures that the requirements of 40 CFR 51.102 are satisfied during the SIP development process. EPA proposes that Indiana has met the infrastructure SIP requirements of section 110(a)(2)(M) with respect to the 2010 NO
EPA is proposing to approve most elements of submissions from IDEM certifying that its current SIP is sufficient to meet the required infrastructure elements under sections 110(a)(1) and (2) for the 2010 NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Sulfur dioxide, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve some elements of a state implementation plan (SIP) submission from Illinois regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2008 8-hour ground level ozone, 2010 nitrogen dioxide (NO
Comments must be received on or before March 30, 2015.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2011–0969 (2008 ozone infrastructure elements), EPA–R05–OAR–2012–0991 (2010 NO
1.
2.
3.
4.
5.
Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–9401,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
This rulemaking addresses a December 31, 2012, submission and a January 9, 2015, clarification from the Illinois Environmental Protection Agency (Illinois EPA) intended to address all applicable infrastructure requirements for the 2008 ozone, 2010 NO
The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.
This specific rulemaking is only taking action on the CAA 110(a)(2)(A) requirements of these submittals. The majority of the other infrastructure elements were finalized in an October 16, 2014 (79 FR 62042), rulemaking.
On September 13, 2013, EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” (2013 Memo). This guidance provides, among other things, advice on the development of infrastructure SIPs for the 2008 ozone, the 2010 NO
This section requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters. However, EPA has long interpreted emission limits and control measures for attaining the standards as being due when nonattainment planning requirements are due.
The Illinois Environmental Protection Act is contained in chapter 415, section 5, of the Illinois Compiled Statutes (415 ILCS 5). 415 ILCS 5/4 provides Illinois EPA with the authority to develop rules and regulations necessary to meet ambient air quality standards. Additionally, the Illinois Pollution Control Board (IPCB) was created under 415 ILCS 5, providing the IPCB with the authority to develop rules and regulations necessary to promote the purposes of the Illinois Environmental Protection Act. Furthermore, the IPCB ensures compliance with required laws and other elements of the state's attainment plan that are necessary to attain the NAAQS, and to comply with the requirements of the CAA (415 ILCS 5/10).
The 2013 Memo described above states that to satisfy section 110(a)(2)(A) requirements, “an air agency's submission should identify existing EPA-approved SIP provisions or new SIP provisions that the air agency has adopted and submitted for EPA approval that limit emissions of pollutants relevant to the subject NAAQS, including precursors of the relevant NAAQS pollutant where applicable” (2013 Memo at page 18). In its January 9, 2015 clarification letter, Illinois EPA identified regulations with existing controls and emission limits that can be applied to the 2008 ozone, 2010 NO
In this rulemaking, EPA is not proposing to approve any new provisions in 35 IAC Parts 205, 214, 215, 217, 218, 219, 223, and 225 that have not been previously approved by EPA. In addition, as stated in the October 16, 2014 (79 FR 62042), rulemaking approving the majority of the other infrastructure elements in the state's submission, EPA is not proposing to approve or disapprove any existing state provisions or rules related to start-up, shutdown or malfunction or director's discretion in the context of section 110(a)(2)(A).
EPA is proposing to approve submissions from Illinois certifying that its current SIP is sufficient to meet the required infrastructure element under CAA section 110(a)(2)(A) for the 2008 ozone, 2010 NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Nitrogen dioxide, Sulfur dioxide, Reporting and recordkeeping requirements.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve elements of state implementation plan submissions from Ohio regarding the Prevention of Significant Deterioration infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2008 lead (Pb), 2008 ozone, 2010 nitrogen dioxide (NO
Comments must be received on or before March 30, 2015.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2011–0888 (2008 Pb infrastructure elements), EPA–R05–OAR–2011–0969 (2008 ozone infrastructure elements), EPA–R05–OAR–2012–0991 (2010 NO
1.
2.
3.
4.
5.
Please see the direct final rule which is located in the Rules section of this
Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–9401,
In the Final Rules section of this
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to publish negative declarations for sewage sludge incineration (SSI) units for the State of Colorado, the State of Montana, the State of North Dakota, the State of South Dakota, the State of Utah, and the State of Wyoming. Each state notified EPA in its negative declaration letter that there are no SSI units subject to the requirements of sections 111(d) and 129 of the Clean Air Act (CAA) currently operating within the jurisdictional boundaries of the state.
Written comments must be received on or before April 3, 2015.
Submit your comments, identified by Docket ID No. EPA–R08–OAR–2014–0811, by one of the following methods:
•
•
•
•
•
Kendra Morrison, Air Program, 1595
In the “Rules and Regulations” section of this
42 U.S.C. 7401
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Advance notice of proposed rulemaking and request for comments.
In accordance with the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Subtitle A (Department of Health and Human Services) of Title II (Enhancing Controls on Dangerous Biological Agents and Toxins) of Public Law 107–188 (June 12, 2002) (the Bioterrorism Response Act), the Centers for Disease Control and Prevention (CDC) located within the Department of Health and Human Services (HHS) has initiated the review of the HHS list of biological agents and toxins that have the potential to pose a severe threat to public health and safety. We are considering whether to propose amending the HHS list by removing six biological agents.
Comments should be received on or before April 28, 2015.
You may submit comments, identified by Regulation Identifier Number (RIN), 0920–AA59 or Docket Number CDC–2015–0006 in the heading of this document by any of the following methods:
•
•
Robbin Weyant, Director, Division of Select Agents and Toxins, Centers for Disease Control and Prevention, 1600 Clifton Road NE., Mailstop A–46, Atlanta, Georgia 30329. Telephone: (404) 718–2000.
The Preamble to this notice of proposed rulemaking is organized as follows:
Interested persons or organizations are invited to participate in this rulemaking by submitting written views, recommendations, and data. Comments are invited on any topic related to this rulemaking.
In addition, HHS/CDC invites comments specifically as to whether there are biological agents or toxins that should be added or removed from the HHS list of select agents and toxins based on the following criteria, or any other appropriate criteria:
(1) The effect on human health of exposure to the agent or toxin;
(2) The degree of contagiousness of the agent or toxin and the methods by which the agent or toxin is transferred to humans; and
(3) The availability and effectiveness of pharmacotherapies and immunizations to treat and prevent any illness resulting from infection by the agent or exposure to the toxin.
(4) The needs of children and other vulnerable populations.
Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. HHS/CDC will carefully consider all comments submitted in preparation of a proposed final rule.
The Bioterrorism Response Act requires the HHS Secretary to establish by regulation a list of biological agents and toxins that have the potential to pose a severe threat to public health and safety. In determining whether to include an agent or toxin on the list, the HHS Secretary considers criteria such as the effect on human health of exposure to an agent or toxin; the degree of contagiousness of the agent and the methods by which the agent or toxin is transferred to humans; the availability and effectiveness of pharmacotherapies and immunizations to treat and prevent illnesses resulting from an agent or toxin; and the needs of children and other vulnerable populations. The current list of HHS select agents and toxins can be found at 42 CFR 73.3 (HHS select agents and toxins) and 42 CFR 73.4 (Overlap select agents and toxins). The list of HHS and Overlap
The HHS Secretary last republished the list of HHS select agents and toxins in the
The Bioterrorism Response Act requires the HHS Secretary to review and republish the list of select agents and toxins on at least a biennial basis. Using government subject matter experts, HHS/CDC conducts the biennial review process in consultation with the HHS/CDC Intragovernmental Select Agents and Toxins Technical Advisory Committee (ISATTAC). The ISATTAC recommends changes to the list of HHS select agents and toxins. The ISATTAC is comprised of Federal government employees from CDC, Biomedical Advanced Research and Development Authority (BARDA) within the Office of the Assistant Secretary for Preparedness and Response, the National Institutes of Health (NIH), the Food and Drug Administration (FDA), the Department of Homeland Security (DHS), the Department of Defense (DOD), the USDA/Animal and Plant Health Inspection Service (APHIS), USDA/Agricultural Research Service (ARS), and USDA/CVB (Center for Veterinary Biologics). Based on the criteria outlined in the Bioterrorism Response Act, the ISATTAC used the following measures in its review: the degree of pathogenicity (ability of an organism to cause disease), communicability (ability to spread from infected to susceptible hosts), ease of dissemination, route of exposure, environmental stability, ease of production, ability to genetically manipulate or alter, long-term health effects, acute morbidity (illness), acute mortality (death), available treatment, status of host immunity, vulnerability of special populations, and the burden or impact on the health care system.
The purpose of this advanced notice of proposed rulemaking is to seek public comment on the appropriateness of the current list of HHS and Overlap select agents and toxins. Specifically, we are providing an opportunity for interested persons to submit comments, research data, and other information that will better inform us as to whether: (1) There are any other biological agents or toxins that should be added to the list because they have the potential to pose a severe threat to public health and safety; (2) there are any other biological agents or toxins currently on the list that should be removed because they no longer have the potential to pose a severe threat to public health and safety, and/or (3) the biological agents specifically listed in the following paragraphs should be removed or remain on the list.
HHS/CDC is also seeking comments on the following considerations regarding the list of HHS and Overlap select agents:
• It is not easily transmitted from person to person (1);
• It has a low mortality rate with antibiotic treatment (2); and
• There is an investigational new drug (IND) vaccine available for at-risk personnel (3).
• It is readily treatable with antibiotics (4);
• The risk of mass casualties is low because
• Transmissibility from person to person is low due to the fact that
•
•
• Historically, the
•
•
• Human-to-human transmission is extremely rare, and wildlife carriers in the United States often come into contact with humans without significant transmission (10).
Federal Communications Commission.
Proposed rule.
In these documents, the Wireline Competition Bureau seeks comment more generally on letter of credit proposals raised by several petitions for waiver and their potential applicability to the Phase II competitive bidding process.
Comments are due on or before March 30, 2015 and reply comments are due on or before April 13, 2015.
You may submit comments, identified by WC Docket Nos. 10–90 and 14–259, by any of the following methods:
•
•
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Heidi Lankau, Wireline Competition Bureau at (202) 418–7400 or TTY (202) 418–0484.
This is a synopsis of the Wireline Competition Bureau's Public Notices (Notices) in WC Docket No. 10–90, 14–259; DA 15–140, released January 30, 2015 and DA 15–158, released February 4, 2015. The complete text of these documents are available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY–A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY–B402, Washington, DC 20554, telephone (800) 378–3160 or (202) 863–2893, facsimile (202) 863–2898, or via Internet at
1. On January 27, 2015, the Alliance of Rural Broadband Applicants filed a petition for limited waiver of certain letter of credit (LOC) requirements applicable to the rural broadband experiments. On February 3, 2015, NTCA—The Rural Broadband Association filed an emergency petition for limited waiver of the LOC bank eligibility requirements applicable to the rural broadband experiments. On January 21, 2015, the National Rural Utilities Cooperative Finance Corporation and its affiliate, the Rural Telephone Finance Cooperative, also filed a petition for waiver of one aspect of the Commission's LOC bank eligibility requirements.
2. The Bureau notes that these petitions for waiver raise issues that may be relevant to broader pending questions regarding possible LOC requirements for recipients of funding awarded through the Phase II competitive bidding process. Thus, during the comment period established, the Bureau encourages parties to comment on the petitions' LOC proposals more generally and their potential applicability to the Phase II competitive bidding process.
3. In order to develop a complete record on the issues presented in the waiver petition, the request for more general comment will be treated, for
4. The
5. This document seeks comment on a potential new or revised information collection requirement. If the Commission adopts a new or revised information collection requirement, the Commission will publish a separate notice in the
6. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
•
•
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW–A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
7. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. Parties should also send a copy of their filings to Heidi Lankau, Telecommunications Access Policy Division, Wireline Competition Bureau, 445 12th Street SW., Room 5–B511, Washington, DC 20554, or by email to
8. Documents are available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY–A257, Washington, DC 20554. Furthermore, the documents may be viewed in and downloaded from ECFS.
9. For additional information on this proceeding, contact Heidi Lankau (
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Agricultural Research Service, USDA.
Notice.
The Secretary of Agriculture intends to reestablish the Advisory Committee on Biotechnology and 21st Century Agriculture (AC21) for a two-year period.
Questions should be addressed to Michael Schechtman, Designated Federal Official, telephone (202) 720–3817; fax (202) 690–4265; email
Advisory Committee Purpose: USDA supports the responsible development and application of biotechnology within the global food and agricultural system. Biotechnology intersects many of the policies, programs, and functions of USDA. The charge for the AC21 is two-fold: To examine the long-term impacts of biotechnology on the U.S. food and agriculture system and USDA; and to provide guidance to USDA on pressing individual issues, identified by the Office of the Secretary, related to the application of biotechnology in agriculture. The AC21 will meet in Washington, DC, up to four (4) times per year.
Agricultural Marketing Service, USDA.
Notice.
In accordance with the Federal Advisory Committee Act (FACA) (5 U.S.C. App.), this notice announces that the Secretary of Agriculture intends to renew the Plant Variety Protection Board (PVP Board).
Paul Zankowski, USDA, Agricultural Marketing Service (AMS), Plant Variety Protection Office; 1400 Independence Avenue SW., Room 4512; Washington, DC 20250 or by phone at (202) 720–1128 or by Internet:
The Plant Variety Protection Act (PVPA) (7 U.S.C. 2321
The PVPA also provides for a statutory Board (7 U.S.C. 2327) to be appointed by the Secretary of Agriculture. The duties of the Board are to: (1) Advise the Secretary concerning the adoption of rules and regulations to facilitate the proper administration of the Act; (2) provide advisory counsel to the Secretary on appeals concerning decisions on applications by the PVP Office and on requests for emergency public-interest compulsory licenses; and (3) advise the Secretary on any other matters under the Regulations and Rules of Practice and on all questions under section 44 of the Act, “Public Interest in Wide Usage” (7 U.S.C. 2404). Renewing the PVP Board is necessary and in the public interest.
The PVPA provides that “the Board shall consist of individuals who are experts in various areas of varietal development covered by this Act.” The Board membership “shall include farmer representation and shall be drawn approximately equally from the private or seed industry sector and from the sector of government or the public.” The Board consists of 14 members, each of whom is appointed for a 2-year period, with no member appointed for more than three 2-year periods. Nominations are made by farmers' associations, trade associations in the seed industry, professional associations representing expertise in seed technology, plant breeding, and variety development, public and private research and development institutions (13 members) and the USDA (one member).
Equal opportunity practices, in agreement with USDA nondiscrimination policies, will be followed in all membership appointments to the Board. To ensure that the suggestions of the Board have taken into account the needs of the diverse groups served by USDA, membership shall include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities.
The Charter for the PVP Board will be available on the Web site at:
USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. Persons with disabilities who require alternative means for communication of program information (Braille, large print, or audiotape) should contact USDA's Target Center at 202–720–2600 (voice and TTY).
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250–9410 or call 202–720–5964 (voice and TTY). USDA is an equal opportunity provider and employer.
Animal and Plant Health Inspection Service, USDA.
Notice of availability.
We are advising the public that we have determined that it is necessary to immediately add to the Plant Protection and Quarantine Treatment Manual a new treatment schedule for methyl bromide fumigation of figs for external pests, including Chilean false red mite. We have prepared a treatment evaluation document that describes the new treatment schedule and explains why we have determined that it is effective at neutralizing these pests. We are making the treatment evaluation document available to the public for review and comment.
We will consider all comments that we receive on or before May 28, 2015.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Dr. Inder P.S. Gadh, Senior Risk Manager–Treatments, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737; (301) 851–2018.
The regulations in 7 CFR chapter III are intended, among other things, to prevent the introduction or dissemination of plant pests and noxious weeds into or within the United States. Under the regulations, certain plants, fruits, vegetables, and other articles must be treated before they may be moved into the United States or interstate. The phytosanitary treatments regulations contained in 7 CFR part 305 (referred to below as the regulations) set out standards for treatments required in 7 CFR parts 301, 318, and 319 for fruits, vegetables, and other articles.
In § 305.2, paragraph (b) states that approved treatment schedules are set out in the Plant Protection and
• PPQ has determined that an approved treatment schedule is ineffective at neutralizing the targeted plant pest(s).
• PPQ has determined that, in order to neutralize the targeted plant pest(s), the treatment schedule must be administered using a different process than was previously used.
• PPQ has determined that a new treatment schedule is effective, based on efficacy data, and that ongoing trade in a commodity or commodities may be adversely impacted unless the new treatment schedule is approved for use.
• The use of a treatment schedule is no longer authorized by the U.S. Environmental Protection Agency or by any other Federal entity.
A treatment schedule currently listed in the PPQ Treatment Manual (T101–i–2–1) requires baby kiwi (
On April 4, 2011, APHIS published a notice
In accordance with § 305.3(b)(2), we are providing notice that we have determined that it is necessary to add new treatment schedule T101–i–2–22, which provides for a MB treatment schedule for figs during an exposure period of 3 hours in a chamber at a dosage rate of 3.5 lbs gas/1,000 ft
The reasons for the addition of this treatment schedule are described in detail in a treatment evaluation document we have prepared to support this action. The treatment evaluation document may be viewed on the
After reviewing the comments we receive, we will announce our decision regarding the new treatment schedule that is described in the treatment evaluation document in a subsequent notice, in accordance with paragraph (b)(3) of § 305.3. If we do not receive any comments, or the comments we receive do not change our determination that the treatment is effective, we will affirm the treatment schedule's addition to the PPQ Treatment Manual and make available a new version of the PPQ Treatment Manual in which T101–i–2–2 is listed in the main body of the PPQ Treatment Manual. If we receive comments that cause us to determine that T101–i–2–2 needs to be changed or removed, we will make available a new version of the PPQ Treatment Manual that reflects changes to or the removal of T101–i–2–2.
7 U.S.C. 7701–7772 and 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
Forest Service, USDA.
Retraction of NOI.
The Forest Service has published a Notice of Intent (NOI) on May 25, 2011 for Salt River Allotments Vegetative Management EIS. This Environmental Impact Statement was first designed due to complexities encountered with a variety of current activities and environmental conditions that interconnect along Salt River. These activities include: White water rafting, wilderness values, critical habitat of aquatic and terrestrial species. Planned livestock grazing project included a desire by term-grazing permittees to graze livestock (
Not Applicable.
No further comments will be received on this project.
A. Jamie Wages 7680 South Sixshooter Canyon Road Globe, Arizona 85501,
Selecting to do an EIS upfront was a shortcut for doing an EA and then not being able to certify proposed action did not have a significant impact in a FONSI. However, through discussions with term-grazing permittees, it was determined that if livestock were allowed to graze along river that neither Forest Service nor term-grazing permittees had time or money to conduct monitoring necessary to determine appropriateness of this proposed action along river corridor. By withdrawing complexity inherent in proposed action to graze along river, need for an EIS evaporated. Therefore, project planning will continue through an EA process. Environmental Impact Statement will be retracted on February 18, 2015.
Forest Service, USDA.
Notice of intent to prepare an Environmental Impact Statement.
The Stanislaus National Forest proposes about 42,000 acres of reforestation, plantation thinning, additional deer habitat and noxious weed treatments on National Forest System (NFS) lands within the 2013 Rim Fire in order to: Return mixed conifer forest to the landscape; restore old forest for wildlife; reduce fuels; enhance deer habitat; and, eradicate noxious weeds.
Comments on the proposed action should be submitted within 45 days of the date of publication of this Notice of Intent. Completion of the Draft Environmental Impact Statement (EIS) is expected in November 2015 followed by the Final EIS and Draft Record of Decision (ROD) in May 2016. A final decision is expected in August 2016.
Comments may be: mailed to the Stanislaus National Forest; Attn: Rim Reforestation; 19777 Greenley Road; Sonora, CA 95370; delivered to the address shown during business hours (M–F 8:00 am to 4:30 pm); or, submitted by FAX (209) 533–1890. Submit electronic comments, in common (.doc, .pdf, .rtf, .txt) formats, to:
Maria Benech, Stanislaus National Forest; 19777 Greenley Road; Sonora, CA 95370; phone (209) 532–3671; or email:
The Rim Fire started on August 17, 2013 in a remote area of the Stanislaus National Forest near the confluence of the Clavey and Tuolumne Rivers about 20 miles east of Sonora, California. Over the next several weeks it burned 257,314 acres, including 154,430 acres of NFS lands, becoming the third largest wildfire in California history. The Rim Fire Reforestation project is located within the Rim Fire perimeter in the Stanislaus National Forest on portions of the Mi-Wok and Groveland Ranger Districts.
The primary purposes of the project are to: (1) Return Mixed Conifer Forest to the Landscape; (2) Restore Old Forest for Wildlife Habitat and Connectivity; (3) Reduce Fuels for Future Fire Resiliency; (4) Enhance Deer Habitat; and, (5) Eradicate Noxious Weeds.
The Forest Service proposed action includes about 42,000 acres of reforestation, plantation thinning, additional deer habitat and noxious weed eradication treatments on NFS lands within the 2013 Rim Fire.
No treatments are proposed within Wilderness, Inventoried Roadless Areas, or the wild classification segments of Wild and Scenic Rivers or Proposed Wild and Scenic Rivers. Project design will incorporate Best Management Practices (BMPs) according to regional and national guidance. Implementation is expected to begin in fall 2016 and continue for up to 10 years.
In addition to the Proposed Action, the EIS will evaluate the required No Action alternative and likely consider other alternatives identified through the inderdisciplinary process and public participation.
Jeanne M. Higgins, Forest Supervisor; Stanislaus National Forest; 19777 Greenley Road; Sonora, CA 95370.
The responsible official will decide whether to adopt and implement the proposed action, an alternative to the proposed action, or take no action with respect to the Rim Fire Reforestation project.
Public participation is important at numerous points during the analysis. The Forest Service seeks information,
The Forest Service conducts scoping according to the Council on Environmental Quality (CEQ) regulations (40 CFR 1501.7). In addition to other public involvment, this Notice of Intent initiates an early and open process for determining the scope of issues to be addressed in the EIS and for identifying the significant issues related to a proposed action. This scoping process allows the Forest Service to not only identify significant environmental issues deserving of study, but also to deemphasize insignificant issues, narrowing the scope of the EIS process accordingly (40 CFR 1500.4(g)).
This Notice of Intent initiates the scoping proces which guides the development of the EIS. Comments on the proposed action should be submitted within 45 days of the date of publication of this Notice of Intent.
A draft EIS will be available for comment when the Environmental Protection Agency publishes the notice of availability in the
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft EIS should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft EIS or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection.
40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21.
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces our intention to request a 3-year extension and revision of a currently approved information collection for “Export Inspection and Weighing Waiver for High Quality Specialty Grain Transported in Containers.”
We will consider comments that we receive by April 28, 2015.
We invite you to submit comments on this notice by any of the following methods:
•
•
• Fax to (202) 690–2173.
For information regarding the collection of information activities and the use of the information, contact Candace Hildreth at (202) 720–0203.
Congress enacted The United States Grain Standards Act (USGSA) (7 U.S.C. 71–87k) to facilitate the marketing of grain in interstate and foreign commerce. The USGSA, with few exceptions, requires that all grain shipped from the United States must be officially inspected and officially weighed. The USGSA authorizes the Department of Agriculture to waive the mandatory inspection and weighing requirements of the USGSA in circumstances when the objectives of the USGSA would not be impaired.
The Grain Inspection, Packers and Stockyards Administration (GIPSA) amended section 7 CFR 800.18 of the regulations to waive the mandatory inspection and weighing requirements of the USGSA for high quality specialty grain exported in containers. GIPSA established this waiver to facilitate the marketing of high quality specialty grain exported in containers. GIPSA determined that this action was consistent with the objectives of the USGSA and would promote the continuing development of the high quality specialty grain export market.
To ensure that exporters of high quality specialty grain complied with this waiver, GIPSA required exporters to maintain records generated during the normal course of business that pertain to these shipments and make these documents available to GIPSA upon request for review or copying purposes (76 FR 45397). These records shall be maintained for a period of 3 years. This information collection requirement is essential to ensure that exporters who ship high quality specialty grain in containers comply with the waiver provisions. GIPSA does not require exporters of high quality specialty grain to complete and submit new Federal government record(s), form(s), or report(s).
The Emerging Technology and Research Advisory Committee (ETRAC) will meet on March 12, 2015, 8:45 a.m., Room 3884, at the Herbert C. Hoover Building, 14th Street between Pennsylvania and Constitution Avenues NW., Washington, DC The Committee advises the Office of the Assistant Secretary for Export Administration on emerging technology and research activities, including those related to deemed exports.
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
For more information, call Yvette Springer at (202) 482–2813.
Enforcement and Compliance, Department of Commerce.
The Department of Commerce (“the Department”) is rescinding the administrative review of the antidumping duty order on circular welded carbon quality steel pipe from the People's Republic of China (“PRC”) for the period July 1, 2013, through June 30, 2014.
Howard Smith or Jonathan Hill, AD/CVD Operations, Office IV, Enforcement & Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–5193 or (202) 482–3518, respectively.
On August 29, 2014, based on a timely request for review by Wheatland Tube Company (“Wheatland”), the Department published in the
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, in whole or in part, if the party that requested the review withdraws its request within 90
The Department will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries. Because the Department is rescinding this administrative review in its entirety, the entries to which this administrative review pertained shall be assessed antidumping duties at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after the publication of this notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a final reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
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).
NMFS manages the Bering Sea pollock fishery under the American Fisheries Act (AFA) (16 U.S.C. 1851). The AFA “rationalized” the Bering Sea pollock fishery in part by allowing for the formation and management of fishery cooperatives. AFA fishing vessels harvest pollock using pelagic (mid-water) trawl gear, which consists of large nets towed through the water by the vessel. At times, Chinook salmon and pollock occur in the same locations in the Bering Sea. Consequently, Chinook salmon are incidentally caught in the nets as pollock is harvested. This incidental catch is called bycatch and is also called prohibited species catch (PSC). Chinook Salmon are defined as a prohibited species because they are caught by a vessel issued a Federal Fisheries Permit under § 679.4(b) while fishing for groundfish (pollock) in the Bering Sea and Aleutian Islands Management Area (BSAI) or Gulf of Alaska.
In December 2009, the Council recommended that NMFS implement the Chinook Salmon Economic Data Report (Chinook Salmon EDR) to evaluate the effectiveness of Chinook salmon bycatch management measures for the Bering Sea pollock fishery that were implemented under Amendment 91 to the BSAI FMP (75 FR 53026, August 30, 2010).
The Chinook EDR Program provides information to the analysts and the Council for determining the effectiveness of the Incentive Plan Agreement (IPA). The Chinook EDR Program evaluates the effectiveness of the IPA incentives, the PSC limits, and the performance standard in terms of minimizing salmon bycatch in times of high and low levels of salmon abundance, and evaluates how Amendment 91 affects where, when, and how pollock fishing and salmon bycatch occur. The data collection program also provides data for NMFS and the Council to study and verify conclusions drawn by industry in the IPA annual reports.
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
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before April 28, 2015.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Melissa Garcia, National Marine Fisheries Service (NMFS), Office for International Affairs and Seafood Inspection, 1315 East West Hwy, Silver Spring, MD 20910; (301) 427–8385 or
This request is for extension of a current information collection.
Native Americans may conduct certain aboriginal subsistence whaling in accordance with the provisions of the International Whaling Commission (IWC). In order to respond to obligations under the International Convention for the Regulation of Whaling, and the IWC, captains participating in these operations must submit certain information to the relevant Native American whaling organization about strikes on and catch of whales. Anyone retrieving a dead whale is also required to report. Captains must place a distinctive permanent identification mark on any harpoon, lance, or explosive dart used, and must also provide information on the mark and self-identification information. The relevant Native American whaling organization receives the reports, compiles them, and submits the information to NOAA.
The information is used to monitor the hunt and to ensure that quotas are not exceeded. The information is also provided to the International Whaling Commission (IWC), which uses it to monitor compliance with its requirements.
Reports may be made by phone, fax, email, or in writing. Information on equipment marks must be made in writing. No form is used.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration, Department of Commerce; Environmental Protection Agency.
Notice of availability.
The National Oceanic and Atmospheric Administration (NOAA) and the U.S. Environmental Protection Agency (EPA) announce the availability of the federal agencies' finding that Oregon has not submitted a fully approvable Coastal Nonpoint Pollution Control Program that meets the requirements of the Coastal Zone Act Reauthorization Amendments (CZARA). CZARA directs states and territories with coastal management programs previously approved under Section 306 of the Coastal Zone Management Act to develop and implement coastal nonpoint pollution control programs which must be submitted to NOAA and EPA for approval.
Allison Castellan, Stewardship Division, (N/OCM6), Office for Coastal Management, NOS, NOAA, 1305 East-West Highway, Silver Spring, Maryland 20910, phone (301) 713–3155, x125, email
NOAA and EPA (federal agencies) announce the availability of the federal agencies' finding that Oregon has not submitted a fully approvable coastal nonpoint pollution control program (coastal nonpoint program). Section 6217(a) of the Coastal Zone Act Reauthorization Amendments (CZARA), 16 U.S.C. 1455b(a), requires that each state (or territory) with a coastal management program previously approved under section 306 of the Coastal Zone Management Act must prepare and submit to the federal agencies a coastal
Prior to making this finding, the federal agencies invited public input on the federal agencies' proposed decision and the reasoning for such a decision and provided a 90-day public comment period on the proposed decision (see December 20, 2013,
Over time, Oregon has made considerable progress in its coastal nonpoint program in order to satisfy the conditions the federal agencies identified. As explained in the decision document containing the rationale for the federal agencies' decision, however, the federal agencies find that Oregon has not yet submitted a fully approvable program that meets the condition set for developing additional management measures for forestry, and consequently, the federal agencies find that Oregon has not submitted a program that is approvable under CZARA. The decision document describes why Oregon's program has not yet satisfied the remaining conditions that relate to reducing the adverse effects of certain forestry-related activities on Oregon's coastal water quality.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed addition to and deletions from the Procurement List.
The Committee is proposing to add a service to the Procurement List that will be furnished by nonprofit agency employing persons who are blind or have other severe disabilities and to delete products and service previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202–4149.
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed addition, the entity of the Federal Government identified in this notice will be required to procure the service listed below from a nonprofit agency employing persons who are blind or have other severe disabilities.
The following service is proposed for addition to the Procurement List for production by the nonprofit agency listed:
The following products and service are proposed for deletion from the Procurement List:
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau) is requesting to renew the approval for an existing information collection, titled, “CFPB State Official Notification Rule.”
Written comments are encouraged and must be received on or before March 30, 2015 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
•
•
Documentation prepared in support of this information collection request is available at
OMB's approval for this collection of information is scheduled to expire on 04/30/2015. Pursuant to the requirements set forth in the PRA implementing regulations at 5 CFR 1320.12,
Office of the Administrative Assistant to the Secretary of the Army, Army Headquarters Services (OAA–AHS) DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by April 28, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of the Administrative Assistant to the Secretary of the Army, Logistics Services Washington, Travel Services Division, 9301 Chapek Road, Fort Belvoir, VA 22060, ATTN: Ms. Nicole Jungermann, LSW, at (703) 545–0376.
Respondents are DoD civilian and military personnel and eligible accompanying family members traveling on official government orders to a country requiring a no-fee passport and/or visa. Authorization to apply for a no-fee passport is granted to those who can verify U.S. citizenship and legitimate official travel needs. Authorization to request a visa may also be granted to non-U.S. citizen family members, whose names are listed on the sponsor's official travel orders. The information collected on this form is shared with the Department of State (DoS) and the designated foreign embassies.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice correction.
This document corrects the date in a notice published in the
DoD will consider all comments received by April 24, 2015.
Mr. Mark Gomersall, at (571) 372–6099.
Notice is hereby given that the Delaware River Basin Commission will hold a public hearing on Tuesday, March 10, 2015. A business meeting will be held the following day on Wednesday, March 11, 2015. The hearing and business meeting are open to the public and will be held at the Washington Crossing Historic Park Visitor Center, 1112 River Road, Washington Crossing, Pennsylvania.
There will be no opportunity for additional public comment at the March 11 business meeting on hearing items for which the hearing was completed on March 10 or a previous date. Commission consideration on March 11 of items for which the public hearing is closed may result in either approval of the item (docket or resolution) as proposed, approval with changes, denial, or deferral. When the Commissioners defer an action, they may announce an additional period for written comment on the item, with or without an additional hearing date, or they may take additional time to consider the input they have already received without requesting further public input. Any deferred items will be considered for action at a public meeting of the Commission on a future date.
Office of Postsecondary Education, Department of Education.
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2015.
Catalog of Federal Domestic Assistance (CFDA) Number: 84.022A.
Applications Available: February 27, 2015.
Deadline for Transmittal of Applications: April 28, 2015.
This priority is:
A research project that focuses on one or more of the following geographic areas: Africa, East Asia, Southeast Asia and the Pacific Islands, South Asia, the Near East, Central and Eastern Europe and Eurasia, and the Western Hemisphere (excluding the United States and its territories). Please note that applications that propose projects focused on the following countries are not eligible: Andorra, Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, Norway, Portugal, San Marino, Spain, Sweden, Switzerland, United Kingdom, or Vatican City.
Under 34 CFR 75.105(c)(2)(i), for FY 2015, we award an additional three points to an application that meets Competitive Preference Priority 1; two points for an application that meets Competitive Preference Priority 2; and five points for an application that meets Competitive Preference Priority 3 (up to 10 additional points possible).
These priorities are:
A research project that focuses on one or more of the following geographic areas: Sub-Saharan Africa (Angola, Benin, Botswana, Burkina Faso, Burundi, Cabo Verde, Cameroon, Central African Republic, Chad, Comoros, Côte d'Ivoire, Democratic Republic of the Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gabon, The Gambia, Ghana, Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mauritius, Mayotte, Mozambique, Namibia, Niger, Nigeria, Republic of the Congo, Réunion, Rwanda, São Tomé and Príncipe, Senegal, Seychelles, Sierra Leone, Somalia, South Africa, South Sudan, Sudan, Swaziland,
A research project that focuses on any of the 78 priority languages selected from the U.S. Department of Education's list of Less Commonly Taught Languages (LCTLs), as follows:
Akan (Twi-Fante), Albanian, Amharic, Arabic (all dialects), Armenian, Azeri (Azerbaijani), Balochi, Bamanakan (Bamana, Bambara, Mandikan, Mandingo, Maninka, Dyula), Belarusian, Bengali (Bangla), Berber (all languages), Bosnian, Bulgarian, Burmese, Cebuano (Visayan), Chechen, Chinese (Cantonese), Chinese (Gan), Chinese (Mandarin), Chinese (Min), Chinese (Wu), Croatian, Dari, Dinka, Georgian, Gujarati, Hausa, Hebrew (Modern), Hindi, Igbo, Indonesian, Japanese, Javanese, Kannada, Kashmiri, Kazakh, Khmer (Cambodian), Kirghiz, Korean, Kurdish (Kurmanji), Kurdish (Sorani), Lao, Malay (Bahasa Melayu or Malaysian), Malayalam, Marathi, Mongolian, Nepali, Oromo, Panjabi, Pashto, Persian (Farsi), Polish, Portuguese (all varieties), Quechua, Romanian, Russian, Serbian, Sinhala (Sinhalese), Somali, Swahili, Tagalog, Tajik, Tamil, Telugu, Thai, Tibetan, Tigrigna, Turkish, Turkmen, Ukrainian, Urdu, Uyghur/Uigur, Uzbek, Vietnamese, Wolof, Xhosa, Yoruba, and Zulu.
A research project in the field of economics, engineering, international development, global education, mathematics, political science, public health, science, or technology proposed by an applicant who will use advanced language proficiency in one of the 78 LCTLs listed in Competitive Preference Priority 2 of this notice in his or her research. An applicant must meet all three components of this priority in order to be awarded points: Propose a research project in one of the fields listed above, be proficient in the language of research at an advanced level, and propose using as a language of research one of the 78 LCTLs listed in this notice.
This priority is:
Applications from Minority-Serving Institutions as well as other institutions that promote the participation of students from minority backgrounds in research abroad projects in foreign languages and international studies. For purposes of this invitational priority, Minority-Serving Institution means an institution that is eligible to receive assistance under part A of title III, under part B of title III, or under title V of the Higher Education Act of 1965, as amended (HEA).
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
The Department is not bound by any estimates in this notice.
1.
As part of its FY 2015 budget request, the Administration proposed to continue to allow funds to be used to support the applications of individuals who plan both to utilize their language skills in world areas vital to United States national security and to apply their language skills and knowledge of these countries in the fields of government, international development, and the professions. Therefore, students planning to apply their language skills in such fields and those planning teaching careers are eligible to apply to IHEs for funds from this program.
2.
1.
To obtain a copy from ED Pubs, write, fax, or call the following: ED Pubs, U.S. Department of Education, P.O. Box 22207, Alexandria, VA 22304. Telephone, toll free: 1–877–433–7827. FAX: (703) 605–6794. If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call, toll free: 1–877–576–7734.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this program as follows: CFDA number 84.022A.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
Page Limits: The application narrative is where the student applicant addresses the selection criteria that reviewers use to evaluate the application. The student applicant must limit the application narrative to no more than 10 pages and the bibliography to no more than two pages, using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, both sides, and portrait orientation.
• Double space (no more than three lines per vertical inch) all text in the application narrative. However, student applicants may single space all text in charts, tables, figures, graphs, titles, headings, footnotes, endnotes, quotations, bibliography, and captions.
• Use a font that is either 12 point or larger, or no smaller than 10 pitch (characters per inch). Student applicants may use a 10-point font in charts, tables, figures, graphs, footnotes, and endnotes. However, these items are considered part of the narrative and counted within the 10-page limit.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limits only apply to the application narrative and bibliography. The page limits do not apply to the Application for Federal Assistance face sheet (SF 424), the supplemental information form required by the Department of Education, or the assurances and certification. However, student applicants must include their complete responses to the selection criteria in the application narrative.
We will reject a student applicant's application if the application exceeds the page limits.
3.
Applications Available: February 27, 2015.
Deadline for Transmittal of Applications: April 28, 2015.
Applications for grants under this program must be submitted electronically using G5, the Department's grant management system, accessible through the Department's G5 site. For information (including dates and times) about how to submit an IHE's application electronically, or in paper format by mail or hand delivery if an IHE qualifies for an exception to the electronic submission requirement, please refer to Section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one to two business days.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data entered into the SAM database by an entity. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, you will need to allow 24 to 48 hours for the information to be available in Grants.gov and before you can submit an application through Grants.gov.
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
7.
a.
Applications for grants under the Fulbright-Hays DDRA Fellowship Program, CFDA number 84.022A, must be submitted electronically using the G5 system, accessible through the Department's G5 site at:
We will reject an application if an IHE submits it in paper format unless, as described elsewhere in this section, the IHE qualifies for one of the exceptions to the electronic submission requirement
While completing the electronic application, both the IHE and the student applicant will be entering data online that will be saved into a database. Neither the IHE nor the student applicant may email an electronic copy of a grant application to us.
Please note the following:
• The process for submitting applications electronically under the Fulbright-Hays DDRA Fellowship Program has several parts. The following is a brief summary of the process; however, all applicants should review and follow the detailed description of the application process that is contained in the application package. In summary, the major steps are:
(1) IHEs must email the following information to
(2) Students must complete their individual applications and submit them to their IHE's project director using G5;
(3) Persons providing references for individual students must complete and submit reference forms for the students and submit them to the IHE's project director using G5; and
(4) The IHE's project director must officially submit the IHE's application, which must include all eligible individual student applications, reference forms, and other required forms, using G5.
• The IHE must complete the electronic submission of the grant application by 4:30:00 p.m., Washington, DC time, on the application deadline date. G5 will not accept an application for this competition after 4:30:00 p.m., Washington, DC time, on the application deadline date. Therefore, we strongly recommend that both the IHE and the student applicant not wait until the application deadline date to begin the application process.
• The hours of operation of the G5 Web site are 6:00 a.m. Monday until 7:00 p.m., Wednesday; and 6:00 a.m. Thursday until 8:00 p.m., Sunday, Washington, DC time. Please note that, because of maintenance, the system is unavailable between 8:00 p.m. on Sundays and 6:00 a.m. on Mondays, and between 7:00 p.m. on Wednesdays and 6:00 a.m. on Thursdays, Washington, DC time. Any modifications to these hours are posted on the G5 Web site.
• Student applicants will not receive additional point value because the student submits his or her application in electronic format, nor will we penalize the IHE or student applicant if the applicant qualifies for an exception to the electronic submission requirement, as described elsewhere in this section, and submits an application in paper format.
• IHEs must submit all documents electronically, including all information typically provided on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• Both IHEs and student applicants must upload any narrative sections and all other attachments to their application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material.
• Student transcripts must be submitted electronically through the G5 system.
• Both the IHE's and the student applicant's electronic applications must comply with any page limit requirements described in this notice.
• Prior to submitting your electronic application, you may wish to print a copy of it for your records.
• After the individual student applicant electronically submits his or her application to the student's IHE, the student will receive an automatic acknowledgment. After a person submits a reference electronically, he or she will receive an online confirmation. After the applicant IHE submits its application, including all eligible individual student applications, to the Department, the applicant IHE will receive an automatic acknowledgment, which will include a PR/Award number (an identifying number unique to the IHE's application).
• Within three working days after submitting the its electronic application, the IHE must fax a signed copy of the SF 424 to the Application Control Center after following these steps:
(1) Print SF 424 from G5.
(2) The applicant IHE's Authorizing Representative must sign this form.
(3) Place the PR/Award number in the upper right hand corner of the hard-copy signature page of the SF 424.
(4) Fax the signed SF 424 to the Application Control Center at (202) 245–6272.
• We may request that you provide us original signatures on other forms at a later date.
(1) The IHE is a registered user of the G5 system and the IHE has initiated an electronic application for this competition; and
(2) (a) The G5 system is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 3:30 p.m., Washington, DC time, on the application deadline date; or
(b) G5 is unavailable for any period of time between 3:30 p.m. and 4:30:00 p.m., Washington, DC time, on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting the IHE an extension. To request this extension or to confirm our acknowledgment of any system unavailability, an IHE may contact either (1) the person listed elsewhere in this notice under
• The IHE or a student applicant does not have access to the Internet; or
• The IHE or a student applicant does not have the capacity to upload large documents to G5;
• No later than two weeks before the application deadline date (14 calendar days; or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), the IHE mails or faxes a written statement to the Department, explaining which of the two grounds for an exception prevents the IHE from using the Internet to submit its application. If an IHE mails a written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If an IHE faxes its written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax this statement to: Pamela J. Maimer, Ph.D., U.S. Department of Education, 1990 K Street NW., Room 6106, Washington, DC 20006–6078. FAX: (202) 502–7860.
The IHE's paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If an IHE qualifies for an exception to the electronic submission requirement, the IHE may mail (through the U.S. Postal Service or a commercial carrier) its application to the Department. The
The IHE must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If the IHE mails its application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If the IHE's application is postmarked after the application deadline date, we will not consider its application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, the IHE should check with its local post office.
c.
If an IHE qualifies for an exception to the electronic submission requirement, the IHE (or a courier service) may deliver its paper application to the Department by hand. The IHE must deliver the original and two copies of the application, by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.022A), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202–4260.
The Application Control Center accepts hand deliveries daily between 8:00:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If an IHE mails or hand delivers its application to the Department—
(1) The IHE must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which the IHE is submitting its application; and
(2) The Application Control Center will mail a notification of receipt of the IHE's grant application. If the IHE does not receive this grant notification within 15 business days from the application deadline date, the IHE should call the U.S. Department of Education Application Control Center at (202) 245–6288.
1.
2.
(1) The statement of the major hypotheses to be tested or questions to be examined, and the description and justification of the research methods to be used (15 points);
(2) The relationship of the research to the literature on the topic and to major theoretical issues in the field, and the project's originality and importance in terms of the concerns of the discipline (10 points);
(3) The preliminary research already completed in the United States and overseas or plans for such research prior to going overseas, and the kinds, quality, and availability of data for the research in the host country or countries (10 points);
(4) The justification for overseas field research and preparations to establish appropriate and sufficient research contacts and affiliations abroad (10 points);
(5) The applicant's plans to share the results of the research in progress and a copy of the dissertation with scholars and officials of the host country or countries (5 points); and
(6) The guidance and supervision of the dissertation advisor or committee at all stages of the project, including guidance in developing the project, understanding research conditions abroad, and acquainting the applicant with research in the field (10 points).
(1) The overall strength of the applicant's graduate academic record (10 points);
(2) The extent to which the applicant's academic record demonstrates strength in area studies relevant to the proposed project (10 points);
(3) The applicant's proficiency in one or more of the languages (other than English and the applicant's native language) of the country or countries of research, and the specific measures to be taken to overcome any anticipated language barriers (15 points); and
(4) The applicant's ability to conduct research in a foreign cultural context, as evidenced by the applicant's references or previous overseas experience, or both (5 points).
3.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
Under 34 CFR 662.22(b), no applicant may receive concurrently a grant from the Fulbright US Student Program (FUSP) and a grant from the Fulbright-Hays DDRA Fellowship Program. Once a candidate has accepted an award from FUSP and FUSP has expended funds on the student, the student is then ineligible for a grant under the Fulbright-Hays DDRA Fellowship Program. A student applying for a grant under the Fulbright-Hays DDRA Fellowship Program must indicate on the application if the student has currently applied for a FUSP grant. If, at any point, the candidate accepts a FUSP award prior to being notified of the candidate's status with the Fulbright-
4.
1.
If a student application is not evaluated or not selected for funding, we notify the IHE.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. Grantees are required to use the electronic data instrument
4.
The Department will use the following measures to evaluate its success in meeting this objective:
DDRA GPRA Measure 1: The percentage of DDRA fellows who increased their foreign language scores in speaking, reading, and/or writing by at least one proficiency level.
DDRA GPRA Measure 2: The percentage of DDRA fellows who complete their degree in their program of study within four years of receipt of the fellowship.
DDRA GPRA Measure 3: The percentage of DDRA fellows who found employment that utilized their language and area studies skills within eight years of receiving their award.
DDRA GPRA Measure 4: Efficiency Measure—The cost per DDRA fellow who found employment that utilized their language and area studies skills within eight years.
The information provided by grantees in their performance report submitted via IRIS will be the source of data for this measure. Reporting screens for institutions and fellows may be viewed at:
Pamela J. Maimer, Ph.D., International and Foreign Language Education, U.S. Department of Education, 1990 K Street NW., Room 6106, Washington, DC 20006–6078. Telephone: (202) 502–7704 or by email:
If you use a TDD or a TTY, call the FRS, toll free, at 1–800–877–8339.
If you request an application from ED Pubs, be sure to identify this program as follows: CFDA number 84.022A.
You may also access documents of the Department published in the
1. The Commission, pursuant to section 206 of the Federal Power Act (FPA),
2. Given the foregoing, the Commission is concerned that NYISO's Market Administration and Control Area Services Tariff (NYISO Tariff) is unjust and unreasonable. Although NYISO is the entity responsible for providing open access transmission service on the New York transmission system and ensuring the reliability and efficiency of that transmission service,
3. As further discussed below, the provision of RMR services has been an ongoing concern in NYISO's markets. Accordingly, to ensure the proper and efficient operation of NYISO's markets, we find that NYISO should have on file the rates, terms, and conditions for RMR service. Without such provisions, there is no assurance that generation resources will be treated on a not unduly discriminatory basis and have the opportunity to collect compensatory rates without a protracted proceeding. The uncertainty created for resources by the lack of clear tariff provisions has the potential to exacerbate the very concerns an RMR service is meant to address—ensuring the continued reliable and efficient operation of the grid, and of NYISO's markets.
4. As discussed below, NYISO's Tariff is unjust and unreasonable because it does not contain provisions governing the retention of and compensation to generating units needed for reliability. The Commission, pursuant to section 206 of the FPA, will require NYISO to submit to the Commission within 120 days of the date of this order fully supported proposed tariff provisions governing the retention of and compensation to generating units required for reliability, including procedures for designating such resources, the rates, terms and conditions for RMR service, provisions for the allocation of costs of RMR service, and a
5. Multiple filings have been made by generators that had applied to the New York Commission to mothball certain facilities but which were determined to be needed for transmission system reliability. These generators then pursued agreements to provide RMR-type service for a limited term until permanent solutions to transmission system reliability issues are addressed by transmission upgrades. The range of RMR-type services to be provided by these units were substantially similar, but involved a number of different agreements some of which were filed at the Commission and others at the New York Commission.
6. Specifically, on July 12, 2012, pursuant to FPA section 205,
7. On March 29, 2013, National Grid proposed in Docket No. ER13–1182–000 to amend certain components of its Wholesale Transmission Service Charge formula under Attachment H of the NYISO Tariff to incorporate the costs it incurs pursuant to the above-described RSSAs covering the Dunkirk services as approved by the New York Commission. National Grid proposed to add a new item, “Reliability Support Services Expense,” that would have included expenses incurred pursuant to agreements entered into with generators or other similar resources for the purpose of supporting transmission reliability. On August 30, 2013, noting protestors' arguments about the unique rate and reliability implications inherent in National Grid's proposed revisions, the Commission rejected National Grid's filing, without prejudice to National Grid making a new filing under FPA section 205 providing additional support for recovery of RSS costs. The Commission found that the proposed formula rate revisions would essentially establish a placeholder that would allow the future pass-through of RSS costs. In order for the Commission to approve such a pass-through, the Commission explained that National Grid would, at a minimum, need to file any underlying RSSAs for Commission review, and support the proposed rates.
8. Similar to Dunkirk, Cayuga Operating Company, LLC (Cayuga) sought approval from the New York Commission to mothball its generation units, but it was determined that its units are needed for transmission system reliability. On November 16, 2012, pursuant to FPA section 205, Cayuga filed an unexecuted RMR agreement with the Commission under which Cayuga would provide RMR service to New York State Electric & Gas Corporation (NYSEG). This agreement was based on cost-of-service rates less the revenues earned by Cayuga from the sale of energy, capacity and ancillary services in the NYISO markets. In the meantime, similar to Dunkirk, Cayuga was in negotiations with NYSEG for an RSSA and filed a “Term Sheet” with the New York Commission summarizing the proposed RSSA, which differed from its FPA section 205 RMR agreement only as to the rate. Cayuga also requested that the Commission hold Cayuga's RMR filing in abeyance until Cayuga notified it to do otherwise.
9. As noted above,
10. NYISO has filed status reports on matters concerning RMR service and compensation for nearly four years now and there has been no consensus regarding tariff provisions governing compensation for generators needed for reliability.
11. If left unresolved, uncertainty regarding NYISO's RMR procedures and compensation policies could undermine NYISO's access to generation units needed for reliability. That is, in the absence of tariff provisions that would allow NYISO to secure RMR services, NYISO may not be able to ensure both that there is indeed adequate generation, and at the appropriate locations, to ensure reliable and efficient operations, and that such generation is adequately compensated so that it will be available when needed. NYISO's inability to secure adequate RMR services could impede its ability to ensure the reliable and efficient operation of the electric grid and its markets. Therefore, pursuant to FPA section 206, we direct NYISO to submit proposed tariff provisions setting forth its proposals to establish an appropriate RMR process in the NYISO tariff. The filing should consist of fully supported proposed tariff provisions governing the retention of and compensation to generating units required for reliability, including procedures for designating such resources, the rates, terms and conditions for RMR service, provisions for the allocation of costs of RMR service, and a
12. In order to assist NYISO in the development of a compliance proposal, the Commission provides general guidance on the elements that should be addressed by NYISO.
13. As an initial matter, as part of its RMR mechanism, NYISO should include Tariff provisions governing the schedule by which a generation owner must notify NYISO that it intends to deactivate.
14. After considering the necessary reliability studies, NYISO must be the entity that makes the determination whether a specific generator is needed to ensure reliable transmission service and thus whether the facility is designated an RMR unit. As indicated earlier, NYISO is uniquely positioned to assess the need for RMR service. Further, given that it is not only the independent system operator in New York but also is responsible for administering the markets in New York, NYISO is the appropriate entity to assess the potential impacts RMR agreements may have on its markets. To avoid requiring NYISO to study steps necessary to ensure reliable operation of transmission facilities over which NYISO does not have direct operational control, we require that the NYISO Tariff indicate the entity that will conduct the study in such cases. In order to avoid any potential for bias among stakeholders, NYISO may elect to conduct the necessary reliability studies itself, including any studies necessitated by local reliability standards, such as those developed by the New York State Reliability Council (NYSRC). Under that approach, NYISO would need to identify in the NYISO Tariff how it will coordinate the necessary reliability studies with the affected transmission owners. Alternatively, NYISO may elect to allow the relevant transmission owner to conduct the necessary reliability studies. If an entity other than NYISO is to conduct the initial reliability study, NYISO must review and verify any local or regional reliability studies conducted, and notify stakeholders as to whether or not it agrees with the outcome of those studies, independent of any other relevant authority's determination that a particular unit is needed for reliability. NYISO's proposal may also include a process for it to take into consideration the relevant reliability studies and evaluations made by the New York Commission and/or NYSRC.
15. In addition, regardless of the approach chosen by NYISO for conducting the necessary reliability studies, NYISO's proposal must include the requirement that any future generation resource-specific RMR filing made with the Commission fully describe, at a minimum, the methodologies and findings in the underlying reliability studies and clearly state all potential reliability criteria violations. NYISO's including such a requirement is important to ensuring that, when a resource-specific RMR filing is made with the Commission, the Commission will be able to evaluate NYISO's assessment of the need for operation of the resource in judging the reasonableness of the agreement including whether there has been any undue discrimination or
16. Finally, NYISO's proposal must describe the process NYISO will use to evaluate alternatives for addressing the identified reliability need. The evaluation of alternatives to an RMR designation is an important step that deserves the full consideration of NYISO and its stakeholders to ensure that RMR agreements are used only as a limited, last-resort measure. To this end, NYISO, in its proposed tariff language, should explain its process for identifying RMR alternatives in detail, including how the process will ensure a thorough consideration of all types of RMR alternatives in an open and transparent manner.
17. As RMR agreements are for Commission jurisdictional services, we require NYISO's RMR proposal to include provisions dealing with compensation for RMR services. The Commission believes that NYISO's RMR compensation provisions should reflect the nature of NYISO's RMR proposal. That is, should NYISO choose an exclusively voluntary RMR regime, under which a generator wishing to deactivate could reject the reliability needs determination and continue to deactivate absent the establishment of acceptable compensation, the tariff should provide for the parties to agree to an appropriate cost-based rate. Compensation to an RMR generator must at a minimum allow for the recovery of the generator's going-forward costs,
18. NYISO's proposal should also contain procedures requiring the filing of RMR agreements for review and approval by the Commission, including, among other provisions, a
19. NYISO's RMR proposal should address the circumstance of accelerated cost recovery for generators that require upgrades, retrofitting, repowering, or some other form of additional investment required to continue operating during the term of the RMR agreement, to ensure that in such circumstances generators are appropriately compensated.
20. NYISO's RMR compliance filing should include tariff provisions specifying a methodology for allocating the costs of RMR agreements, as appropriate cost allocation is essential to ensuring that the rates charged are just and reasonable and not unduly discriminatory or preferential.
21. NYISO's proposal should also include rules to eliminate, or at least minimize, incentives for a generator needed for reliability to toggle between receiving RMR compensation and market-based compensation for the same units.
(A) Pursuant to the authority contained in and subject to the jurisdiction conferred upon the Federal Energy Regulatory Commission by section 402(a) of the Department of Energy Organization Act and by the Federal Power Act, particularly section 206 thereof, and pursuant to the Commission's Rules of Practice and Procedure and the regulations under the Federal Power Act (18 CFR Chapter I), the Commission hereby institutes a proceeding in Docket No. EL15–37–000 concerning the justness and reasonableness of NYISO's Tariff with regard to RMR issues, as discussed in the body of this order.
(B) Within 120 days of the date of issuance of this order, NYISO shall submit a compliance filing containing a proposed RMR Rate Schedule and
(C) Any interested person desiring to be heard in this proceeding must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.214 (2014)) within 21 days of the date of this order.
(D) The Secretary is hereby directed to promptly publish this order in the
By the Commission.
On April 17, 2014, the Commission issued an order in Docket No. EL14–33–000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation to determine the justness and reasonableness of DATC Path 15, LLC's proposed transmission revenue requirement reduction.
The refund effective date in Docket No. EL14–33–000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
On January 13, 2015, the Federal Energy Regulatory Commission (FERC or Commission) issued a
Due to unforeseen circumstances, the Commission staff is postponing the scoping meeting planned for Wednesday, January 28, 2015 at Bucks County Community College, Kevin and Sima Zlock Performing Arts Center Gateway Auditorium, 275 Swamp Road, Newtown, Pennsylvania 18940. Once a new venue is established and scheduled, the Commission will issue another notice advising of the new location and time.
Take notice that on February 12, 2015, El Paso Natural Gas Company, L.L.C. (EPNG), P.O. Box 1087, Colorado Springs, Colorado, 80944 filed a prior notice request pursuant to sections 157.205 and 157.213 of the Commission's regulations under the Natural Gas Act for authorization to construct and operate certain natural gas storage field facilities within EPNG's existing Washington Ranch Storage Field located in Eddy County, New Mexico. Specifically, EPNG proposes to: (i) Drill and connect two new injection/withdrawal wells, (ii) construct two appurtenant six-inch outside diameter storage pipelines totaling up to 2,400 feet, and (iii) install new well pad measurements. The project is referred to as the Washington Ranch Project. EPNG states that the two new wells and associated laterals are designed to better access existing working capacity, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at
Any questions regarding this Application should be directed to Francisco Tarin, Director, Regulatory Affairs Department, El Paso Natural Gas Company, LLC, P.O. Box 1087, Colorado Springs, Colorado, 80944, or by calling (719) 667–7517.
Any person may, within 60 days after the 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. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file 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 protest. If a protest is filed and not withdrawn within 30 days after the time allowed 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 commenter's 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 commenter's will not be required to serve copies of filed documents on all other parties. However, the non-party commentary, 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 via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
Environmental Protection Agency (EPA).
Notice.
EPA has authorized, the Food and Drug Administration, Office of Foods and Veterinary Medicine (FDA), to access information which has been submitted to EPA under all sections of the Toxic Substances Control Act (TSCA) and Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Some of the information may be claimed or determined to be Confidential Business Information (CBI).
Access to the confidential data will occur no sooner than March 9, 2015.
This action is directed to the public in general. This action may, however, be of interest to all who manufacture, process, or distribute industrial chemicals. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPPT–2003–0004, is available at
In the Spring of 2014, consistent with 40 CFR 2.209, the FDA requested access to information substances that may be present in foods (including animal food and feed), animal drugs, and cosmetics which is collected under the authority of the TSCA and FIFRA. This action gives notice that FDA will be given access to materials collected through the authority of TSCA and FIFRA, including information claimed as CBI. The access to this material is contemplated in a memorandum of understanding between the two agencies. The expectation is that the two agencies will share, on a reciprocal and as-needed basis, information, including non-public information, which may facilitate implementation of the agencies' respective programs. This activity is intended to maximize the utility of data collected under those statutes, and enhance the efficiency of the participants' regulatory processes and facilitate better risk management activities.
EPA is issuing this notice to inform all submitters of information under all sections of TSCA and FIFRA, that EPA may provide FDA access to these CBI materials on a need-to-know basis only. All access to TSCA and FIFRA CBI under this agreement will take place at FDA Headquarters located at 4300 River Road, College Park, MD.
Clearances for access to TSCA and FIFRA CBI under this arrangement may continue until terminated by either party.
FDA personnel will be briefed on appropriate security procedures before they are permitted access to the CBI.
15 U.S.C. 2601
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
The U.S. Department of the Interior's Bureau of Land Management and the U.S. Department of Agriculture's Forest Service are joint lead agencies for above project.
Federal Communications Commission.
Notice.
In this document, the Commission released a public notice announcing the meeting in accordance with the Federal Advisory Committee Act, this notice advises interested persons that the Federal Communications Commission's (FCC) Technological Advisory Council will hold its first meeting of the Technological Advisory Council for 2015.
Wednesday, April 1, 2015, from 1:00 p.m. to 4:00 p.m.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Walter Johnston, Chief, Electromagnetic Compatibility Division, 202–418–0807;
This is a summary of the Commission's Public Notice, DA 15–184 released February 10, 2015, announcing the first meeting of the Technological Advisory Council for 2015. At its prior meeting on December 4, 2014, the Council had discussed possible work initiatives for 2015. These initiatives have been discussed in the interim within the FCC, with the TAC chairman, as well as with individual TAC members. At the April meeting, the FCC Technological Advisory Council will discuss its proposed work program for 2015. The FCC will attempt to accommodate as many people as possible. However, admittance will be limited to seating availability. Meetings are also broadcast live with open captioning over the Internet from the FCC Live Web page at
Federal Communications Commission.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 34.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Office of Acquisition Policy, GSA.
Notice of request for comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement and the reinstatement of GSA Form 1142, Release of Claims, regarding final payment under construction and building services contract. GSA Form 1142 was inadvertently deleted as part of the rewrite of GSAR regulations on Contract Financing. GSA Contracting Officers have used this form to achieve uniformity and consistency in the release of claims process.
Submit comments on or before: April 28, 2015.
Ms. Dana Munson, General Services Acquisition Policy Division, GSA, (202) 357–9652 or email
Submit comments identified by Information Collection 3090–0080, Contract Financing Final Payment; (GSA Form 1142, Release of Claims) by any of the following methods:
•
•
•
The General Services Administration Acquisition Regulation (GSAR) clause 552.232–72 requires construction and building services contractors to submit a release of claims before final payment is made to ensure contractors are paid in accordance with their contract requirements and for work performed. GSA Form 1142, Release of Claims is used to achieve uniformity and consistency in the release of claims process.
Public comments are particularly invited on: Whether this collection of information is necessary and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected.
Office of the Secretary, Department of Health and Human Services.
Notice.
The Secretary of Health and Human Services (HHS) is issuing this notice pursuant to section 564 of the Federal Food, Drug, and Cosmetic (FD&C) Act, 21 U.S.C. 360bbb–3. On February 6, 2015, the Secretary determined that there is a significant potential for a public health emergency that has a significant potential to affect national security or the health and security of United States citizens living abroad and that involves enterovirus D68 (EV–D68). On the basis of this determination, she also declared that circumstances exist justifying the authorization of emergency use of new in vitro diagnostics for detection ofEV–D68 pursuant to section 564 of the FD&C Act, subject to the terms of any authorization issued under that section.
The determination and declaration are effective February 6, 2015.
Karen Mason, Centers for Disease Control and Prevention, 1600 Clifton Road MS–A34, Atlanta, GA 30333, Telephone (404) 639–1297 (this is not a toll free number).
Under Section 564 of the FD&C Act, the Commissioner of the Food and Drug Administration (FDA), acting under delegated authority from the Secretary of HHS, may issue an Emergency Use Authorization (EUA) authorizing (1) the emergency use of an unapproved drug, an unapproved or uncleared device, or an unlicensed biological product; or (2) an unapproved use of an approved drug, approved or cleared device, or licensed biological product. Before an EUA may be issued, the Secretary of HHS must declare that circumstances exist justifying the authorization based on one of four determinations: (1) A determination by the Secretary of Homeland Security that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a chemical, biological, radiological, or nuclear (“CBRN”) agent or agents; (2) the identification of a material threat by the Secretary of Homeland Security pursuant to section 319F–2 of the Public Health Service (PHS) Act
Based on any of these four determinations, the Secretary of HHS may then declare that circumstances exist that justify the EUA, at which point the FDA Commissioner may issue an EUA if the criteria for issuance of an authorization under section 564 of the FD&C Act are met. The Centers for Disease Control and Prevention (CDC), HHS, requested that the FDA, HHS, issue an EUA for new in vitro diagnostics for detection of EV–D68 to allow the Department to take preparedness measures based on information currently available about the EV–D68.
The determination of a significant potential for a public health emergency, and the declaration that circumstances exist justifying emergency use of new in vitro diagnostics for detection ofEV–D68 by the Secretary of HHS, as described below, enable the FDA Commissioner to issue an EUA for in vitro diagnostics for detection ofEV–D68 for emergency use under section 564 of the FD&C Act.
On February 6, 2015, pursuant to section 564 of the FD&C Act, I determined that there is a significant potential for a public health emergency that has a significant potential to affect national security or the health and
Also on February 6, 2015, on the basis of my determination of a significant potential for a public health emergency that has a significant potential to affect national security or the health and security of United States citizens living abroad and that involves EV–D68, I declared that circumstances exist justifying the authorization of emergency use of new in vitro diagnostics for detection of EV–D68 pursuant to section 564 of the FD&C Act, subject to the terms of any authorization issued under that section.
Notice of the EUAs issued by the FDA Commissioner pursuant to this determination and declaration will be provided promptly in the
Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
Pursuant to Section 10(a) of the Federal Advisory Committee Act, U.S.C. Appendix 2, notice is hereby given that the Secretary's Advisory Committee on Human Research Protections (SACHRP) will hold a meeting that will be open to the public. Information about SACHRP and the full meeting agenda will be posted on the SACHRP Web site at:
The meeting will be held on Tuesday, March 24, 2015, from 8:30 a.m. until 5:00 p.m. and Wednesday, March 25, 2015, from 8:30 a.m. until 4:30 p.m.
Fishers Lane Conference Center, Terrace Level, 5635 Fishers Lane, Rockville, Maryland 20852.
Jerry Menikoff, M.D., J.D., Director, Office for Human Research Protections (OHRP), or Julia Gorey, J.D., Executive Director, SACHRP; U.S. Department of Health and Human Services, 1101 Wootton Parkway, Suite 200, Rockville, Maryland 20852; 240–453–8141; fax: 240–453–6909; email address:
Under the authority of 42 U.S.C. 217a, Section 222 of the Public Health Service Act, as amended, SACHRP was established to provide expert advice and recommendations to the Secretary of Health and Human Services, through the Assistant Secretary for Health, on issues and topics pertaining to or associated with the protection of human research subjects.
The meeting will open to the public at 8:30 a.m., on Tuesday, March 24. Following opening remarks from Dr. Jerry Menikoff, Executive Secretary of SACHRP and OHRP Director, and Dr. Jeffrey Botkin, SACHRP Chair, Dr. Botkin and invited speakers will discuss issues surrounding the use of newborn dried bloodspots in research. The Subpart A Subcommittee (SAS) report will follow; SAS will discuss draft recommendations on the research uses of newborn dried bloodspots and the Newborn Screening Saves Lives Reauthorization Act of 2014. SAS was established by SACHRP in October 2006 and is charged with developing recommendations for consideration by SACHRP regarding the application of subpart A of 45 CFR part 46 in the current research environment.
In the afternoon of March 24, the Subcommittee on Harmonization (SOH) will present their report; SOH was established by SACHRP at its July 2009 meeting and charged with identifying and prioritizing areas in which regulations and/or guidelines for human subjects research adopted by various agencies or offices within HHS would benefit from harmonization, consistency, clarity, simplification and/or coordination. SOH will present recommendations on the research use of “big data” and the intersection of the HHS and FDA regulations.
On March 25, the SOH will discuss the return of individual research results with special considerations regarding HIPAA and CLIA; this will be followed by presentation of SOH recommendations on the FDA draft guidance “General Clinical Pharmacology Considerations for Pediatric Studies for Drugs and Biologics.” The meeting will adjourn at 4:30 p.m. March 25, 2015. Time for public comment sessions will be allotted both days.
Public attendance at the meeting is limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify one of the designated SACHRP points of contact at the address/phone number listed above at least one week prior to the meeting. Pre-registration is required for participation in the on-site public comment session; individuals may pre-register the day of the meeting. Individuals who would like to submit written statements should email or fax their comments to SACHRP at
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
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. The term “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 requires federal agencies to publish a 60-day notice in the
1.
2.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by March 30, 2015.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395–5806 or Email:
To obtain copies of a supporting statement and any related forms for the
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
Under the Paperwork Reduction Act of 1995 (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. The term “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 publish a 30-day notice in the
1.
2.
All requests for identifiable data are received and reviewed by the Division of Privacy Operations & Compliance (DPOC) in the Office of E-Health Standards and Services. The DPOC staff and the CMS Privacy Officer review the requests to determine if there is legal authorization for disclosure of the data. If legal authorization exists, the request is reviewed to ensure that the minimal data necessary is requested and approved for the project. Requests for identifiable data for research purposes must be submitted to and approved by the CMS Privacy Board. To assist the CMS Privacy Board with its review of research data requests, OIPDA has developed the Executive Summary (ES) forms. The ES collects all the information that the CMS Privacy Board needs to review and make a determination on whether the request meets the requirements for release of identifiable data for research purposes. We currently have three versions of the ES Form and an ES Supplement for Requestors of the National Death Index (NDI) Causes of Death Variables. Each meets the need for a different type of requestor.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces the renewal of the Advisory Panel (the Panel) on Outreach and Education (APOE) charter. It also requests nominations for individuals to serve on the APOE.
Nominations will be considered if we receive them at the appropriate address, provided in the
Mail nominations to the following address: Abigail Huffman, Designated Federal Official, Office of Communications, CMS, 7500 Security Boulevard, Mail Stop S1–13–05, Baltimore, MD 21244–1850 or email nominations to
Abigail Huffman, Designated Federal Official, Office of Communications, CMS, 7500 Security Boulevard, Mail Stop S1–13–05, Baltimore, MD 21244, 410–786–0897, email
The Advisory Panel (the Panel) on Medicare Education (the predecessor to the APOE) was created in 1999 to advise and make recommendations to the Secretary of the U.S. Department of Health and Human Services (HHS), and
The Medicare Modernization Act of 2003 (MMA) (Pub. L. 108–173) expanded the existing health plan options and benefits available under the M+C program and renamed it the Medicare Advantage (MA) program. We have had substantial responsibilities to provide information to Medicare beneficiaries about the range of health plan options available and better tools to evaluate these options. Successful MA program implementation required us to consider the views and policy input from a variety of private sector constituents and to develop a broad range of public-private partnerships.
In addition, the Secretary, and by delegation, the Administrator of CMS was authorized under Title I of MMA to establish the Medicare prescription drug benefit. The drug benefit allows beneficiaries to obtain qualified prescription drug coverage. In order to effectively administer the MA program and the Medicare prescription drug benefit, we have substantial responsibilities to provide information to Medicare beneficiaries about the range of health plan options and benefits available, and to develop better tools to evaluate these plans and benefits.
The Affordable Care Act (Patient Protection and Affordable Care Act, Pub. L. 111–148 and Health Care and Education Reconciliation Act of 2010, Pub. L. 111–152) expanded the availability of other option for health care coverage and enacted a number of changes to Medicare as well as to Medicaid and the Children's Health Insurance Program (CHIP). Qualified individuals and qualified employers are now able to purchase private health insurance coverage through competitive marketplace called Affordable Insurance Exchange, (also called Health Insurance Marketplace, or “Marketplace”). In order to effectively implement and administer these changes, we must provide information to consumers, providers, and other stakeholders pursuant to education and outreach programs regarding how these programs will change and the expanded range of health coverage options available, including private health insurance coverage through the Marketplace. The APOE allows us to consider a broad range of views and information from interested audiences in connection with this effort and to identify opportunities to enhance the effectiveness of education strategies concerning the Affordable Care Act.
Pursuant to the charter approved on January 21, 2015, the APOE was renewed. The APOE will advise HHS and CMS on developing and implementing education programs that support individuals with or who are eligible for Health Insurance Marketplace, Medicare, Medicaid, and the CHIP about options for selecting health care coverage under these and other programs envisioned under health care reform to ensure improved access to quality care, including prevention services. The scope of this Federal Advisory Committee Act (FACA) group also includes advising on education of providers and stakeholders with respect to the Affordable Care Act and certain provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act enacted as part of the American Recovery and Reinvestment Act of 2009 (ARRA).
The charter will terminate on January 21, 2017, unless renewed by appropriate action. The APOE was chartered under 42 U.S.C. 222 of the Public Health Service Act, as amended. The APOE is governed by provisions of Public Law 92–463, as amended (5 U.S.C. Appendix 2), which sets forth standards for the formation and use of advisory committees.
Pursuant to the renewed charter, the APOE will advise the Secretary and the Administrator concerning optimal strategies for the following:
• Developing and implementing education and outreach programs for individuals enrolled in, or eligible for, Medicare, Medicaid, and the Children's Health Insurance Program (CHIP), or coverage available through the Health Insurance Marketplace.
• Enhancing the federal government's effectiveness in informing Health Insurance Marketplace, Medicare, Medicaid, and CHIP consumers, issuers, providers, and stakeholders pursuant to education and outreach programs of issues regarding these programs, including the appropriate use of public-private partnerships to leverage the resources of the private sector in educating beneficiaries, providers, and stakeholders.
• Expanding outreach to vulnerable and underserved communities, including racial and ethnic minorities, in the context of Health Insurance Marketplace, Medicare, Medicaid, and CHIP education programs.
• Assembling and sharing an information base of “best practices” for helping consumers evaluate health coverage options.
• Building and leveraging existing community infrastructures for information, counseling, and assistance.
• Drawing the program link between outreach and education, promoting consumer understanding of health care coverage choices, and facilitating consumer selection/enrollment; which in turn support the overarching goal of improved access to quality care, including prevention services, envisioned under the Affordable Care Act.
The APOE shall consist of no more than 20 members. The Chair shall either be appointed from among the 20 members, or a federal official will be designated to serve as the Chair. The charter requires that meetings shall be held approximately four times per year. Members will be expected to attend all meetings. The members and the Chair shall be selected from authorities knowledgeable in one or more of the following fields:
This notice also announces that in July 2015, there will be 11 expired terms of membership and in October 2015, there will be an additional 2 expired terms of membership. This notice is an invitation to interested organizations or individuals to submit their nominations for membership for all 13 vacancies on the APOE (no self-nominations will be accepted). The Administrator will appoint new members to the APOE from among those candidates determined to have the expertise required to meet specific agency needs, and in a manner to ensure an appropriate balance of membership. We have an interest in ensuring that the interests of both women and men, members of all racial and ethnic groups, and disabled individuals are adequately represented on the APOE. Therefore, we encourage nominations of qualified candidates
Each nomination must include a letter stating that the nominee has expressed a willingness to serve as a Panel member and must be accompanied by a curricula vitae and a brief biographical summary of the nominee's experience.
While we are looking for experts in a number of fields, our most critical needs are for experts in aging, social media, tribal affairs, matters of labor and retirement, health economics research, behavioral health, health insurers and plans, direct patient care, racial/ethnic health/disparities, disability, quality, pharmacy, social work, rural health, CHIP, and state programs/Medicaid.
We are requesting that all curricula vitae include the following:
In order to permit an evaluation of possible sources of conflict of interest, potential candidates will be asked to provide detailed information concerning such matters as financial holdings, consultancies, and research grants or contracts.
Members are invited to serve for 2-year terms, contingent upon the renewal of the APOE by appropriate action prior to its termination. A member may serve after the expiration of that member's term until a successor takes office. Any member appointed to fill a vacancy for an unexpired term shall be appointed for the remainder of that term.
The Secretary's Charter for the APOE is available on the CMS Web site at:
Sec. 222 of the Public Health Service Act (42 U.S.C. 217a) and sec. 10(a) of Pub. L. 92–463 (5 U.S.C. App. 2, sec. 10(a) and 41 CFR 102–3).
Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).
Notice.
This notice announces four new membership appointments to the Advisory Panel on Hospital Outpatient Payment (the Panel). The four new appointments to the Panel will each serve a four-year period. The new members have terms that began on January 14, 2015 and continue through January 31, 2019. The purpose of the Panel is to advise the Secretary of the Department of Health and Human Services and the Administrator of the Centers for Medicare & Medicaid Services concerning the clinical integrity of the Ambulatory Payment Classification groups and their relative payment weights. The Panel also addresses and makes recommendations regarding supervision of hospital outpatient services. The advice provided by the Panel will be considered as we prepare the annual updates for the hospital outpatient prospective payment system.
March 30, 2015.
Designated Federal Official (DFO): Carol Schwartz, DFO, 7500 Security Boulevard, Mail Stop: C4–04–25, Woodlawn, MD 21244–1850. Phone: (410) 786–3985. Email:
The Secretary of the Department of Health and Human Services (the Secretary) is required by section 1833(t)(9)(A) of the Social Security Act (the Act) (42 U.S.C. 1395l(t)(9)(A)) and is allowed by section 222 of the Public Health Service Act (PHS Act) (42 U.S.C. 217(a)) to consult with an expert outside advisory panel on the clinical integrity of the Ambulatory Payment Classification groups and relative payment weights, which are major elements of the Medicare Hospital Outpatient Prospective Payment System (OPPS), and the appropriate supervision level for hospital outpatient services. The Panel is governed by the provisions of the Federal Advisory Committee Act (FACA) (Pub. L. 92–463), as amended (5 U.S.C. Appendix 2), which sets forth standards for the formation and use of advisory panels. The Panel Charter provides that the Panel shall meet up to three times annually. We consider the technical advice provided by the Panel as we prepare the proposed and final rules to update the OPPS for the following calendar year.
The Panel shall consist of a chair and up to 15 members who are full-time employees of hospitals, hospital systems, or other Medicare providers. The Secretary or a designee selects the Panel membership based upon either self-nominations or nominations submitted by Medicare providers and other interested organizations. New appointments are made in a manner that ensures a balanced membership under the FACA guidelines.
The Panel presently consists of the following members and a Chair.
We published a notice in the
The four new members of the Panel with terms beginning on January 14, 2015 and continuing through January 31, 2019 are as follows:
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces the dates, time, and location of the Healthcare Common Procedure Coding System (HCPCS) public meetings to be held in calendar year 2015 to discuss our preliminary coding and payment determinations for all new public requests for revisions to the HCPCS. These meetings provide a forum for interested parties to make oral presentations or to submit written comments in response to preliminary coding and payment determinations. The discussion will be focused on responses to our specific preliminary recommendations and will include all items on the public meeting agenda. (Please note that two of CMS' 2015 HCPCS public meetings have a late starting time.)
1. Thursday, May 7, 2015, 12 p.m. (noon) to 5 p.m. eastern daylight time (e.d.t.) (Drugs/Biologicals/Radiopharmaceuticals/Radiologic Imaging Agents).
2. Friday, May 8, 2015, 9 a.m. to 5 p.m. eastern daylight time (e.d.t.) (Drugs/Biologicals/Radiopharmaceuticals/Radiologic Imaging Agents).
3. Thursday, May 21, 2015, 10 a.m.. to 5 p.m. eastern daylight time (e.d.t.) (Supplies and Other).
4. Friday, May 22, 2015, 9 a.m. to 5 p.m. eastern daylight time (e.d.t.) (Supplies and Other).
5. Wednesday, May 27, 2015, 9 a.m. to 5 p.m. e.d.t. Durable Medical Equipment (DME) and Accessories; and Orthotics and Prosthetics (O&P).
• April 22, 2015 for the May 7, 2015 and May 8, 2015 public meetings.
• May 7, 2015 for the May 21, 2015 and May 22, 2015 public meetings.
• May 13, 2015 for the May 27, 2015 public meeting.
• April 20, 2015 for the May 7, 2015 and May 8, 2015 public meetings.
• May 5, 2015 for the May 21, 2015 and May 22, 2015 public meetings.
• May 11, 2015 for the May 27, 2015 public meeting.
• April 30, 2015 for the May 7, 2015 and May 8, 2015 public meetings.
• May 14, 2015 for the May 21, 2015 and May 22, 2015 public meeting dates.
• May 20, 2015 for the May 27, 2015 public meeting date.
• April 23, 2015 for the May 7, 2015 and May 8, 2015 public meetings.
• May 7, 2015 for the May 21, 2015 and May 22, 2015 public meetings.
• May 13, 2015 for the May 27, 2015 public meeting.
Jennifer Carver at (410)786–6610 or
On December 21, 2000, the Congress passed the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA) (Pub. L. 106–554). Section 531(b) of BIPA mandated that we establish procedures that permit public consultation for coding and payment determinations for new durable medical equipment (DME)
In the November 23, 2001
The public meeting process provides an opportunity for the public to become aware of coding changes under consideration, as well as an opportunity for CMS to gather public input.
The following information must be provided when registering:
• Name.
• Company name and address.
• Direct-dial telephone and fax numbers.
• Email address.
• Special needs information.
A CMS staff member will confirm your registration by email.
Individuals must also indicate whether they are the “primary speaker” for an agenda item. Primary speakers must be designated by the entity that submitted the HCPCS coding request. When registering, primary speakers must provide a brief written statement regarding the nature of the information they intend to provide, and advise the HCPCS Public Meeting Coordinator regarding needs for audio/visual support. To avoid disruption of the meeting and ensure compatibility with our systems, tapes and disk files are tested and arranged in speaker sequence well in advance of the meeting. We will accept tapes and disk files that are received by the deadline for submissions for each public meeting as specified in the
The materials may be emailed or delivered by regular mail to the HCPCS Public Meeting Coordinator as specified in the
To afford the same opportunity to all attendees, 5-minute speakers are not required to register as primary speakers. However, 5-minute speakers must still register as attendees by the deadline set forth under “Registration Deadlines for all Other Attendees” in the
Please note that two of CMS' 2015 HCPCS public meetings have a late starting time as noted in the
The product category reported in the HCPCS code application by the applicant may not be the same as that assigned by us. Prior to registering to attend a public meeting, all participants are advised to review the public meeting agendas at
Additional details regarding the public meeting process for all new public requests for revisions to the HCPCS, along with information on how to register and guidelines for an effective presentation, will be posted at least 4 weeks before the first meeting date on the official HCPCS Web site at
The HCPCS Web site also contains a document titled “HCPCS Decision Tree & Definitions” which illustrates, in flow diagram format, HCPCS coding standards as described in our Coding Procedures document.
A summary of each public meeting will be posted on the HCPCS Web site by the end of August 2015.
We can only estimate the amount of meeting time that will be needed since it is difficult to anticipate the total number of speakers that will register for each meeting. Meeting participants should arrive early to allow time to clear security and sign-in. Each meeting is expected to begin promptly as scheduled. Meetings may end earlier than the stated ending time.
All primary speakers must register as provided under the section titled “Meeting Registration.” Materials and writings that will be used in support of an oral presentation should be submitted to the HCPCS Public Meeting Coordinator.
The materials may be emailed or delivered by regular mail to the HCPCS Public Meeting Coordinator as specified in the
The individual or entity requesting revisions to the HCPCS coding system for a particular agenda item may designate one “primary speaker” to make a presentation for a maximum of 15 minutes. Fifteen minutes is the total time interval for the presentation, and the presentation must incorporate any demonstration, set-up, and distribution of material. In establishing the public meeting agenda, we may group multiple, related requests under the same agenda item. In that case, we will decide whether additional time will be allotted, and may opt to increase the amount of time allotted to the speaker by increments of less than 15 minutes.
Individuals designated to be the primary speaker must register to attend the meeting using the registration procedures described under the “Meeting Registration” section of this notice and contact one of the HCPCS Public Meeting Coordinators, specified in the
Meeting attendees can sign up at the meeting, on a first-come, first-served basis, to make presentations for up to 5 minutes on individual agenda items. Based on the number of items on the agenda and the progress of the meeting, a determination will be made at the meeting by the meeting coordinator and the meeting moderator regarding how many “5-minute speakers” can be accommodated and/or whether the 5-minute time allocation would be reduced, to accommodate the number of speakers.
On the day of the meeting, before the end of the meeting, all primary speakers and 5-minute speakers must provide a brief written summary of their comments and conclusions to the HCPCS Public Meeting Coordinator.
Every primary speaker and 5-minute speaker must declare at the beginning of their presentation at the meeting, as well as in their written summary, whether they have any financial involvement with the manufacturers or competitors of any items being discussed; this includes any payment, salary, remuneration, or benefit provided to that speaker by the manufacturer or the manufacturer's representatives.
Written comments will be accepted from the general public and meeting registrants anytime up to the date of the public meeting at which a request is discussed. Comments must be sent to the address listed in the
Meeting attendees may also submit their written comments at the meeting. Due to the close timing of the public meetings, subsequent workgroup reconsiderations, and final decisions, we are able to consider only those comments received in writing by the close of the public meeting at which the request is discussed.
The meetings are held within the CMS Complex which is not open to the general public. Visitors to the complex are required to show a valid Government issued photo identification preferably a driver's license, at the time of entry. Participants will also be subject to a vehicle security inspection before access to the complex is granted. Participants not in possession of a valid identification or who are in possession of prohibited items will be denied access to the complex. Prohibited items on federal property include but are not limited to, alcoholic beverages, illegal narcotics, explosives, firearms or other dangerous weapons (including pocket knives), dogs or other animals except service animals. Once cleared for entry to the complex participants will be directed to visitor parking by a security officer.
In order to ensure expedited entry into the building it is recommended that participants have their ID and a copy of their written meeting registration confirmation readily available and that they do not bring large/bulky items into the building. Participants are reminded that photography on the CMS complex is prohibited. CMS has also been declared a tobacco free campus and violators are subject to legal action. In planning arrival time, we recommend allowing additional time to clear security. Individuals who are not registered in advance will not be permitted to enter the building and will be unable to attend the meeting. The invited guests may not enter the building earlier than 45 minutes before the convening of the meeting each day.
Guest access to the complex is limited to the meeting area, the main entrance lobby, and the cafeteria. If a visitor is found outside of those areas without proper escort they may be escorted off of the premises. Also be mindful that there will be an opportunity for everyone to speak and we request that everyone waits for the appropriate time to present their product or opinions. Disruptive behavior will not be tolerated and may result in removal from the meetings and escort from the complex. No visitor is allowed to attach USB cables, thumb drives or any other equipment to any CMS information technology (IT) system or hardware for any purpose at anytime. Additionally, CMS staff is prohibited from taking such actions on behalf of a visitor or utilizing any removable media provided by a visitor.
We cannot assume responsibility for coordinating the receipt, transfer, transport, storage, set-up, safety, or timely arrival of any personal belongings or items used for demonstration or to support a presentation. Special arrangements and approvals are required at least 2 weeks prior to each public meeting in order to bring pieces of equipment or medical devices. These arrangements need to be made with the public meeting coordinator. It is possible that certain requests made in advance of the public meeting could be denied because of unique safety, security or handling issues related to the equipment. A minimum of 2 weeks is required for approvals and security procedures. Any request not submitted at least 2 weeks in advance of the public meeting will be denied.
Foreign National Visitors are defined as Non-U.S. Citizens, and non-lawful permanent residents, non-resident aliens or non-green-card holders.
Attendees that are foreign nationals must identify themselves as such, and provide the following information for security clearance to the public meeting coordinator by the date specified in the
• Building to Visit/Destination.
• Visit start date, start time, end date, end time.
• Visitor full name.
• Gender.
• Visitor Title.
• Visitor Organization/Employer.
• Citizenship.
• Birth Place (City, Country).
• Date of Birth.
• ID Type (Passport or State Department ID).
• Passport issued by Country.
• ID (passport) Number.
• ID (passport) issue date.
• ID (passport)expiration date.
• Visa Type.
• Visa Number.
• Purpose of Visit.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice of meeting.
This notice announces a meeting of the Advisory Panel on Outreach and Education (APOE) (the Panel) in accordance with the Federal Advisory Committee Act. The Panel advises and makes recommendations to the Secretary of the U.S. Department of Health and Human Services (HHS) and the Administrator of the Centers for Medicare & Medicaid Services (CMS) on opportunities to enhance the effectiveness of consumer education strategies concerning the Health Insurance Marketplace, Medicare, Medicaid, and the Children's Health Insurance Program (CHIP). This meeting is open to the public.
Abigail Huffman, (410) 786–0897. Additional information about the APOE is available on the Internet at:
Press inquiries are handled through the CMS Press Office at (202) 690–6145.
In accordance with section 10(a) of the Federal Advisory Committee Act (FACA), this notice announces a meeting of the Advisory Panel on Outreach and Education (APOE) (the Panel). Section 9(a)(2) of the Federal Advisory Committee Act authorizes the Secretary of the U.S. Department of Health and Human Services (HHS) (the Secretary) to establish an advisory panel if the Secretary determines that the panel is “in the public interest in connection with the performance of duties imposed * * * by law.” Such duties are imposed by section 1804 of the Social Security Act (the Act), requiring the Secretary to provide informational materials to Medicare beneficiaries about the Medicare program, and section 1851(d) of the Act, requiring the Secretary to provide for “activities * * * to broadly disseminate information to [M]edicare beneficiaries * * * on the coverage options provided under [Medicare Advantage] in order to promote an active, informed selection among such options.”
The Panel is also authorized by section 1114(f) of the Act (42 U.S.C. 1314(f)) and section 222 of the Public Health Service Act (42 U.S.C. 217a). The Secretary signed the charter establishing the Panel on January 21, 1999 (64 FR 7899, February 17, 1999) and approved the renewal of the charter on December 18, 2012 (78 FR 32661, May 31, 2013).
The Affordable Care Act (Patient Protection and Affordable Care Act, Pub. L. 111 148 and Health Care and Education Reconciliation Act of 2010, Pub. L. 111–152) expanded the availability of other options for health care coverage and enacted a number of changes to Medicare as well as to Medicaid and the Children's Health Insurance Program (CHIP). Qualified individuals and qualified employers are now able to purchase private health insurance coverage through competitive marketplace called Affordable Insurance Exchange, (also called Health Insurance Marketplace, or “Marketplace”). In order to effectively implement and administer these changes, we must provide information to consumers, providers and other stakeholders pursuant to education and outreach programs regarding how these programs will change and the expanded range of health coverage options available, including private health insurance coverage through the Marketplace. The APOE allows us to consider a broad range of views and information from interested audiences in connection with this effort and to identify opportunities to enhance the effectiveness of education strategies concerning the Affordable Care Act.
This FACA group also advises on issues pertaining to education of providers and stakeholders with respect to the Affordable Care Act and certain provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act, enacted as part of the American Recovery and Reinvestment Act of 2009 (ARRA).
Pursuant to the amended charter, the Panel advises and makes recommendations to the Secretary of HHS and the Administrator of the Centers for Medicare & Medicaid Services (CMS) concerning optimal strategies for the following:
• Developing and implementing education and outreach programs for individuals enrolled in, or eligible for Medicare, Medicaid, and the Children's Health Insurance Program (CHIP), or health coverage available through the Health Insurance Marketplace.
• Enhancing the federal government's effectiveness in informing Health Insurance Marketplace, Medicare, Medicaid, and CHIP consumers, issuers, providers, and stakeholders pursuant to education and outreach programs of issues regarding these and other health coverage programs, including the appropriate use of public-private partnerships to leverage the resources of the private sector in educating beneficiaries, providers, and stakeholders.
• Expanding outreach to vulnerable and underserved communities, including racial and ethnic minorities, in the context of Health Insurance
• Assembling and sharing an information base of “best practices” for helping consumers evaluate health coverage options.
• Building and leveraging existing community infrastructures for information, counseling, and assistance.
• Drawing the program link between outreach and education, promoting consumer understanding of health care coverage choices and facilitating consumer selection/enrollment, which in turn support the overarching goal of improved access to quality care, including prevention services, envisioned under the Affordable Care Act.
The current members of the Panel are: Samantha Artiga, Principal Policy Analyst, Kaiser Family Foundation; Joseph Baker, President, Medicare Rights Center; Kellan Baker, Senior Fellow, Center for American Progress; Philip Bergquist, Manager, Health Center Operations, Children's Health Insurance Program Reauthorization Act (CHIPRA) Outreach & Enrollment Project and Director, Michigan Primary Care Association; Marjorie Cadogan, Executive Deputy Commissioner, Department of Social Services; Jonathan Dauphine, Senior Vice President, AARP; Barbara Ferrer, Chief Strategy Officer, W. K. Kellogg Foundation; Shelby Gonzales, Senior Health Outreach Associate, Center on Budget & Policy Priorities; Jan Henning, Benefits Counseling & Special Projects Coordinator, North Central Texas Council of Governments' Area Agency on Aging; Louise Knight, Director, The Sidney Kimmel Comprehensive Cancer Center at Johns Hopkins; Miriam Mobley-Smith, Dean, Chicago State University, College of Pharmacy; Ana Natale-Pereira, M.D., Associate Professor of Medicine, Rutgers-New Jersey Medical School; Roanne Osborne-Gaskin, M.D., Associate Medical Director, Neighborhood Health Plan of Rhode Island; Megan Padden, Vice President, Sentara Health Plans; Jeanne Ryer, Director, New Hampshire Citizens Health Initiative, University of New Hampshire; Carla Smith, Executive Vice President, Healthcare Information and Management Systems Society (HIMSS); Winston Wong, Medical Director, Community Benefit Director, Kaiser Permanente and Darlene Yee-Melichar, Professor & Coordinator, San Francisco State University.
The agenda for the March 19, 2015 meeting will include the following:
Individuals or organizations that wish to make a 5-minute oral presentation on an agenda topic should submit a written copy of the oral presentation to the DFO at the address listed in the
Sec. 222 of the Public Health Service Act (42 U.S.C. 217a) and sec. 10(a) of Pub. L. 92–463 (5 U.S.C. App. 2, sec. 10(a) and 41 CFR 102–3).
The proposed data collection activities described in this notice will collect data about state policies and practices; how TANF, RCA, and associated services are provided; the respective roles of the various agencies and organizations in serving participants; how the agencies and organizations integrate services internally and/or collaborate with other organizations; refugee populations served; approaches to addressing the particular barriers refugees face; promising practices and strategies for assisting refugees; gaps in services; local labor market conditions; and experiences of refugees accessing services through these programs.
The proposed information collection activities include:
(1) The
(2) The four
(3) The
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: OPRE Reports Clearance Officer. Email address:
The Department specifically requests comments on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to
States, the District of Columbia, and the Commonwealth of Puerto Rico are required to report statistics for the previous Federal fiscal year on:
• Assisted and applicant households, by type of LIHEAP assistance;
• Assisted and applicant households, by type of LIHEAP assistance and poverty level;
• Assisted households receiving only utility payment assistance;
• Assisted households, regardless of the type(s) of LIHEAAP assistance;
• Assisted households, by type of LIHEAP assistance, having at least one vulnerable member broken out; by a person at least 60 years or younger, disabled person, or a child five years older of younger;
• Assisted households, by type of LIHEAP assistance, with least one member age 2 years or under;
• Assisted households, by type of LIHEAP assistance, with at least one member ages 3 years through 5 years; and
• Assisted households, regardless of the type(s) of LIHEAP assistance, having at least one member 60 years or older, disabled, or five years old or younger.
Insular areas (other than the Commonwealth of Puerto Rico) and Indian Tribal Grantees are required to submit data only on the number of households receiving heating, cooling, energy crisis, and/or weatherization benefits.
The information is being collected for the Department's annual LIHEAP Report to Congress. The data also provides information about the need for LIHEAP funds. Finally, the data are used in the calculation of LIHEAP performance measures under the Government Performance and Results Act of 1993. The data elements will allow the accuracy of measuring LIHEAP targeting performance and LIHEAP cost efficiency.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by March 30, 2015.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202–395–7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE–14526, Silver Spring, MD 20993–0002,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
FDA is requesting OMB approval under the PRA (44 U.S.C. 3501–3520) for the reporting and recordkeeping requirements contained in the regulations implementing the Prescription Drug Marketing Act of 1987 (PDMA). PDMA was intended to ensure that drug products purchased by consumers are safe and effective and to avoid an unacceptable risk that counterfeit, adulterated, misbranded, subpotent, or expired drugs are sold.
PDMA was enacted by Congress because there were insufficient safeguards in the drug distribution system to prevent the introduction and retail sale of substandard, ineffective, or counterfeit drugs, and that a wholesale drug diversion submarket had developed that prevented effective control over the true sources of drugs.
Congress found that large amounts of drugs had been reimported into the United States as U.S. goods returned causing a health and safety risk to U.S. consumers because the drugs may become subpotent or adulterated during foreign handling and shipping. Congress also found that a ready market for prescription drug reimports had been the catalyst for a continuing series of frauds against U.S. manufacturers and had provided the cover for the importation of foreign counterfeit drugs.
Congress also determined that the system of providing drug samples to physicians through manufacturers' representatives had resulted in the sale to consumers of misbranded, expired, and adulterated pharmaceuticals.
The bulk resale of below-wholesale priced prescription drugs by health care entities for ultimate sale at retail also helped to fuel the diversion market and was an unfair form of competition to wholesalers and retailers who had to pay otherwise prevailing market prices.
FDA is requesting OMB approval for the following existing reporting and recordkeeping requirements:
The reporting and recordkeeping requirements are intended to help achieve the following goals: (1) To ban the reimportation of prescription drugs produced in the United States, except when reimported by the manufacturer or under FDA authorization for emergency medical care; (2) to ban the sale, purchase, or trade, or the offer to sell, purchase, or trade, of any prescription drug sample; (3) to limit the distribution of drug samples to practitioners licensed or authorized to prescribe such drugs or to pharmacies of hospitals or other health care entities at the request of a licensed or authorized practitioner; (4) to require licensed or authorized practitioners to request prescription drug samples in writing; (5) to mandate storage, handling, and recordkeeping requirements for prescription drug samples; (6) to prohibit, with certain exceptions, the sale, purchase, or trade of, or the offer to sell, purchase, or trade, prescription drugs that were purchased by hospitals or other health care entities, or which were donated or supplied at a reduced price to a charitable organization; and (7) to require unauthorized wholesale distributors to provide, prior to the wholesale distribution of a prescription drug to another wholesale distributor or retail pharmacy, a statement identifying each prior sale, purchase, or trade of the drug.
In the
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Kristina Toliver at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice of public workshop.
The Food and Drug Administration (FDA) is announcing a public workshop entitled: The 2015 Office of Regulatory Science and Innovation (ORSI) Science Symposium.
The purpose of the public workshop is to increase scientific collaborations with government institutions, academia, industry and other stakeholders, working to improve science, training, and networking in accordance with the FDA mission of the advancement of regulatory science. This venue will also enhance knowledge and awareness of the FDA ORSI resources and provide guidance of its available services.
If you need special accommodations due to a disability, please contact Diane Rose (see
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 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/contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Office of the Chief Procurement Officer, DHS.
30-Day Notice and request for comments; extension without change of a currently approved collection, 1600–0005.
The Department of Homeland Security, Office of the Chief Procurement Officer, will submit the following Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. Chapter 35). DHS previously published this information collection request (ICR) in the
Comments are encouraged and will be accepted until March 30, 2015. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to OMB Desk Officer, Department of Homeland Security and sent via electronic mail to
The Department of Homeland Security (DHS) and the Office of the Chief Procurement Officer (OCPO) collect information when inviting firms to submit bids, proposals, and offers for public contracts for supplies and services. The information collection is necessary for compliance with the Homeland Security Acquisition Regulation (HSAR), 48 CFR Chapter 30, and the Small Business Innovative Research (SBIR) and Small Business Technology Transfer (STTR) programs 15 U.S.C 628.
For solicitations to contract made through a variety of means, whether conducted orally or in writing, contracting officers normally request information from prospective offerors such as pricing information, delivery schedule compliance, and whether the offeror has the resources (both human and financial) to accomplish requirements. Examples of the kinds of information collected can be found in the HSAR in Part 9, Part 19 and Part 47, along with associated solicitation provisions and contract clauses.
Examples where collections of information occur in soliciting for supplies/services include the issuance of draft Requests for Proposal (RFP), Requests for Information (RFI), and Broad Agency Announcements (BAA). The Government generally issues an RFP using the uniform contract format with the intent of awarding a contract to one or more prospective offerors. The RFP can require those interested in making an offer to provide information in the following areas: Schedule (FAR 15.204–2); contract clauses (FAR 15.204–3); list of documents, exhibits and other attachments (FAR 15.204–4) or representations and instructions (15.204–5). Examples of collections under the HSAR include:
The DHS Science and Technology (S&T) Directorate issues BAAs soliciting white papers and proposals from the public. DHS S&T evaluates white papers and proposals received from the public in response to a DHS S&T BAA using the evaluation criteria specified in the BAA through a peer or scientific review process in accordance with FAR 35.016(d). White paper evaluation determines those research ideas that merit submission of a full proposal and proposal evaluation determines those proposals that merit selection for contract award. Unclassified white papers and proposals are typically collected via the DHS S&T BAA secure Web site, while classified white papers and proposals must be submitted via proper classified courier or proper classified mailing procedures as described in the National Industrial Security Program Operating Manual (NSPOM).
Federal agencies with an annual extramural research and development (R&D) budget exceeding $100 million are required to participate in the SBIR Program. Similarly, Federal agencies with an extramural R&D budget exceeding $1 billion are required to participate in the STTR Program.
Federal agencies who participate in the SBIR and STTR programs must collect information from the public to:
(1) Meet their reporting requirements under 15 U.S.C. 638(b)(7), (g)(8), (i), (j)(1)(E), (j)(3)(C), (l), (o)(10), and (v);
(2) Meet the requirement to maintain both a publicly accessible database of SBIR/STTR award information and a government database of SBIR/STTR award information for SBIR and STTR program evaluation under 15 U.S.C. 638g(10), (k), (o)(9), and (o)(15); and
(3) Meet requirements for public outreach under 15 U.S.C. 638(j)(2)(F), (o)(14), and (s).
The prior information collect request for OMB No. 1600–0005 was approved through February 28, 2015 by OMB in a Notice of OMB Action.
The information being collected is used by the Government's contracting officers and other acquisition personnel, including technical and legal staffs to determine adequacy of technical and management approach, experience, responsibility, responsiveness, expertise of the firms submitting offers, identification of members of the public (
Failure to collect this information would adversely affect the quality of products and services DHS receives from contractors. Potentially, contracts would be awarded to firms without sufficient experience and expertise, thereby placing the Department's operations in jeopardy. Defective and inadequate contractor deliverables would adversely affect DHS's fulfillment of the mission requirements in all areas. Additionally, the Department would be unsuccessful in identifying small businesses with research and development (R&D) capabilities, which would adversely affect the mission requirements in this area.
Many sources of the requested information use automated word processing systems, databases, and web portal to facilitate preparation of material to be submitted and to post and collect information. It is common place within many of DHS's Components for submissions to be electronic as a result of implementation of e-Government initiatives.
Information technology (
There has been no change in the information being collected. The reduction in the total annual burden is based on agency estimates. First, the estimate is based on the number of expected contract awards requiring the submission of information has been declining in the last three years.
The Office of Management and Budget is particularly interested in comments which:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Coast Guard, DHS.
Notice and request for comment.
The U.S. Coast Guard (USCG) announces that the updated draft PREP Guidelines are available for public comment. The USCG is publishing this notice on behalf of the National Scheduling Coordination Committee (NSCC), which is comprised of representatives from the USCG; Environmental Protection Agency (EPA); Pipeline and Hazardous Materials Safety Administration (PHMSA) under the Department of Transportation (DOT); and the Bureau of Safety and Environmental Enforcement (BSEE) under the Department of the Interior (DOI).
Comments must reach USCG by April 28, 2015.
You may submit comments and additional materials, identified by USCG docket number USCG–2011–1178, using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
For questions on viewing or submitting material to the docket: Ms. Cheryl Collins, Program Manager, DOT Docket Operations, 202–366–9826.
We encourage you to participate in the revision of the PREP Guidelines by submitting comments and related materials. All comments received will be posted without change to
To submit your comment online, go to
On February 22, 2012, the USCG, on behalf of the NSCC, invited comments and suggestions for updating the PREP Guidelines (77 FR 10542). The NSCC received public comments in docket number USCG–2011–1178, and those comments can be viewed online as described in the “Public Participation” section earlier in this document. After considering those comments, the NSCC issued a draft update to the PREP Guidelines. The NSCC also issued a notice (79 FR 16363, March 24, 2014) that announced the availability of the draft update to the PREP Guidelines, invited comment on the draft, and provided responses to the comments received in docket USCG–2011–1178. That second notice (79 FR 16363) was published as a BSEE-issued document in docket BSEE–2014–0003. The NSCC has considered the comments received in docket BSEE–2014–0003, and today announces the availability of an updated draft, invites public comment on the updated draft, and responds to comments received in the BSEE docket in response to the March 24, 2014, notice. Although this document responds to comments received in the BSEE docket, all further comments should be directed to the docket USCG–2011–1178.
When BSEE, on behalf of the NSCC, requested public review of the first updated draft PREP Guidelines in its March 2014 notice, BSEE received 83 comments from government agencies, regulated communities, private industry, and non-governmental organizations. All of the comments received are posted on
The NSCC has incorporated numerous changes to the draft PREP Guidelines document as a result of these public comments, and has also updated the document to reflect other new planning requirements such as the recent regulatory requirements relating to
To address the concern about the economic burden of new exercise requirements on vessel owners and operators, several modifications have been made to the PREP Guidelines as follows:
1. To comply with PREP Guidelines, vessels must conduct a Remote Assessment and Consultation Exercise for Vessels annually. PREP exercise requirements for Remote Assessment and Consultation Exercises have been more completely defined to improve the effectiveness of response planning for this service.
2. PREP exercises for SMFF emergency lightering and MFF services do not apply to NTVs with an oil capacity under 250 barrels.
3. Plan holders may claim credit for combined PREP exercises, incidents, and in the case of SMFF, they may claim PREP exercise credit for non-emergency equipment deployments during large-scale operations.
Because of the short timeframe involved and the vessel-specific response required, this exercise must be conducted by each vessel covered under the response plan.
It is a basic PREP tenet that plan holders may claim credit for exercises when conducted in conjunction with other exercises, and a proper record is generated. Credit should be claimed for an actual response when the objectives of the exercise(s) are met, the response is evaluated, and a proper record is generated. Third party salvage and MFF teams may provide documentation of their incidents and exercises to their clients, and their clients may claim credit for the portions of the exercise that are applicable to their VRPs.
All vessel plan holders identifying a contracted SMFF provider in their response plans may claim PREP credit for their SMFF provider's equipment deployment exercises following receipt of exercise documentation from the provider.
The NSCC members request public comments on the updated draft PREP Guidelines, which are available in docket USCG–2011–1178 as described in the
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 402–3970; TTY number for the hearing- and speech-impaired (202) 708–2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800–927–7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, and suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to: Ms. Theresa M. Ritta, Chief Real Property Branch, the Department of Health and Human Services, Room 5B–17, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857, (301)-443–2265 (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1–800–927–7588 for detailed instructions or write a letter to Ann Marie Oliva at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (
Bureau of Land Management, Interior.
Notice of Availability.
The Bureau of Land Management (BLM) announces the availability of the Record of Decision (ROD) for the Approved Resource Management Plan (RMP) for the Tres Rios Field Office located in Archuleta, Dolores, Hinsdale, La Plata, Montezuma, Montrose, San Juan and San Miguel counties in southwest Colorado. The document also serves as the BLM's decision to adopt the U.S. Forest Service oil and gas leasing decisions for Federal mineral estate administered by the San Juan National Forest in Archuleta, Dolores, Hinsdale, La Plata, Mineral, Montezuma, Rio Grande and San Juan counties. The Colorado State Director signed the ROD on February 27, 2015, which constitutes the final decision of the BLM and makes the Approved RMP effective immediately.
Copies of the ROD/Approved RMP are available upon request from the Field Manager, BLM Tres Rios Field Office, 29211 Highway 184, Dolores, CO 81323; or via the internet at
Gina Jones, Southwest District NEPA Coordinator; telephone 970–240–5381; address 2465 South Townsend Avenue, Montrose, CO 81401; email
The RMP provides management for 503,589 acres of BLM land in southwest Colorado. The RMP describes the actions to meet desired resource conditions for upland and riparian vegetation; fish and wildlife habitat; water resources; air quality; cultural, paleontological and visual resources; as well as livestock grazing; mineral and alternative energy; and recreation.
The BLM and the U.S. Forest Service initiated scoping for the RMP in 1999. The agencies sought public input via meetings and interviews, including an intensive year of facilitated public meetings in 2005, in order to develop the Draft Land and Resource Management Plan (LRMP)/Environmental Impact Statement (EIS). The Draft was published for a 90-day public comment period in December 2007. Based on public comments, the agencies identified the need to prepare a Supplement to the Draft EIS to consider the Reasonable Foreseeable Development potential of oil and gas in the Gothic Shale Gas Play, which was published in August 2011. The preferred alternative for the Draft LRMP was carried forward into the Proposed LRMP/Final EIS, which was published in September 2013, initiating the protest period and Governor's Consistency Review. During the protest period for the Proposed LRMP, the BLM received 14 valid protest submissions. The BLM granted one protest in part and dismissed the remaining protests. The BLM granted in part one protest regarding 15 potential Areas of Critical Environmental Concern (ACEC) that BLM determined met both the relevance and importance criteria, but were not analyzed in the range of alternatives in the Draft EIS due to a procedural error. The BLM will evaluate these areas, as well as the two existing ACECs that will continue to be designated as ACECs in the Approved RMP, in a future plan amendment. The decisions in the Approved RMP will protect these areas from impairment of their identified relevant and important values.
As a result of the Governor's Consistency Review, the BLM modified its direction to maintain minimum instream flow levels for the benefit of fisheries from a standard to a guideline. The BLM has also made minor editorial modifications to the Approved RMP to provide further clarification of some of the decisions.
The ROD also serves as the BLM's decision to adopt the U.S. Forest Service oil and gas leasing decision for Federal mineral estate administered by the San Juan National Forest. The U.S. Forest Service outlined its decision in the San Juan National Forest's September 2013 Record of Decision, Oil and Gas Leasing Availability. The BLM concurs with the selection of Alternative B as described in the U.S. Forest Service Record of Decision. In the Approved RMP, the BLM also designates routes for mechanized travel in the Phil's World and Mud Springs portion of the planning area that were analyzed in the 2008 Cortez-Mancos Travel Management Plan Environmental Assessment (CO–800–2006–090–EA). These route designations are implementation decisions and are appealable under 43 CFR part 4. These decisions are contained in Section 2.13 of the Approved RMP. Any party adversely affected by the proposed route designations may appeal within 30 days of publication of this Notice of Availability pursuant to 43 CFR part 4, subpart E. The appeal should state the specific route(s), as identified in Appendix A of the Approved RMP, for which the decision is being appealed. The appeal must be filed with the Tres Rios Field Manager at the above listed address. Please consult the appropriate regulations (43 CFR part 4, subpart E) for further appeal requirements.
40 CFR 1506.6, 40 CFR 1506.10.
Bureau of Reclamation, Interior.
Notice of availability.
The Bureau of Reclamation has made available to the public the Water Management Plans for 10 entities. For the purpose of this announcement, Water Management Plans (Plans) are considered the same as Water Conservation Plans. Reclamation is publishing this notice in order to allow the public an opportunity to review the Plans and comment on the preliminary determinations.
Submit written comments on the preliminary determinations on or before March 30, 2015.
Send written comments to Ms. Angela Anderson, Bureau of Reclamation, 2800 Cottage Way, MP–410, Sacramento, California 95825; or email at
To be placed on a mailing list for any subsequent information, please contact Ms. Anderson at the email address above or 916–978–5215 (TDD 978–5608).
To meet the requirements of the Central Valley Project Improvement Act of 1992 and the Reclamation Reform Act of 1982, the Bureau of Reclamation developed and published the Criteria for Evaluating Water Management Plans (Criteria). Each of the 10 entities listed below has developed a Plan that has been evaluated and preliminarily determined to meet the requirements of these Criteria. The following Water Management Plans are available for review:
We are inviting the public to comment on our preliminary (
1. Description of the District;
2. Inventory of Water Resources;
3. Best Management Practices (BMPs) for Agricultural Contractors;
4. BMPs for Urban Contractors;
5. Plan Implementation;
6. Exemption Process;
7. Regional Criteria; and
8. Five-Year Revisions.
Reclamation evaluates Plans based on these criteria. A copy of these Plans will be available for review at Reclamation's Mid-Pacific Regional Office, 2800 Cottage Way, MP–410, Sacramento, California 95825. Our practice is to make comments, including names and home addresses of respondents, available for public review. If you wish to review a copy of these Plans, please contact Ms. Anderson.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
On the basis of the record
The Commission instituted these reviews on August 1, 2014 (79 FR 44862) and determined on November 4, 2014 that it would conduct expedited reviews (79 FR 69525, November 21, 2014).
The Commission completed and filed its determinations in these reviews on February 24, 2015. The views of the Commission are contained in USITC Publication 4520 (February 2015), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review: (1) An initial determination (“ID”) (Order No. 17) issued by the presiding administrative law judge (“ALJ”) on January 22, 2015, granting a motion to terminate the investigation as to respondents Sinowell (Shanghai) Co. Ltd. and Sinohydro Ltd. (collectively, “Sinowell”), based on a settlement agreement; and (2) an ID (Order No. 18) issued by the ALJ on January 27, 2015, granting a motion to terminate the investigation as to the remaining respondents based on withdrawal of the amended complaint.
Cathy Chen, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2392. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on August 12, 2014, based on a complaint filed on June 20, 2014, amended on July 11, 2014, and supplemented on July 18, 2014, on behalf of Sunlight Supply, Inc. of Vancouver, Washington and IP Holdings, LLC of Vancouver, Washington (collectively, “Sunlight”). 79 FR 47156 (Aug. 12, 2014). The amended complaint alleged violations of Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the sale for importation, importation, and sale within the United States after importation of certain light reflectors and components, packaging, and related advertising thereof by reason of infringement of certain claims of U.S. Patent Nos. 7,641,367; D634,469; D644,185; D545,485; and by reason of infringement of U.S. Trademark Registration Nos. 3,871,765; and
On December 16, 2014, the Commission determined not to review an ID (Order No. 12) granting a motion to terminate the investigation as to respondents The Hydro Source II, Inc.; Bizright, LLC; and Silversun, Inc., based upon settlement agreements.
On December 16, 2014, Sunlight moved to terminate the investigation as to Sinowell based upon a settlement agreement between Sunlight and Sinowell. That same day, Sunlight also moved to terminate the investigation as to the remaining respondents Groco Enterprises, LLC; Good Nature Garden Supply; Aqua Serene, Inc.; Aurora Innovations, Inc.; Big Daddy Garden Supply, Inc.; Insun, LLC; Lumz'N Blooms, Ltd. Corp; ParluxAmerica LLP; and Zimbali Group, Inc., based on withdrawal of the amended complaint as to these respondents. Sunlight asserted that there are no agreements, written or oral, express or implied between the parties concerning the subject matter of this investigation, other than the confidential settlement agreement between Sunlight and Sinowell. Sunlight also asserted that granting the motions is in the public interest and will conserve the resources of the Commission. The Commission's Investigative Attorney filed responses in support of the motions.
On January 22, 2015, the ALJ issued an ID (Order No. 17), granting the motion to terminate the investigation as to Sinowell. The ALJ found that the settlement agreement appears to resolve the dispute between Sunlight and Sinowell, and that granting the motion would not adversely affect the public interest factors. No petitions for review were filed.
On January 27, 2015, the ALJ issued an ID (Order No. 18), granting the motion to terminate the investigation as to the remaining respondents. The ALJ found that no extraordinary circumstances exist that would prevent the requested termination of the remaining respondents from the investigation. The ALJ also found that the parties have complied with the requirements of Rule 210.21(a). No petitions for review were filed.
The Commission has determined not to review the two subject IDs.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Federal Bureau of Investigation, Department of Justice.
60-day notice.
The Department of Justice (DOJ), Federal Bureau of Investigation (FBI), Criminal Justice Information Services (CJIS) Division, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until April 28, 2015.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Rachel K. Hurst, Management and Program Analyst, FBI, CJIS, Biometric Services Section, Customer Support Unit, Module E–1, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306 (facsimile: 304–625–5392).
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
Notice is hereby given that, on January 14, 2015, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and MSGIP 2.0 intends to file additional written notifications disclosing all changes in membership.
On February 5, 2013, MSGIP 2.0 filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on October 27, 2014. A notice was published in the
Notice is hereby given that, on January 16, 2015, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
The following members have changed their names: Elion Ettevõtted AS to AS Eesti Telekom, Tallinn, ESTONIA; LeanMeanBusinessMachine to BumpConductor B.V., Driehuis, NETHERLANDS; and Nextel del Perú SA to Entel Peru SA, Lima, PERU.
The following members have withdrawn as parties to this venture: 6fusion USA, Inc., Raleigh, NC; ArenaCore Pty Ltd., Melbourne, AUSTRALIA; Ariston Global, Pittsford, NY; Aspivia Ltd., Illovo, SOUTH AFRICA; Atoll Solution Ltd., Urom, HUNGARY; BEISIS, Ceroux Mousty, BELGIUM; Cloudscaling© (The Cloudscaling Group, Inc.), San Francisco, CA; Competitiveness Cluster Secured Communications Solutions, Valbonne Sophia Antipolis, FRANCE; Concordus Applications Inc., Sacramento, CA; Delta Partners FZ LLC, Dubai, UNITED ARAB EMIRATES; Desfossés Consultation, Québec, CANADA; Digital Enterprise Research Institute—NUI Galway, Galway, IRELAND; Dimetis GmbH, Dietzenbach, GERMANY; EuroCloud Netherlands, Haarlem, NETHERLANDS; First Derivatives Ireland Ltd., Dublin, IRELAND; Gilgamesh OSS Services, Weybridge, UNITED KINGDOM; Global Consultants Group 2020 C.A., Chacao, VENEZUELA; ICT Solutions Central America, Guatemala, GUATEMALA; Inetra, Novosibirsk, RUSSIA; Kreare Assessoria Empresarial, São Paulo, BRAZIL; Lyatiss, Lyon, FRANCE; Maveric Systems Limited, Chennai, INDIA; Network Laboratory, Department of Information and Communication Engineering, The University of Tokyo, Tokyo, JAPAN; Objective Systems Integrators, Folsom, CA; OneNet Ingeniería S.A., Santiago, CHILE; OSS Evolution, Ottawa, CANADA; PiA Bilişim Hizmetleri Ltd., Ataşehir—İstanbul, TURKEY; Pictor Consulting, Danderyd, SWEDEN; Proxwel, Bizerte, TUNISIA; Sagacity Softwares Private Limited, Pune, INDIA; Swiss Mobility Solutions, Alicante, SPAIN; Tele Greenland, Nuuk, GREENLAND; TM Forum Test, Morristown, NJ; TMSConsult.net, Kuala Lumpur, MALAYSIA; TURKSAT AS, Ankara, TURKEY; Universidad de Alcalá, Madrid, SPAIN, Laboratorio de Medición de Software, Madrid, SPAIN; University of Deusto—Deusto Institute of Technology, Bilbao, SPAIN; Winitu Communications B.V., Bodegraven, NETHERLANDS; XINTEC S.A., Munsbach, LUXEMBOURG; Xirrus, Thousand Oaks, CA; ARSAT, Buenos Aires, ARGENTINA; ATANOO Europe GmbH, Zug, SWITZERLAND; CA
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and The Forum intends to file additional written notifications disclosing all changes in membership.
On October 21, 1988, The Forum filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on October 3, 2014. A notice was published in the
Notice is hereby given that, on January 23, 2015, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and NSRP intends to file additional written notifications disclosing all changes in membership.
On March 13, 1998, NSRP filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on November 5, 2014. A notice was published in the
Notice is hereby given that, on January 27, 2015, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
In addition, Fimeccanica, Roma, Italy; and FacetApp LLC, Seattle, WA, have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and NCOIC intends to file additional written notifications disclosing all changes in membership.
On November 19, 2004, NCOIC filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on October 14, 2014. A notice was published in the
I, J. Patricia W. Smoot, of the United States Parole Commission, was present at a meeting of said Commission, which started at approximately 10:00 a.m., on Tuesday, February 24, 2015 at the U.S. Parole Commission, 90 K Street NE., Third Floor, Washington, DC 20530. The purpose of the meeting was to discuss five original jurisdiction cases pursuant to 28 CFR Section 2.27. Four Commissioners were present, constituting a quorum when the vote to close the meeting was submitted.
Public announcement further describing the subject matter of the meeting and certifications of the Acting General Counsel that this meeting may be closed by votes of the Commissioners present were submitted to the Commissioners prior to the conduct of any other business. Upon motion duly made, seconded, and carried, the following Commissioners voted that the meeting be closed: J. Patricia W. Smoot, Cranston Mitchell, Patricia Cushwa and Charles T. Massarone.
Notice.
The Department of Labor (DOL) is submitting the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Affordable Care Act Section 2715 Summary Disclosures,” 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
The OMB will consider all written comments that agency receives on or before March 30, 2015.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–EBSA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email:
Contact 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 Affordable Care Act Section 2715 Summary Disclosures information collection. Public Health Service Act section 2715 directed the Department of Health and Human Services (HHS), the Department of Labor (DOL), and the Department of the Treasury (collectively, the Departments), in consultation with the National Association of Insurance Commissioners (NAIC) and a working group comprised of stakeholders, to develop standards for use by a group health plan and a health insurance issuer in compiling and providing to applicants, enrollees, and policyholders and certificate holders a summary of benefits and coverage explanation that accurately describes the benefits and coverage under the applicable plan or coverage. The subject information collection relates to the provision of the following: A summary of benefits and coverage, which includes coverage examples; a uniform glossary of health coverage and medical terms; and notice of modifications. Group health plans and health insurance issuers is required to use the Summary of Benefits and Coverage template and instructions for completing the template, as authorized by the Departments, to satisfy the section 2715 disclosure requirements. Affordable Care Act section 2715 authorizes 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 February 28, 2015. 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,
Notice.
The Department of Labor (DOL) is submitting the Office of Workers' Compensation Programs (OWCP) sponsored information collection request (ICR) revision titled, “Notice of Controversion of Right to Compensation,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before March 30, 2015.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–OWCP, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email:
Contact Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064, (these are not toll-free numbers) or sending an email to
44 U.S.C. 3507(a)(1)(D).
This ICR seeks approval under the PRA for revisions to the Notice of Controversion of Right to Compensation information collection. Form LS–207 is used by insurance carriers and self-insured employers to controvert claims under the Longshore Act and extensions. This information collection has been classified as a revision, because the Department has made cosmetic changes to Form LS–207, such as expanding the size of boxes used for responding, updating the instructions, and addition of instructions for injured workers and beneficiaries. These changes are not expected to change the public burden. Longshore and Harbor Worker's Compensation Act section 901(d) authorizes this 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.
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,
Notice.
The Department of Labor (DOL) is submitting the Employment & Training Administration (ETA) sponsored information collection request (ICR) titled, “Contribution Operations,” 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
The OMB will consider all written comments that agency receives on or before March 30, 2015.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–ETA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Contribution Operations information collection. In support of Unemployment Insurance statutory and regulatory requirements, ETA 581 provides quarterly data on State agencies' volume and performance in wage processing, promptness of liable employer registration, timeliness of filing contribution and wage reports, extent of tax delinquency, and results of the field audit program. Social Security Act section 303(a)(6) authorizes 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 February 28, 2015. 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,
Notice.
The Department of Labor (DOL) is submitting the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Coverage of Certain Preventive Services Under the Affordable Care Act,” 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
The OMB will consider all written comments that agency receives on or before March 30, 2015.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–EBSA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email:
Contact 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 “Coverage of Certain Preventive Services Under the Affordable Care Act” information collection. The information collection requires any plan established or maintained by certain religious employers (and group health insurance coverage provided in connection with such a plan) claiming exemption to providing contraceptive service to self-certify that it meets the definition of an eligible organization. The eligible organization provides its health insurance issuer or third-party administrator with a copy of the self-certification. A third-party administrator arranging or providing payments for contraceptive services at no cost to participants and beneficiaries in insured or self-insured plans (or student enrollees and covered dependents in student health insurance coverage) of an eligible organization is to provide a written notice to plan participants and beneficiaries (or such student enrollees and covered dependents) informing them of the availability of such payments. The notice must be provided contemporaneous with (to the extent possible) but separate from plan enrollment (or re-enrollment) materials, and must specify that contraceptive coverage will not be provided by the eligible organization but that the third-party administrator will separately arrange or provide payments for contraceptive services. The notice must also provide contact information for the third-party administrator for questions and complaints. To satisfy the notice requirement, a third-party administrator may use the model language set forth in the final regulations or substantially similar language. Form EBSA–700, Eligible Organization Self-Certification, may be used to make the certification to the insurer. Interim final regulations issued in 2014 provide for an alternative notification to the Federal government when an eligible organization has a religious objection to providing contraceptive coverage that still preserves participants' and beneficiaries' access to coverage for the full range of Food and Drug Administration approved contraceptives, as prescribed by a health care provider, without cost sharing. Employee Retirement Income Security Act of 1974 section 307 authorizes this 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 February 28, 2015. 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,
Notice.
The Department of Labor (DOL) is submitting the Office of Workers' Compensation Programs (OWCP) sponsored information collection request (ICR) revision titled, “Notice of Final Payment or Suspension of Compensation Benefits,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before March 30, 2015.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–OWCP, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064, (these are not toll-free numbers) or sending an email to
44 U.S.C. 3507(a)(1)(D).
This ICR seeks approval under the PRA for revisions to the Notice of Final Payment or Suspension of Compensation Benefits information collection. The Notice of Final Payment or Suspension of Compensation Benefits, Form LS–208, is used by insurance carriers and self-insured employers to report the payment of benefits under the Longshore and Harbors Workers Compensation Act. This information collection has been classified as a revision, because the Department has made cosmetic changes to the Form LS–208, such as expanding the size and types of boxes used for responding. These changes are not expected to change the public burden. Longshore and Harbor Workers' Compensation Act section 914(g) authorizes this 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.
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,
Employment and Training Administration, Labor.
Notice.
Each year, the Department of Defense issues a Schedule of Remuneration that may be used by states, as needed, for UCX purposes. States must use the schedule to determine Federal military wages for UCX “first claims” only when the Federal Claims Control Center (FCCC) responds to a request for information indicating that there is no Copy 5 of the Certificate of Release or Discharge from Active Duty (DD Form 214) for an individual under the social security number provided. A response from the FCCC that indicates “no DD214 on file” will prompt the state to start the affidavit process and to use the attached schedule to calculate the Federal military wages for an unemployment insurance or UCX monetary determination.
The schedule applies to UCX “first claims” filed beginning with the first day of the first week that begins on or after January 1, 2015, pursuant to the UCX program regulations (see 20 CFR 614.12(c)). States must continue to use the existing schedule for UCX “first claims” filed before the effective date of the revised schedule.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Planetary Science Subcommittee of the NASA Advisory Council (NAC). This Subcommittee reports to the Science Committee of the NAC. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Monday, March 30, 2015, 10:00 a.m. to 5:00 p.m., and Tuesday, March 31, 2015, 8:30 a.m. to 5:00 p.m., Local Time.
NASA Headquarters, Room 5H41A, 300 E Street SW., Washington, DC 20546.
Ms. Ann Delo, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358–0750, fax (202) 358–2779, or
The meeting will be open to the public up to the capacity of the room. The meeting will be available telephonically and by WebEx. Any interested person may call the USA toll free conference call number 844–467–4685, passcode 863162, followed by the # sign, to participate in this meeting by telephone. The WebEx link is
Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID to Security before access to NASA Headquarters. Foreign nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no less than 10 working days prior to the meeting: Full name; gender; date/place of birth;
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Astrophysics Subcommittee of the NASA Advisory Council (NAC). This Subcommittee reports to the Science Committee of the NAC. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Tuesday, March 17, 2015, 8:30 a.m. to 4:30 p.m., and Wednesday, March 18, 2015, 9:00 a.m. to 3:00 p.m., Local Time.
NASA Headquarters, Room 6H41, 300 E Street SW., Washington, DC 20546.
Ms. Ann Delo, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358–0750, fax (202) 358–2779, or
The meeting will be open to the public up to the capacity of the room. The meeting will be available telephonically and by WebEx. Any interested person may call the USA toll free conference call number 877–917–4912, Passcode APSMARCH to participate in this meeting by telephone. The WebEx link is
Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID to Security before access to NASA Headquarters. Foreign nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no less than 10 working days prior to the meeting: Full name; gender; date/place of birth; citizenship; visa information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee; and home address to Ann Delo via email at
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Heliophysics Subcommittee of the NASA Advisory Council (NAC). This Subcommittee reports to the Science Committee of the NAC. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Monday, March 30, 2015, 9:00 a.m.–5:00 p.m., and Tuesday, March 31, 2015, 9:00 a.m.–4:00 p.m., Local Time.
NASA Headquarters, Room 6H41, 300 E Street SW., Washington, DC 20546.
Ms. Ann Delo, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358–0750, fax (202) 358–2779, or
The meeting will be open to the public up to the capacity of the room. This meeting will also be available telephonically. Any interested person may call the USA toll free conference call number 1–800–779–8718, passcode 13089, to participate in this meeting by telephone. The agenda for the meeting includes the following topics:
Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID to Security before access to NASA Headquarters. Foreign nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no less than 10 working days prior to the meeting: Full name; gender; date/place of birth; citizenship; visa information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee; and home address to Ann Delo via email at
National Science Foundation.
Notice and request for comments.
Under the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3501
Written comments on this notice must be received by April 28, 2015, to be assured consideration. Comments received after that date will be considered to the extent practicable. Send comments to address below.
Ms. Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Boulevard, Suite 1265, Arlington, Virginia 22230; telephone (703) 292–7556; or send email to
In the last decade, state-of-the art data collection and analysis methods have been increasingly instituted by NSF and other federal agencies, and are now routinely used to improve the quality and timeliness of data and analyses. These new methods or techniques many times help reduce respondents' cognitive workload and burden. The purpose of this generic clearance is to allow NSF to continue to adopt and use these methods or techniques to improve its current data collections on science, engineering, and technology inputs, outputs and outcomes. They will be used to improve the content of existing surveys, to aid in the development of new data collections to capture changes in the U.S. science and engineering (S&E) enterprise, and to fill gaps in coverage of the S&E enterprise in the existing NSF portfolio.
Following standard OMB requirements, NSF will submit to OMB an individual request for each survey improvement project it undertakes under this generic clearance. NSF will request OMB approval in advance and provide OMB with a copy of the questionnaire (if one is used) and materials describing the project.
NSF envisions using a variety of survey improvement techniques, as appropriate to the individual projects, such as focus groups, cognitive and usability laboratory and field techniques, exploratory interviews, behavior coding, respondent debriefing, pilot studies, pretests and split-panel tests. NSF has used such techniques in previous activities conducted under generic clearances granted to individual divisions.
a.
b.
c.
d.
e.
f.
g.
The cost to respondents generated by the list of potential projects is estimated to be $3,205,680 over the three years of the clearance. No one year's cost would exceed $3,205,680. In other words, if all work were done in one year, costs in that one year would be $3,205,680 and the costs in each of the other 2 years would be zero. As in previous requests for generic clearance authority, the total cost was estimated by summing all the hours that might be used on all projects over the three years (76,000) and multiplying that figure by the hourly wage ($42.18) of the level of employee who typically answers NSF questionnaires or attends NSF workshops. This wage amount is the May 2011 national cross-industry estimate of the mean hourly wage for a financial analyst, or Job Category 13–2051, by the Bureau of Statistics.
There are no capital, startup, operation or maintenance costs to the respondents. The costs generated by future data collections will be described in the clearance request for each specific data collection. NSF does not anticipate any capital, startup, operation, or maintenance costs for future surveys.
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is considering a license amendment request for the Special Nuclear Materials (SNM) License SNM–2507 for the North Anna Power Station (NA) independent spent fuel storage installation (ISFSI) located in Louisa County, Virginia.
The environmental assessment and finding of no significant impact referenced in this document are available on February 27, 2015.
Please refer to Docket ID NRC–2014–0154 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1–F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Jean Trefethen, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–5137, email:
The NRC is considering a license amendment request for Special Nuclear Materials License Number SNM–2507 for the NA ISFSI located in Louisa County, Virginia (ADAMS Accession No. ML14160A707). The applicant, Virginia Electric and Power Company (Dominion), is proposing to amend Technical Specifications (TS) 4.2.3, “Storage Pad,” to define the minimum center-to-center spacing for Transnuclear-32 spent nuclear fuel storage casks, with heat loads no greater than 27.1 kilowatts (kW), from 16 feet (feet) to 14 feet. The NRC staff has prepared a final environmental assessment (EA) as part of its review of this proposed license amendment in accordance with the requirements in part 51 of Title 10 of the
On August 23, 2011, during an earthquake centered in Mineral, Virginia, 25 of 27 of the Transnuclear-32 casks on NA ISFSI Pad I shifted from their original positions. The shifting changed the center-to-center spacing of the casks from 16 feet to a range of 15 feet 2.25 inches to 16 feet 11.25 inches. Dominion is proposing to amend SNM–2507 TS 4.2.3, which would change the allowable distance between individual casks (center-to-center) from a nominal 16 feet to a minimum of 14 feet for those casks with heat loads no greater than 27.1 kW. Dominion is requesting this license amendment in lieu of moving
The NRC has assessed the potential environmental impacts associated with the proposed action of amending SNM–2507 TS 4.2.3, as well as the no-action alternative, and has documented the results in the final EA (ADAMS Accession No. ML15022A575). The NRC staff performed its environmental review in accordance with the requirements in 10 CFR part 51. In conducting the environmental review, the NRC considered information in the license amendment application; information in the responses to the NRC's requests for additional information (RAIs); communications with Dominion, the Virginia State Historic Preservation Office, the Virginia Department of Game and Inland Fisheries and the Virginia Department of Health; information from the NRC inspections; and the NRC's independent analysis.
Approval of Dominion's proposed license amendment would allow the casks to remain in place at their current post-earthquake positions and spacing, and no changes to Dominion's operation and maintenance of the NA ISFSI are associated with the proposed action. Because the proposed action would authorize Dominion to leave the casks in their current positions, rather than taking action to return the casks to their pre-earthquake positions, no significant radiological or non-radiological impacts are expected to result from approval of the license amendment request, and the proposed action would not significantly contribute to cumulative impacts at the NA site. There would be no disproportionally high and adverse impacts on minority and low-income populations. The Virginia State Historic Preservation Office concurred with the NRC's determination that the proposed action would not affect historic properties, and the U.S. Fish and Wildlife Service concurred with the NRC's determination that the proposed action would not affect listed species or critical habitats. Furthermore, the NRC determined that the proposed action is more favorable than the no-action alternative (denial of the license amendment request), which would require movement of the casks back to their pre-earthquake positions and spacing. Thus, the NRC concludes that the proposed action will not result in a significant effect on the quality of the human environment.
Based on its review of the proposed action, in accordance with the requirements in 10 CFR part 51, the NRC has concluded that the proposed action, amendment of NRC Special Nuclear Materials License No. SNM–2507 for the NA ISFSI located in Louisa County, Virginia, will not significantly affect the quality of the human environment. Therefore, the NRC has determined, pursuant to 10 CFR 51.31, that preparation of an environmental impact statement is not required for the proposed action and a FONSI is appropriate.
For the Nuclear Regulatory Commission.
Pursuant to delegation by the Commission,
This proceeding concerns motions, dated February 5, 2015 and filed February 6, 2015, by Southern Alliance for Clean Energy to (1) reopen the record; and (2) admit a new contention in the captioned matter regarding the updated application by Tennessee Valley Authority for a facility operating license for Watts Bar Nuclear Plant, Unit 2, to be located in Rhea County, Tennessee.
The Board is comprised of the following administrative judges:
All correspondence, documents, and other materials shall be filed in accordance with the NRC E-Filing rule.
Nuclear Regulatory Commission.
License amendment application; opportunity to request a hearing and to petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) has received an application from the Westinghouse Electric Company, LLC (Westinghouse or the licensee) to renew special nuclear material (SNM) license number SNM–1107 that authorizes Westinghouse to manufacture nuclear fuel assemblies at the Columbia Fuel Fabrication Facility (CFFF) in Hopkins, SC, for use in commercial nuclear power plants. The license renewal would allow Westinghouse to continue licensed activities for 40 years from the date that a renewed license is issued.
A request for a hearing or petition for leave to intervene must be filed by April 28, 2015.
Please refer to Docket ID NRC–2015–0039 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
•
•
•
Christopher Ryder, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington DC 20555–0001; telephone: 301–287–0651; email:
The NRC has received, by letter dated November 30, 2012, and revised/supplemented on July 31, 2014, and December 27, 2014, a request to renew SNM license number SNM–1107, authorizing Westinghouse to manufacture nuclear fuel assemblies at the CFFF in Hopkins, South Carolina, for use in commercial nuclear power plants. The manufacturing operations consist of receiving low-enriched (
An NRC administrative completeness review, dated December 30, 2014, found the application acceptable for a technical review. During the technical review, the NRC will be reviewing the application in areas of the site description, organization of the CFFF, integrated safety analysis, radiation protection, nuclear criticality safety, chemical process safety, fire safety, emergency management, environmental protection, decommissioning, management measures, physical security, and nuclear material control. Prior to approving the request to renew SNM license number SNM–1107, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and the NRC's regulations. The NRC's findings will be documented in a safety evaluation report. Regarding the proposed action, the NRC will also make findings consistent with the National Environmental Policy Act and 10 CFR part 51.
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition to intervene shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located in One White Flint North, Room O1–F21 (first floor), 11555 Rockville Pike, Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth, with particularity, the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted, with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion that support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence, consistent with NRC regulations, policies, and procedures. The Atomic Safety and Licensing Board will set the time and place for any prehearing conferences and evidentiary hearings, and the appropriate notices will be provided.
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying
A State, local governmental body, Federally-recognized Indian tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by April 28, 2015. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that under § 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may also have the opportunity to participate under 10 CFR 2.315(c).
If a hearing is granted, any person who does not wish, or is not qualified, to become a party to the proceeding may, in the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Persons desiring to make a limited appearance are requested to inform the Secretary of the Commission by April 28, 2015.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
E-Filing system. To be timely, an electronic filing must be submitted to the E-Filing system no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of a transmission, the
E-Filing system time-stamps the document and sends the submitter an email notice confirming receipt of the document. The E-Filing system also distributes an email notice that provides access to the document to the NRC's Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request/petition to intervene is filed so that they can obtain access to the document via the E-Filing system.
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, Attention: Rulemaking and Adjudications Staff Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
The documents identified in the following table are available in ADAMS to interested persons.
For the Nuclear Regulatory Commission.
Week of February 23, 2015.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public.
This meeting will be webcast live at the Web address—
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Glenn Ellmers at 301–415–0442 or via email at
By a vote of 4–0 on February 23 and 24, 2015, the Commission determined pursuant to U.S.C. 552b(e) and '9.107(a) of the Commission's rules that the above referenced Affirmation Session be held with less than one week notice to the public. The meeting is scheduled on February 26, 2015.
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 (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301–415–1969), or email
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 40–F (17 CFR 249.240f) is used by certain Canadian issuers to register a class of securities under Section 12 of the Securities Exchange Act of 1934 (“Exchange Act”) (15 U.S.C. 78
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549; or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 20–F (17 CFR 249.220f) is used to register securities of foreign private issuers pursuant to Section 12 of the Securities Exchange Act of 1934 (“Exchange Act”) (15 U.S.C. 78
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549; or send an email to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 17Ac2–2 and Form TA–2 require registered transfer agents to file an annual report of their business activities with the Commission. These reporting requirements are designed to ensure that all registered transfer agents are providing the Commission with sufficient information on an annual basis about the transfer agent community and to permit the Commission to effectively monitor business activities of transfer agents.
The amount of time needed to comply with the requirements of amended Rule 17Ac2–2 and Form TA–2 varies. Of the total 429 registered transfer agents, approximately 9.1% (or 39 registrants) would be required to complete only questions 1 through 3 and the signature section of amended Form TA–2, which the Commission estimates would take each registrant approximately 30 minutes, for a total burden of 19.5 hours (39 × .5 hours). Approximately 26.7% of registrants (or 115 registrants) would be required to answer questions 1 through 5, question 11 and the signature section, which the Commission estimates would take approximately 1 hour and 30 minutes, for a total of 172.5 hours (115 × 1.5 hours). Approximately 64.2% of the registrants (or 275 registrants) would be required to complete the entire Form TA–2, which the Commission estimates would take approximately 6 hours, for a total of 1,650 hours (275 × 6 hours). The aggregate annual burden on all 429 registered transfer agents is thus approximately 1,842 hours (19.5 hours + 172.5 hours + 1,650 hours) and the average annual burden per transfer agent is approximately 4.3 hours (1,842 ÷ 429).
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information on respondents; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
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.
Please direct your written comments to: Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549, or send an email to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 15g–6 requires brokers and dealers that sell penny stocks to provide their customers monthly account statements containing information with regard to the penny stocks held in customer accounts. The purpose of the rule is to increase the level of disclosure to investors concerning penny stocks generally and specific penny stock transactions.
The Commission estimates that approximately 221 broker-dealers will spend an average of 78 hours annually to comply with this rule. Thus, the total compliance burden is approximately 17,238 burden-hours per year.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
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.
Please direct your written comments to: Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549 or send an email to
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission Advisory Committee on Small and Emerging Companies will hold a public meeting on Wednesday, March 4, in Multi-Purpose Room LL–006 at the Commission's headquarters, 100 F Street NE., Washington, DC.
The meeting will begin at 9:30 a.m. (EDT) and will be open to the public. Seating will be on a first-come, first-served basis. Doors will open at 9:00 a.m. Visitors will be subject to security checks. The meeting will be webcast on the Commission's Web site at
On February 17, 2015 the Commission published notice of the Committee meeting (Release No. 33–9724), indicating that the meeting is open to the public and inviting the public to submit written comments to the Committee. This Sunshine Act notice is being issued because a majority of the Commission may attend the meeting.
The agenda for the meeting includes matters relating to rules and regulations affecting small and emerging companies under the federal securities laws.
For further information, please contact the Office of the Secretary at (202) 551–5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to adopt NASD Rules 3170 (Mandatory Electronic Filing Requirements), 1150 (Executive Representative), and 1160 (Contact Information Requirements) as FINRA Rule 4517 (Member Filing and Contact Information Requirements) without any substantive changes. FINRA also proposes to update references and cross-references within other FINRA rules accordingly.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
As part of the process of developing a new consolidated rulebook (“Consolidated FINRA Rulebook”),
Proposed FINRA Rule 4517(a) would transfer without substantive change NASD Rule 3170 (Mandatory Electronic Filing Requirements) which requires each member to file with or otherwise submit to FINRA, in such electronic format as FINRA may require, all regulatory notices or other documents required to be filed or otherwise submitted to FINRA, as specified by FINRA. FINRA will advise firms via the
Proposed FINRA Rule 4517(b) would transfer without substantive change NASD Rule 1150, the provision requiring that each member must identify, review and, if necessary, update its executive representative designation and contact information as required by Article IV, Section 3 of the NASD By-Laws in the manner prescribed by NASD Rule 1160. The proposed rule would replace the references to the legacy NASD By-Laws and rule with FINRA By-Laws and rule.
Proposed FINRA Rule 4517(c) would transfer without substantive changes the requirements of NASD Rule 1160 (Contact Information Requirements). The only changes to the proposed rule text are minor editorial changes to reflect current nomenclature, and to assist and enhance readability. NASD Rule 1160 requires members to report and update contact information to FINRA via the “NASD Contact System or such other means as NASD may specify,” and to promptly comply with any FINRA request for the required contact information. Currently, NASD Rule 1160 supports members' compliance with NASD Rule 1150 (Executive Representative) and FINRA Rules 1250 (Continuing Education Requirements), 3310.02 (Review of Anti-Money Laundering Compliance Person Information), and 4370 (Business Continuity Plans and Emergency Contact Information), which all require members to provide FINRA with designated contact person information.
Proposed FINRA Rule 4517(c) would require each member to report and update to FINRA all contact information applicable to the member that FINRA
In addition, proposed FINRA Rule 4517(c)(1) would require a member to update its contact information promptly, but in any event not later than 30 days following any change in such information, and review, and if necessary, update the required contact information within 17 business days after the end of each calendar year. This proposed provision replaces the nearly identical provision in NASD Rule 1160(b) but with a minor editorial change to delete the phrase “via the NASD Contact System or such other means as NASD may specify” from the proposed rule text, because the phrase already appears in proposed paragraph (c). Furthermore, proposed FINRA Rule 4517(c)(2) would require that each firm comply promptly with any FINRA request for the required contact information, but in any event not later than 15 days following the request, or such longer period that may be agreed to by FINRA staff. This proposed provision replaces the nearly identical provision in NASD Rule 1160(c) but with the minor editorial change from NASD Rule 1160(c)'s “such information” to “the required contact information” to enhance the readability of the proposed rule. As with NASD Rule 1160, the proposed rule change would not relieve firms from any separate requirements to update such information.
The proposed rule change would also replace all references to NASD Rules 1150 and 1160 in FINRA Rules 1250 (Continuing Education Requirements), 3310.02 (Review of Anti-Money Laundering Compliance Person Information), 4370 (Business Continuity Plans and Emergency Contact Information), and 9217 (Violations Appropriate for Disposition Under Plan Pursuant to SEA Rule 19d–1(c)(2)) with references to proposed FINRA Rule 4517 accordingly.
FINRA has filed the proposed rule change for immediate effectiveness and has requested that the SEC waive the requirement that the proposed rule change not become operative for 30 days after the date of the filing so that FINRA can implement the proposed rule change immediately.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. As noted above, this proposal will not substantively change either the text or application of the rules. FINRA would like to proceed with the rulebook consolidation process expeditiously, which it believes will provide additional clarity and regulatory efficiency to members.
Written comments were neither solicited nor received with respect to this proposal to transfer NASD Rules 1150, 1160 and 3170 into the Consolidated FINRA Rulebook without any substantive changes.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Section 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 Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the fee schedule applicable to Members
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to modify its fee schedule in order to: (1) remove the reference to ROLF from fee code BO; (2) make certain changes to Cross-Asset Step-Up Tier 3; and (3) make certain non-substantive clean-up changes to the fee schedule.
The Exchange proposes to amend its fee schedule to remove the reference to
The Exchange is also proposing to make a non-substantive change to the definition of “Step-Up Add TCV” in its fee schedule. Currently, Step-Up Add TCV means ADAV
The Exchange is also proposing to amend the criteria for meeting Tier 3 in the Cross-Asset Step-Up Tiers. Specifically, the Exchange is proposing to make two changes: to base the tier calculation on a Member's Step-Up Add TCV from December 2014; and to lower the threshold required to meet Tier 3 from 0.20% to 0.15%. Currently, in order to meet Tier 3 of the Cross-Asset Step-Up Tier and receive a $0.0032 rebate per share that adds liquidity: (i) a Member's ADAV as a percentage of TCV must be equal to or greater than 0.20%; and (ii) the Member's Options Step-Up Add TCV
The Exchange proposes to implement the amendments to its fee schedule effective February 10, 2015.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6 of the Act.
The Exchange believes that its proposal to eliminate ROLF from fee code BO represents an equitable allocation of reasonable dues, fees, and other charges among Members and other persons using its facilities. The proposed change is in response to LavaFlow's announcement that it will cease market operations and its last day of trading will be Friday, January 30, 2015. The Exchange notes that the proposed change is not designed to amend any fee or rebate, nor alter the manner in which the Exchange assesses fees and rebates. As of February 2, 2015, the Exchange will no longer route orders to LavaFlow and, therefore, proposes to remove ROLF from the fee schedule, which will make the fee schedule clearer and less confusing for investors as well as help to eliminate potential investor confusion, thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system, and, in general, protecting investors and the public interest.
The Exchange also believes that the proposed non-substantive change to the definition of Step-Up Add TCV and the corresponding non-substantive change to the Step-Up Tiers are reasonable, fair, and equitable because they are designed to make the fee schedule easier to comprehend in light of the decision to add an additional baseline month, as described above. The Exchange notes that neither of the proposed changes are designed to amend any fee or rebate, nor alter the manner in which the Exchange assesses fees and rebates. These non-substantive changes to the fee schedule are intended to make the fee schedule clearer and less confusing for investors and eliminate potential investor confusion, thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system, and, in general, protecting investors and the public interest.
The Exchange also believes that the proposed change to measure the Member's Step-Up Add TCV from December 2014 instead of ADAV as a percentage of TCV is reasonable, fair, and equitable because it will incentive Members to increase their participation on the Exchange as compared to December 2014, rather than maintaining a static ADAV as a percentage of TCV. The Exchange further believes that the proposal is reasonable, fair, and equitable because the increased liquidity from incentivizing Members to increase their participation on the Exchange will benefit all investors by deepening the liquidity pool on the Exchange, supporting the quality of price discovery, promoting market transparency, and improving investor protection. The Exchange also believes that lowering the threshold to meet the requirement from 0.20% to 0.15% is reasonable, fair, and equitable because the measurement is changing from a measure of total added volume (ADAV
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. To the contrary, the Exchange believes that the proposed changes to the Cross-Asset Step-Up Tiers will allow the Exchange to compete more ably with other execution venues by drawing additional volume to the Exchange, thereby making it a more desirable destination venue for its customers. Further, the Exchange does not believe that these proposed changes represent a significant departure from previous pricing offered by the Exchange or pricing offered by the Exchange's competitors. Additionally, Members may opt to disfavor the Exchange's pricing if they believe that alternatives offer them better value. Accordingly, the Exchange does not believe that the proposed change will impair the ability of Members or competing venues to maintain their competitive standing in the financial markets.
The Exchange also believes that its proposal to remove ROLF from fee code BO would not affect intermarket nor intramarket competition because the change is not designed to amend any fee or rebate or to alter the manner in which the Exchange assesses fees or calculates rebates. It is simply proposed in response to LavaFlow's announcement that it will cease market operations following the close of business on Friday, January 30, 2015.
The Exchange believes that the non-substantive and organizational changes to the fee schedule would not affect intermarket nor intramarket competition because none of the proposed changes are designed to amend any fee or rebate or to alter the manner in which the Exchange asses fees or rebates. The changes are intended to make the fee schedule as clear and concise as possible.
As stated above, the Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee structures to be unreasonable or excessive.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an 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 is proposing to adopt a rule that further describes its existing order handling system (also referred to below as “OHS”) and order management terminal (also referred to below as “OMT”) operations, and to make corresponding amendments to its opening, automatic execution and complex order processing rules. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to adopt new Rule 6.12 to further describe its existing OHS and OMT operations, and to make corresponding amendments to its opening, automatic execution and complex order processing rules (Rules 6.2B, 6.13, and 6.53C, respectively). The Exchange notes that these OHS and OMT operations are currently in use and referenced in the Exchange Rules. The purpose of this rule change is simply to codify further details of the existing operations within the Exchange Rules.
The CBOE Hybrid System
The Exchange believes these routing parameters assist with the maintenance of a fair and orderly market and help to mitigate potential risks associated with orders executing at potentially erroneous prices or inconsistent with a particular investment strategy by routing certain orders to a PAR workstation or a booth order management terminal for manual handling based on parameters determined by the Exchange under Rule 6.2B, 6.13 or 6.53C, by routing certain orders to an order management terminal based on parameters prescribed by the Exchange, by routing certain orders to an order management terminal or a PAR workstation or for electronic process, based on parameters prescribed by the order entry firm itself, and by routing certain orders to an order management terminal in the event of certain Exchange system disruptions or malfunctions. The order handling system also permits orders to be routed from a PAR workstation to an order management terminal (and vice versa) and from a PAR workstation or an order management terminal to the Hybrid System for automatic execution or book entry. The Exchange also views the order handling system as an important tool to assist order entry firms in their ability to efficiently manage, process and execute orders in a “hybrid” trading environment. The Exchange believes this, again, promotes fair and orderly markets, as well as assists the Exchange in its ability to effectively attract order flow and liquidity to its market, and ultimately benefits all CBOE TPHs and all investors.
Regarding booth routing parameters in particular, an order may route to an order management terminal generally located in a booth depending on various circumstances. One such set of circumstances pertains to automatic execution/book “kick-outs.” In that regard, the electronic processes under Rules 6.2B (pertaining to opening transactions), 6.13 (pertaining to simple orders) and 6.53C (pertaining to complex orders), provide that an order that is not eligible for automatic
Apart from the foregoing processes for automatic execution/book kick-outs, orders may be routed through the order handling system to an order management terminal under various other circumstances. For instance, orders may route to an order management terminal from a PAR workstation. In addition, certain orders may route directly from an order entry firm to an order management terminal for manual handling based on certain limit order price parameter settings established by the Exchange
For the remaining seven classes, the limit order price parameter levels for the premium ranges noted above are $1.00, $2.00, $3.00, $4.00 and $6.00, respectively. These limit order price parameters are referred to as the “Price Check Level B” or “Level B” settings. The Exchange has determined to apply the settings to immediate-or-cancel orders in option classes SPX (which includes symbols SPX, SPXW and SPXQ), SPXpm and SRO. For all other classes where the limit order price parameter is activated, it is not applied to immediate-or-cancel orders. For complex limit orders, the limit order price parameters are the same as the parameters for simple orders, but the complex order parameter levels are based on the derived net market (as opposed to an individual bid or offer).
The senior official in the Help Desk or two Floor Officials might also widen or inactivate one or more of these price check parameters for simple and/or complex orders on an intra-day basis in the interest of a fair and orderly market. For example, if an underlying stock is high priced or volatile and is experiencing significant price movement and the existing parameters would result in an inordinate number of limit orders not being accepted, the senior official in the Help Desk may determine to widen the parameters on an intra-day basis in the overlying or related options series. As another example, if the overall market is experiencing significant volatility, the senior official in the Help Desk or two Floor Officials may determine to widen the parameters for a group of series or classes. In that regard, the Exchange has determined that on any trading day where the front-month E-mini S&P 500 Futures (symbol ES/1) are trading more than 20 points above or below the previous day's closing values by 8:00 a.m. (all times noted are Central Time), the Exchange will widen the Price Check Level A settings to the Price Check Level B settings for the trading day for all classes where the limit order price check is activated at the Level A setting (referred to herein as the “Standing Intraday Relief Condition”).
The Exchange notes that these examples are non-exhaustive and for illustrative purposes only. (For example,
When it comes to selecting an order management terminal, some order entry firms elect to route orders to terminals located in their own booths on the floor, others elect to route orders to terminals located in another TPH's booth, and still others a combination of the foregoing. For example, a firm that only trades remotely and does not maintain a physical presence on the Exchange trading floor may elect to route its orders to one or more TPHs' booth order management terminals, or a firm might elect to have all equity option orders route to its own booth order management terminal and all index option trades route to another TPH's booth order management terminal because the firm does not wish to maintain a physical presence on the floor for index trades. A firm may also elect to route orders to another TPH's booth order management terminal because the firm may have a large number of orders to address or is experiencing system issues and has designated the other TPH's booth as a back-up.
While there are various references to the Exchange's order routing system and order management terminal functions throughout the Exchange Rules (
Proposed Rule 6.12 will include an introductory paragraph indicating that the rule describes the process for routing orders through the Exchange's OHS, which is available for classes designated for trading on the CBOE Hybrid System. The introduction will also indicate that the OHS is a feature within the Hybrid System to route orders for automatic execution, book entry, open outcry, or further handling by a broker, agent, or PAR Official, in a manner consistent with Exchange Rules and Section 6(b) of the Act.
Paragraph (a) of proposed Rule 6.12 includes a general description of the OHS's existing parameters for routing orders to OMTs. The proposed text provides that orders may route through the OHS to an OMT designated by an order entry firm in any of the circumstances described below. (The particular routing designations may be established based on various parameters established by the Exchange or order entry firm, as applicable.)
•
•
•
The Exchange also notes that the OMT messaging is now used in place of former printer messaging. Therefore, for consistency, the Exchange is proposing to update a reference in Rule 6.13 from “printer message” to “OMT message.” The Exchange also notes that the verbal messages to the trading crowds are announced over a speaker system which can be heard in the particular trading crowd as well as the trading floor. Therefore, for consistency, the Exchange is proposing to update a reference in Rule 6.13 from “trading crowd” to “trading floor.”
•
•
•
Paragraph (b) of proposed Rule 6.12 would provide that each order entry firm must designate an OMT(s) for receiving routed orders and would reflect the Exchange's current practice that permits an order entry firm to elect to have its orders routed to a booth OMT operated by the order entry firm itself and/or a booth OMT operated by another TPH.
In conjunction with the foregoing, various corresponding changes to Rules 6.2B, 6.13 and 6.53C are being proposed. In particular, existing references in the rule text to routing orders to “. . . PAR or, at the order entry firm's discretion, to the order entry firm's booth [and, if] an order is not eligible to route to PAR, then the remaining balance will be cancelled” (or substantially similar wording) will be replaced with references to routing orders “. . . via the order handling system pursuant to Rule 6.12” (or substantially similar wording).) [sic] Given the above-described proposal to further describe the routing process in proposed Rule 6.12 and to include cross-references to proposed Rule 6.12 within Rules 6.2B, 6.13 and 6.53C, the Exchange does not believe it is necessary to continue to include the routing process descriptions within Rules 6.2B, 6.13 and 6.53C.
The Exchange is proposing various miscellaneous changes to the existing text of Rule 6.13. In particular, the Exchange is proposing to include a title for each type of price check parameter within the existing rule text (
Finally, the Exchange is proposing a miscellaneous change to Rule 6.53C.08 (pertaining to complex order price check parameters) to specifically identify the price check parameters that are not applicable to stock-option orders in the introductory text to this provision. The particular parameters to which stock-option orders may be subjected are already identified within the rule text. This proposed change is simply to include a list of those parameters which are not applicable to stock-option orders in the introductory paragraph for ease of reference.
The proposed rule change is consistent with Section 6(b) of the Act
The Exchange views these routing parameters as important tools that assist order entry firms in their ability to efficiently manage, process and execute orders in a “hybrid” trading environment. In addition, the Exchange believes these routing parameters assist with the maintenance of fair and orderly markets and help to mitigate potential risks associated with orders executing at potentially erroneous prices or inconsistent with a particular investment strategy by routing certain orders to PAR or an OMT for manual handling based on parameters determined by the Exchange under Rule 6.2B, 6.13 or 6.53C, by routing certain orders directly from an order entry firm to an order management terminal based on parameters prescribed by the Exchange (and announced via regulatory circular) or to an order management terminal or PAR workstation or for electronic processing based on parameters prescribed by the order entry firm itself, and by routing certain orders to an OMT in the event of certain Exchange system disruptions or malfunctions. The OHS also permits orders to be routed from a PAR to an OMT (and vice versa) and from either PAR or an OMT to the Hybrid System for automatic execution or book entry. In addition, the Exchange believes that the routing parameters generally are not unfairly discriminatory because they are made available to all order entry firms on an equal basis. Further, as discussed above, they are intended to assist order entry firms in their ability to efficiently manage, process and execute orders in a “hybrid” trading environment, which promotes fair and orderly markets, as well as assists the Exchange in its ability to effectively attract order flow and liquidity to its market, and ultimately benefits all CBOE TPHs and all investors.
Furthermore, the Exchange believes the proposed rule change furthers the objective of Section 6(b)(5) of the Act in that it permits the Exchange to address the entry of simple and complex limit orders that are priced significantly away from the market that may likely have resulted from human or operational error. By being able to quickly and efficiently address orders that likely resulted from such error, the proposed use of the limit order price parameter checks would promote a fair and orderly market. Additionally, by having the flexibility to determine the series or classes where the limit order price parameter checks would be applied (or not applied) and the levels at which the ATD settings would be applied, and to grant relief on an intra-day basis, the Exchange is able to effectively structure and efficiently react to particular option characteristics and market conditions—including (without limitation) price, volatility, and significant price movements—which contributes to its ability to maintain a fair and orderly market. Accordingly, the Exchange believes that this proposal is designed to promote just and equity principles of trade, remove impediments to, and perfect the mechanism of, a free and open market.
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. The Exchange believes that the proposed rule change will promote competition in that the routing parameters assist with the maintenance of a fair and orderly market and help to mitigate potential risks associated with orders executing at potentially erroneous prices or inconsistent with a particular investment strategy by routing certain orders based on various parameters prescribed by the Exchange or the order entry firm itself. The Exchange also views these routing parameters as important tools to assist order entry firms in their ability to efficiently manage, process and execute orders in a “hybrid” trading environment. The Exchange believes this, again, promotes fair and orderly markets, as well as assists the Exchange in its ability to effectively attract order flow and liquidity to its market, and ultimately benefits all CBOE TPHs and all investors. Thus, the Exchange does not believe the proposal creates any significant impact on competition.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change 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.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Energiz Renewable, Inc. because it has not filed any periodic reports since the period ended September 30, 2011.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Iron Eagle Group, Inc. because it has not filed any periodic reports since the period ended June 30, 2012.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of MedClean Technologies, Inc. because it has not filed any periodic reports since the period ended September 30, 2012.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EST on February 25, 2015, through 11:59 p.m. EDT on March 10, 2015.
By the Commission.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of China Yili Petroleum Company because it has not filed any periodic reports since the period ended June 30, 2012.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed company is suspended for the period from 9:30 a.m. EST on February 25, 2015, through 11:59 p.m. EDT on March 10, 2015.
By the Commission.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Defense Industries International, Inc. because it has not filed any periodic reports since the period ended September 30, 2011.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of EvCarCo, Inc. because it has not filed any periodic reports since the period ended September 30, 2012.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Island Breeze International, Inc. because it has not filed any periodic reports since the period ended September 30, 2012.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EST on February 25, 2015, through 11:59 p.m. EDT on March 10, 2015.
By the Commission.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Dittybase Technologies, Inc. because it has not filed any periodic reports since the period ended December 31, 2008.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed company is suspended for the period from 9:30 a.m. EST on February 25, 2015, through 11:59 p.m. EDT on March 10, 2015.
By the Commission.
Small Business Administration.
30-Day Notice.
The Small Business Administration (SBA) is publishing this notice to comply with requirements of the Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35), which requires agencies to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before March 30, 2015.
Comments should refer to the information collection by name and/or OMB Control Number and should be sent to:
Curtis Rich, Agency Clearance Officer, (202) 205–7030
Copies: A copy of the Form OMB 83–1, supporting statement, and other documents submitted to OMB for review may be obtained from the Agency Clearance Officer.
SBA uses this information collection for proper oversight within the scope of the Small Business Act to assess NMVC Program participants. Only the six NMVC Companies in the NMVC program will be required to submit the forms in this information collection. Although no new NMVCCs are anticipated, the information collected in the application forms in part of the contractual obligation of each NMVCC, and therefore must be used for any legal or other structural changes.
U.S. Small Business Administration.
Notice of open Federal Advisory Committee meeting.
The full committee meeting will focus on business opportunities for veterans and service disabled veterans. Several topics include government procurement and business development. The meeting is open to the public.
Wednesday, March 11, 2015 from 9 a.m. to 4 p.m.
U.S. Small Business Administration, 409 3rd Street SW., Washington, DC 20416, Eisenhower Conference Room C, located on the Concourse Level Floor.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), SBA announces the meeting of the Advisory Committee on Veterans Business Affairs. The Advisory Committee on Veterans Business Affairs serves as an independent source of advice and policy recommendation to the Administrator of the U.S. Small Business Administration. Advance notice of attendance or desire to make a presentation to the Advisory Committee is requested. Comments for the Record should be emailed to point of contact listed below prior to the meeting for inclusion in the public record. Verbal presentations will be limited to five minutes in order to meet the agenda objectives. Requests for attendance/briefing must be emailed or sent via post by March 4, 2015 to: Ms. Barbara Carson, Acting Associate Administrator, Office of Veterans Business Development, U.S. Small Business Administration, 409 3rd Street SW., Washington, DC 20416; phone: (202) 205–6773; email:
Department of State.
Notice, correction.
On August 4, 2014, notice was published on pages 45228 of the
For further information, including a list of the imported objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6467). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Department of State.
Notice.
Notice is hereby given that the Department of State (DOS) has received an application from NuStar Logistics, L.P. (“NuStar”) for a Presidential Permit authorizing the construction, connection, operation, and maintenance of pipeline facilities for the export and import of petroleum products, including liquefied petroleum gas (“LPG”) and natural gas liquids (“NGLs”). If the application is approved, the proposed facilities will transport petroleum products across the border between the NuStar terminal near Edinburg, Texas and the Petroleos Mexicanos (“PEMEX”) Burgos Gas Plant near Reynosa, Tamaulipas, Mexico, crossing under the Rio Grande River.
NuStar is a subsidiary of NuStar Energy L.P., a publicly traded master limited partnership based in San Antonio, Texas, and is one of the largest independent liquids terminal and pipeline operators in the United States. NuStar currently has 8,643 miles of pipeline and 82 terminal and storage facilities in five countries that store and distribute crude oil, refined products and specialty liquids. Its system has approximately 91 million barrels of storage capacity.
Under E.O. 13337, the Secretary of State is designated and empowered to receive all applications for Presidential Permits for the construction, connection, operation, or maintenance at the borders of the United States, of facilities for the exportation or importation of liquid petroleum, petroleum products, or other non-gaseous fuels to or from a foreign country. The Department of State has the responsibility to determine whether
The Department anticipates conducting an environmental review consistent with the National Environmental Policy Act of 1969. The Department will provide more information on the review process in a future
NuStar's application is available at:
Acting Director, Energy Resources Bureau, Energy Diplomacy (ENR/EDP/EWA), United States Department of State, 2201 C St. NW., Suite 4843, Washington, DC 20520.
Department of State.
Notice.
Notice is hereby given that the Department of State (“Department”) has received an application from NuStar Logistics, L.P. (“NuStar”) to amend a Presidential Permit published on February 17, 2006 (“2006 Presidential Permit”) to construct, connect, operate, and maintain pipeline facilities (the “Burgos Pipeline”) at the United States-Mexico border. Specifically, NuStar requests that the Department amend the 2006 Presidential Permit to: (1) Reflect NuStar's name change from Valero Logistics Operations, L.P. to NuStar Logistics, L.P., as the owner and operator of the Burgos Pipeline; and (2) to permit the import and export of a broader range of petroleum products, including liquefied petroleum gas (“LPG”), and natural gas liquids (“NGLs”). The 2006 Presidential Permit only authorized the transportation of naphtha.
NuStar is a subsidiary of NuStar Energy L.P., which is a publicly traded master limited partnership based in San Antonio, Texas and is one of the largest independent liquids terminal and pipeline operators in the United States. NuStar currently has 8,643 miles of pipeline and 82 terminal and storage facilities that store and distribute crude oil, refined products and specialty liquids. Its system has approximately 91 million barrels of storage capacity.
Under E.O. 13337, the Secretary of State is designated and empowered to receive all applications for Presidential Permits for the construction, connection, operation, or maintenance at the borders of the United States, of facilities for the exportation or importation of liquid petroleum, petroleum products, or other non-gaseous fuels to or from a foreign country. The Department of State has the responsibility to determine whether issuance of an amended Presidential Permit for operation and maintenance of a pipeline at the Burgos facility would serve the U.S. national interest.
The Department anticipates conducting an environmental review consistent with the National Environmental Policy Act of 1969. The Department will provide more information on the review process in a future
NuStar's application is available at
Acting Director, Energy Resources Bureau, Energy Diplomacy (ENR/EDP/EWA), United States Department of State, 2201 C St. NW., Suite 4843, Washington, DC 20520.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13(44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8820, Orphan Drug Credit.
Written comments should be received on or before April 28, 2015 to be assured of consideration.
Direct all written comments to Christie Preston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to R. Joseph Durbala at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622–3634, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This final rule sets forth payment parameters and provisions related to the risk adjustment, reinsurance, and risk corridors programs; cost sharing parameters and cost-sharing reductions; and user fees for Federally-facilitated Exchanges. It also finalizes additional standards for the individual market annual open enrollment period for the 2016 benefit year, essential health benefits, qualified health plans, network adequacy, quality improvement strategies, the Small Business Health Options Program, guaranteed availability, guaranteed renewability, minimum essential coverage, the rate review program, the medical loss ratio program, and other related topics.
These regulations are effective on April 28, 2015 except the amendments to §§ 156.235, 156.285(d)(1)(ii), and 158.162 are effective on January 1, 2016.
For general information: Jeff Wu, (301) 492–4305.
For matters related to guaranteed availability, guaranteed renewability, rate review, or the applicability of Title I of the Affordable Care Act in the U.S. Territories: Jacob Ackerman, (301) 492–4179.
For matters related to risk adjustment or the methodology for determining the reinsurance contribution rate and payment parameters: Kelly Horney, (410) 786–0558.
For matters related to reinsurance generally, distributed data collection good faith compliance policy, or administrative appeals: Adrianne Glasgow, (410) 786–0686.
For matters related to the definition of common ownership for purposes of reinsurance contributions: Adam Shaw, (410) 786–1019.
For matters related to risk corridors: Jaya Ghildiyal, (301) 492–5149.
For matters related to essential health benefits, network adequacy, essential community providers, or other standards for QHP issuers: Leigha Basini, (301) 492–4380.
For matters related to the qualified health plan good faith compliance policy: Cindy Yen, (301) 492–5142.
For matters related to the Small Business Health Options Program: Christelle Jang, (410) 786–8438.
For matters related to the Federally-facilitated Exchange user fee or minimum value: Krutika Amin, (301) 492–5153.
For matters related to cost-sharing reductions or the premium adjustment percentage: Pat Meisol, (410) 786–1917.
For matters related to re-enrollment, open enrollment periods, or exemptions from the individual shared responsibility payment: Christine Hammer, (301) 492–4431.
For matters related to special enrollment periods: Rachel Arguello, (301) 492–4263.
For matters related to minimum essential coverage: Cam Moultrie Clemmons, (206) 615–2338.
For matters related to quality improvement strategies: Marsha Smith, (410) 786–6614.
For matters related to the medical loss ratio program: Julie McCune, (301) 492–4196.
For matters related to meaningful access to QHP information, consumer assistance tools and programs of an Exchange, or cost-sharing reduction notices: Tricia Beckmann, (301) 492–4328.
Qualified individuals and qualified employers are now able to purchase private health insurance coverage through competitive marketplaces called Affordable Insurance Exchanges, or “Exchanges” (also called Health Insurance Marketplaces, or “Marketplaces”). Individuals who enroll in qualified health plans (QHPs) through individual market Exchanges may be eligible to receive a premium tax credit to make health insurance more affordable and for cost-sharing reductions to reduce out-of-pocket expenses for health care services. Additionally, in 2014, HHS began operationalizing the premium stabilization programs established by the Affordable Care Act. These programs—the risk adjustment, reinsurance, and risk corridors programs—are intended to mitigate the potential impact of adverse selection and stabilize the price of health insurance in the individual and small group markets. These programs, together with other reforms of the Affordable Care Act, are making high-quality health insurance affordable and accessible to millions of Americans.
We have previously outlined the major provisions and parameters related to the advance payments of the premium tax credit, cost-sharing reductions, and premium stabilization programs. This rule finalizes additional
The HHS Notice of Benefit and Payment Parameters for 2014 (78 FR 15410) (2014 Payment Notice) finalized the risk adjustment methodology that HHS will use when it operates the risk adjustment program on behalf of a State. Risk adjustment factors reflect enrollee health risk and the costs of a given disease relative to average spending. This final rule recalibrates the HHS risk adjustment models for the 2016 benefit year by using 2011, 2012, and 2013 claims data from the Truven Health Analytics 2010 MarketScan® Commercial Claims and Encounters database (MarketScan) to develop updated risk factors.
Using the same methodology as set forth in the 2014 Payment Notice and the HHS Notice of Benefit and Payment Parameters for 2015 (79 FR 13744) (2015 Payment Notice), we finalize a 2016 uniform reinsurance contribution rate of $27 annually per enrollee, and the 2016 uniform reinsurance payment parameters—a $90,000 attachment point, a $250,000 reinsurance cap, and a 50 percent coinsurance rate. We are decreasing the attachment point for the 2015 benefit year from $70,000 to $45,000, while retaining the $250,000 reinsurance cap and a 50 percent coinsurance rate. In this rule, we also finalize the definition of “common ownership” for purposes of determining whether a contributing entity uses a third-party administrator for core administrative functions. In addition, this final rule discusses the reinsurance contribution payment schedule and accompanying notifications. We also extend the good faith safe harbor for non-compliance with the HHS-operated risk adjustment and reinsurance data requirements through the 2015 calendar year.
We are finalizing a clarification and a modification to the risk corridors program. We clarify that the risk corridors transitional adjustment policy established in the 2015 Payment Notice, which makes an adjustment to a QHP issuer's risk corridors calculation based on Statewide enrollment in transitional plans, does not include in that calculation enrollment in so-called “early renewal plans” (plans that renewed before January 1, 2014 and before the end of their 12-month terms) unless and until the plans renew in 2014 and become transitional plans. Additionally, for the 2016 benefit year, we are finalizing an approach for the treatment of risk corridors collections under the policy set forth in our April 11, 2014, FAQ on Risk Corridors and Budget Neutrality,
We also finalize several provisions related to cost sharing. First, we establish the premium adjustment percentage for 2016, which is used to set the rate of increase for several parameters detailed in the Affordable Care Act, including the maximum annual limitation on cost sharing for 2016. We establish the maximum annual limitations on cost sharing for the 2016 benefit year for cost-sharing reduction plan variations. For reconciliation of 2014 cost-sharing reductions, we are finalizing and expanding our proposal to permit issuers whose plan variations meet certain criteria to estimate the portion of claims attributable to non-essential health benefits to calculate cost-sharing reductions provided.
For 2016, we finalize a Federally-facilitated Exchange (FFE) user fee rate of 3.5 percent of premium, the same rate as for 2015. This rule also finalizes provisions to enhance the transparency and effectiveness of the rate review program and standards related to minimum essential coverage, the individual market annual open enrollment period for the 2016 benefit year, and amendments to a number of Small Business Health Options Program (SHOP) provisions, including minimum participation rates. This final rule amends the medical loss ratio (MLR) provisions relating to the treatment of cost-sharing reductions and certain taxes in MLR and rebate calculations, as well as the distribution of rebates by group health plans not subject to the Employee Retirement Income Security Act of 1974 (Pub. L. 93–406) (ERISA). This final rule provides more specificity about the meaningful access requirements applicable to Exchanges, to QHP issuers, and to agents and brokers subject to § 155.220(c)(3)(i), related to access for individuals with limited English proficiency (LEP). This final rule requires issuers to provide a summary of benefits and coverage (SBC) for each plan variation of the standard QHP and to provide adequate notice to enrollees of changes in cost-sharing reduction eligibility. This final rule also includes additional quality improvement strategy reporting provisions for QHP issuers, specifies the circumstances that may lead an Exchange to suppress a QHP from being offered to new enrollees through an Exchange, and extends the good faith compliance policy for QHP issuers in the FFEs through the 2015 calendar year.
In this final rule, we are finalizing a number of standards relating to essential health benefits (EHBs), including a definition of habilitative services, coverage of pediatric services, and coverage of prescription drugs. This final rule also provides examples of discriminatory plan designs and amends requirements for essential community providers (ECPs).
The Patient Protection and Affordable Care Act (Pub. L. 111–148) was enacted on March 23, 2010. The Health Care and Education Reconciliation Act of 2010 (Pub. L. 111–152), which amended and revised several provisions of the Patient Protection and Affordable Care Act, was enacted on March 30, 2010. In this final rule, we refer to the two statutes collectively as the “Affordable Care Act.”
Subtitles A and C of title I of the Affordable Care Act reorganized, amended, and added to the provisions of part A of title XXVII of the Public Health Service Act (PHS Act) relating to group health plans and health insurance issuers in the group and individual markets.
Section 2701 of the PHS Act, as added by the Affordable Care Act, restricts the variation in premium rates that may be charged by a health insurance issuer for non-grandfathered health insurance coverage in the individual or small group market to certain specified factors. The factors are: Family size, rating area, age, and tobacco use (within specified limits).
Section 2701 of the PHS Act operates in coordination with section 1312(c) of the Affordable Care Act. Section 1312(c) of the Affordable Care Act generally requires a health insurance issuer to consider all enrollees in all health plans (except for grandfathered health plans) offered by such issuer to be members of a single risk pool for each of its individual and small group markets. States have the option to merge the individual market and small group market risk pools under section 1312(c)(3) of the Affordable Care Act.
Section 2702 of the PHS Act, as added by the Affordable Care Act, requires health insurance issuers that offer health insurance coverage in the group or individual market in a State to offer coverage to and accept every employer
Section 2703 of the PHS Act, as added by the Affordable Care Act, requires health insurance issuers that offer health insurance coverage in the group or individual market to renew or continue in force such coverage at the option of the plan sponsor or individual unless an exception applies.
Section 2718 of the PHS Act, as added by the Affordable Care Act, generally requires health insurance issuers to submit an annual MLR report to HHS and provide rebates to enrollees if they do not achieve specified MLR thresholds.
Section 2794 of the PHS Act, as added by the Affordable Care Act, directs the Secretary of HHS (the Secretary), in conjunction with the States, to establish a process for the annual review of “unreasonable increases in premiums for health insurance coverage.”
Section 1302 of the Affordable Care Act provides for the establishment of an essential health benefits (EHB) package that includes coverage of EHB (as defined by the Secretary) and cost-sharing limits, and meets statutorily defined actuarial value (AV) requirements. The law directs that EHBs be equal in scope to the benefits covered by a typical employer plan and that they cover at least the following 10 general categories: Ambulatory patient services; emergency services; hospitalization; maternity and newborn care; mental health and substance use disorder services, including behavioral health treatment; prescription drugs; rehabilitative and habilitative services and devices; laboratory services; preventive and wellness services and chronic disease management; and pediatric services, including oral and vision care.
Sections 1302(b)(4)(A) through (D) establish that the Secretary must define EHB in a manner that: (1) Reflects appropriate balance among the 10 categories; (2) is not designed in such a way as to discriminate based on age, disability, or expected length of life; (3) takes into account the health care needs of diverse segments of the population; and (4) does not allow denials of EHBs based on age, life expectancy, disability, degree of medical dependency, or quality of life.
Section 1302(d) of the Affordable Care Act describes the various levels of coverage based on AV. Consistent with section 1302(d)(2)(A) of the Affordable Care Act, AV is calculated based on the provision of EHB to a standard population. Section 1302(d)(3) of the Affordable Care Act directs the Secretary to develop guidelines that allow for
Section 1311(b)(1)(B) of the Affordable Care Act directs the SHOP to assist qualified small employers in facilitating the enrollment of their employees in QHPs offered in the small group market. Sections 1312(f)(1) and (2) of the Affordable Care Act define qualified individuals and qualified employers. Under section 1312(f)(2)(B) of the Affordable Care Act, beginning in 2017, States will have the option to allow issuers to offer QHPs in the large group market through the SHOP.
Section 1311(c)(1)(B) of the Affordable Care Act requires the Secretary to establish minimum criteria for provider network adequacy that a health plan must meet to be certified as a QHP. Section 1311(c)(1)(E) of the Affordable Care Act specifies that, to be certified as a QHP participating in Exchanges, each health plan must implement a quality improvement strategy (QIS), which is described in section 1311(g)(1) of the Affordable Care Act.
Section 1311(c)(5) of the Affordable Care Act requires the Secretary to continue to operate, maintain, and update the Internet portal developed under section 1103 of the Affordable Care Act to provide information to consumers and small businesses on affordable health insurance coverage options.
Section 1311(c)(6)(B) of the Affordable Care Act states that the Secretary is to set annual open enrollment periods for Exchanges for calendar years after the initial enrollment period.
Section 1301(a)(1)(B) of the Affordable Care Act directs all issuers of QHPs to cover the EHB package described in section 1302(a) of the Affordable Care Act, including the services described in section 1302(b) of the Affordable Care Act, to adhere to the cost-sharing limits described in section 1302(c) of the Affordable Care Act, and to meet the AV levels established in section 1302(d) of the Affordable Care Act. Section 2707(a) of the PHS Act, which is effective for plan or policy years beginning on or after January 1, 2014, extends the coverage of the EHB package to non-grandfathered individual and small group coverage, irrespective of whether such coverage is offered through an Exchange. In addition, section 2707(b) of the PHS Act directs non-grandfathered group health plans to ensure that cost sharing under the plan does not exceed the limitations described in sections 1302(c)(1) and (2) of the Affordable Care Act.
Sections 1313 and 1321 of the Affordable Care Act provide the Secretary with the authority to oversee the financial integrity of State Exchanges, their compliance with HHS standards, and the efficient and non-discriminatory administration of State Exchange activities. Section 1321 of the Affordable Care Act provides for State flexibility in the operation and enforcement of Exchanges and related requirements.
Section 1321(a) of the Affordable Care Act provides the Secretary with broad authority to establish standards and regulations to implement statutory requirements related to Exchanges, QHPs, and other components of title I of the Affordable Care Act. Under the authority established in section 1321(a)(1) of the Affordable Care Act, the Secretary promulgated the regulations at § 155.205(d) and (e). Section 155.205 authorizes Exchanges to perform certain consumer service functions. Section 155.205(d) provides that each Exchange must conduct consumer assistance activities, including the Navigator program described in § 155.210, and § 155.205(e) provides that each Exchange must conduct outreach and education activities to inform consumers about the Exchange and insurance affordability programs to encourage participation. Sections 155.205(d) and (e) also allow for the establishment of a non-Navigator consumer assistance program. Section 155.215 establishes standards for Navigators and non-Navigator assistance personnel in FFEs and for non-Navigator assistance personnel that are
When operating an FFE under section 1321(c)(1) of the Affordable Care Act, HHS has the authority under sections 1321(c)(1) and 1311(d)(5)(A) of the Affordable Care Act to collect and spend user fees. In addition, 31 U.S.C. 9701 permits a Federal agency to establish a charge for a service provided by the agency. Office of Management and Budget (OMB) Circular No. A–25 Revised establishes Federal policy regarding user fees and specifies that a user charge will be assessed against each identifiable recipient for special benefits derived from Federal activities beyond those received by the general public.
Section 1321(c)(2) of the Affordable Care Act authorizes the Secretary to enforce the Exchange standards using civil money penalties (CMPs) on the same basis as detailed in section 2723(b) of the PHS Act. Section 2723(b) of the PHS Act authorizes the Secretary to impose CMPs as a means of enforcing the individual and group market reforms contained in Part A of title XXVII of the PHS Act when a State fails to substantially enforce these provisions.
Section 1321(d) of the Affordable Care Act provides that nothing in title I of the Affordable Care Act should be construed to preempt any State law that does not prevent the application of title I of the Affordable Care Act. Section 1311(k) of the Affordable Care Act specifies that Exchanges may not establish rules that conflict with or prevent the application of regulations issued by the Secretary.
Section 1341 of the Affordable Care Act provides for the establishment of a transitional reinsurance program in each State to help pay the cost of treating high-cost enrollees in the individual market in the 2014 through 2016 benefit years. Section 1342 of the Affordable Care Act directs the Secretary to establish a temporary risk corridors program that protects against inaccurate rate setting in the 2014 through 2016 benefit years. Section 1343 of the Affordable Care Act establishes a permanent risk adjustment program that is intended to provide increased payments to health insurance issuers that attract higher-risk populations, such as those with chronic conditions, funded by payments from those that attract lower-risk populations, thereby reducing incentives for issuers to avoid higher-risk enrollees.
Sections 1402 and 1412 of the Affordable Care Act provide for reductions in cost sharing for EHBs for qualified low- and moderate-income enrollees in silver level health plans offered through the individual market Exchanges. These sections also provide for reductions in cost sharing for Indians enrolled in Exchange plans at any metal level.
Section 5000A of the Internal Revenue Code (the Code), as added by section 1501(b) of the Affordable Care Act, requires an individual to have minimum essential coverage for each month, qualify for an exemption, or make a shared responsibility payment with his or her Federal income tax return. Section 5000A(f) of the Code defines minimum essential coverage as any of the following: (1) Coverage under a specified government sponsored program; (2) coverage under an eligible employer-sponsored plan; (3) coverage under a health plan offered in the individual market within a State; or (4) coverage under a grandfathered health plan. Section 5000A(f)(1)(E) of the Code authorizes the Secretary, in coordination with the Secretary of the Treasury, to designate other health benefits coverage as minimum essential coverage.
In the July 15, 2011
In the December 2, 2013
In the June 19, 2013
We published a request for comment relating to Exchanges in the August 3, 2010
We established standards for the administration and payment of cost-sharing reductions and the SHOP in the 2014 Payment Notice and in the Amendments to the HHS Notice of Benefit and Payment Parameters for 2014 interim final rule, published in the March 11, 2013
In a final rule published in the July 17, 2013
We initially established requirements relating to EHBs and AVs in the Standards Related to Essential Health Benefits, Actuarial Value, and Accreditation Final Rule, which was
A proposed rule relating to the Health Insurance Market Rules was published in the November 26, 2012
A proposed rule relating to Exchanges and Insurance Market Standards for 2015 and Beyond was published in the March 21, 2014
We published a proposed rule to establish the rate review program in the December 23, 2010
We published a request for comment on section 2718 of the PHS Act in the April 14, 2010
HHS has consulted with stakeholders on policies related to the operation of Exchanges, including the SHOP and the premium stabilization programs. HHS has held a number of listening sessions with consumers, providers, employers, health plans, the actuarial community, and State representatives to gather public input. HHS consulted with stakeholders through regular meetings with the National Association of Insurance Commissioners (NAIC), regular contact with States through the Exchange Establishment grant and Exchange Blueprint approval processes, and meetings with Tribal leaders and representatives, health insurance issuers, trade groups, consumer advocates, employers, and other interested parties. We considered all of the public input as we developed the policies in this final rule.
In the November 26, 2014
In this final rule, we provide a summary of each proposed provision, a summary of the public comments received and our responses to them, and the provisions we are finalizing.
Section 144.103 sets forth definitions of terms that are used throughout parts 146 through 150. In the proposed rule, we proposed to amend the definitions of “plan” and “State.”
We proposed to make the definition of “plan” more specific by clarifying that the term means the pairing of the health insurance coverage benefits under a “product” with a particular cost-sharing structure, provider network, and service
We noted that issuers can modify the health insurance coverage for a product upon coverage renewal and sought comment on standards for determining when a plan that has been modified should be considered to be the “same plan” for purposes of rate review, plan identification in the Health Insurance Oversight System (HIOS), and other programs. In particular, we sought comment on whether these standards should be similar to those applicable at the product level under the uniform modification provision at § 147.106(e).
We are finalizing the amendments to the definition of “plan” as proposed. We are also specifying standards for determining when a plan that has been modified will be considered to be the “same plan.”
The final rule adopts the definition of “plan” as proposed. We believe many issuers already distinguish their plans according to these characteristics, and we do not anticipate significant downstream issues as a result of these clarifications. Nevertheless, we will work with States and issuers to make any necessary adjustments to plan identifiers in Federal systems.
The final rule provides that a plan that has been modified at the time of coverage renewal in accordance with § 147.106 will be considered to be the same plan if it meets the following conditions:
• Has the same cost-sharing structure as before the modification, or any variation in cost sharing is solely related to changes in cost or utilization of medical care (that is, medical inflation or demand for services based on inflationary increases in the cost of medical care), or is to maintain the same metal tier level described in sections 1302(d) and (e) of the Affordable Care Act (that is, bronze, silver, gold, platinum, or catastrophic).
• Continues to cover a majority of the same service area.
• Continues to cover a majority of the same provider network (as applicable).
We recognize that a plan's provider network may change throughout the plan year. Therefore, for purposes of determining whether a plan maintains a majority of the same provider network, the plan's provider network on the first day of the plan year is compared with the plan's provider network on the first day of the preceding plan year. If at least 50 percent of the contracted providers at the beginning of the plan year are still contracted providers at the beginning of the next plan year, the plan will be considered to have maintained a majority of the same provider network.
Furthermore, similar to the standard for uniform modification of a product, a plan also will not fail to be treated as the same plan to the extent the changes are made uniformly and solely pursuant to applicable Federal or State requirements, provided that the changes are made within a reasonable time period after the imposition or modification of the Federal or State requirement and are directly related to the imposition or modification of the Federal or State requirement.
The cost-sharing provision under this final rule is identical to the cost-sharing provision under the uniform modification standard. In the 2015 Market Standards Rule (79 FR 30251), which established criteria for uniform modification, we stated that the cost-sharing provision is intended to establish basic parameters around cost-sharing modifications to protect consumers from extreme changes in deductibles, copayments, and coinsurance, while preserving issuer flexibility to make reasonable and customary adjustments from year to year.
Finally, as with the uniform modification provision, States have flexibility to broaden the definition of “same plan.” States may, at their option, permit greater changes to cost-sharing structure, or designate a lower threshold than the “majority” standard in this final rule for changes in provider network and service area, to constitute the same plan. We intend to monitor issues around compliance with the
We proposed to amend the definition of “State” to exclude application of the Affordable Care Act market reforms under part 147 to issuers in the U.S. Territories of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands. The change codifies HHS's interpretation, outlined in letters to the Territories on July 16, 2014, that the new provisions of the PHS Act enacted in title I of the Affordable Care Act are appropriately governed by the definition of “State” set forth in that title, and therefore do not apply to group or individual health insurance issuers in the Territories.
As explained in the July 16, 2014 letters and reiterated in the preamble to the proposed rule (79 FR 70681), this interpretation applies only to health insurance that is governed by the PHS Act. It does not affect the PHS Act requirements that were enacted in the Affordable Care Act and incorporated into ERISA and the Code and apply to group health plans (whether insured or self-insured), because such applicability does not rely upon the term “State” as it is defined in either the PHS Act or Affordable Care Act. It also does not affect the PHS Act requirements that were enacted in the Affordable Care Act and apply to non-Federal governmental plans. As a practical matter, therefore, PHS Act, ERISA, and Code requirements applicable to group health plans continue to apply to such coverage, and issuers selling policies to both private sector and public sector employers in the Territories should ensure their products comply with the relevant Affordable Care Act amendments to the PHS Act applicable to group health plans since their customers—the group health plans—are subject to those provisions. These include the prohibition on lifetime and annual limits (section 2711 of the PHS Act), the prohibition on rescissions (section 2712 of the PHS Act), coverage of preventive health services (section 2713 of the PHS Act), and the revised internal and external appeals process (section 2719 of the PHS Act).
We are finalizing these amendments as proposed.
We proposed several modifications to the guaranteed availability requirements under § 147.104. First, we proposed to remove regulation text in § 147.104(b)(2) establishing a special enrollment period (also referred to as a “limited open enrollment period”) for individuals enrolled in non-calendar year individual market plans, because the requirement is incorporated through cross-reference in the same paragraph to the Exchange rules at § 155.420(d)(1)(ii).
Second, we proposed to add new paragraph § 147.104(f), which would move and recodify, with minor modifications for clarity, the requirement under existing § 147.104(b)(2) for non-grandfathered individual and merged market plans to be offered on a calendar year basis.
Third, we proposed to amend § 147.104(b)(4) by adding a cross-reference to the advance availability of special enrollment periods under § 155.420(c)(2). This would align with the Exchange regulations and allow individuals to make a plan selection 60 days before and after certain triggering events when enrolling inside or outside the individual market Exchanges.
Finally, we proposed amending § 147.104(b)(1)(i)(C) to update the citation to the SHOP regulations to conform with changes made in this rulemaking. The cross-reference is changed from § 155.725(a)(2) to § 155.725.
We are finalizing these amendments as proposed.
Consistent with previous guidance, we proposed that an issuer will not satisfy the requirements for product discontinuation under the guaranteed renewability regulations at § 146.152(c)(2), § 147.106(c)(2), or § 148.122(d)(2) if the issuer automatically enrolls a plan sponsor or individual (as applicable) into a product of another licensed health insurance issuer.
We stated that allowing an issuer to transfer blocks of business to another issuer could create opportunities for risk segmentation, but also recognized that regulating these matters could have implications for certain corporate reorganization practices. We sought comment on how to interpret the guaranteed renewability provisions in the context of various corporate transactions involving a change of ownership, such as acquisitions, mergers, or other corporate transactions; how common such transactions are and how they are typically structured; whether auto-enrollment should be allowed into a product of the post-transaction issuer; how the market reforms such as the single risk pool provision should be applied; and what protections should be provided to consumers when their product is transferred.
Because ownership transfers have implications for the operational processes of HHS-administered programs, such as advance payments of the premium tax credit, cost-sharing reduction payments, FFE user fees, and the premium stabilization programs, we proposed a notification requirement on
We are finalizing the notification requirement in cases of changes of ownership as recognized by the State in which the issuer offers coverage. In light of the comments discussed below, we are not codifying the provision prohibiting an issuer from automatically enrolling plan sponsors or individuals (as applicable) into a product of another licensed health insurance issuer. We intend to consult with the NAIC and other stakeholders before releasing further guidance on this issue.
We also recognize that FFE issuers are subject to a notification requirement under § 156.330; however, changes of ownership may have operational implications for HHS-administered programs beyond the FFEs. The HHS-administered programs described above affect QHP issuers in both the FFEs and State-based Exchanges, as well as issuers offering plans outside of Exchanges. To work closely with issuers to anticipate and resolve potential issues arising from such transactions, we are finalizing the notice requirement for an issuer of a QHP, a plan otherwise subject to risk corridors, a risk adjustment covered plan, or a reinsurance-eligible plan, as proposed. We intend to limit the information collected to those elements necessary for HHS and issuers to determine how the change of ownership affects operations of HHS-administered programs. These elements include the legal name, HIOS plan identifier, tax identification number of the original and post-transaction issuers, the effective date of the change of ownership, and the summary description of transaction. Depending on the nature of the transaction, additional information may be necessary to ensure smooth operations of affected programs. We anticipate addressing the need for additional information on a case-by-case basis, through discussion with affected issuers, with the participation of affected issuers.
Finally, we are sensitive to the fluid nature of change of ownership transactions, but believe that our proposed dates for notification accommodate most transactional timelines. In addition, the information we intend to require from issuers is limited in scope and should not substantially burden either issuers or HHS, even if the transaction is not ultimately consummated. To ensure continuity of operations, particularly for administration of monthly payments and charges for advance payments of the premium tax credit and cost-sharing reductions, it is in the interest of both issuers and HHS to coordinate prior to the effective date of the transaction.
In § 153.100(c), we established a deadline of March 1 of the calendar year prior to the applicable benefit year for a State to publish a State notice of benefit and payment parameters if the State is required to do so under § 153.100(a) or (b)—that is, if the State is operating a risk adjustment program, or if the State is establishing a reinsurance program and wishes to modify the data requirements for issuers to receive reinsurance payments from those specified in the HHS notice of benefit and payment parameters for the benefit year, wishes to collect additional reinsurance contributions or use
We are finalizing this modification as proposed.
The risk adjustment program is a permanent program created by section 1343 of the Affordable Care Act that transfers funds from lower risk, non-grandfathered plans to higher risk, non-grandfathered plans in the individual and small group markets, inside and outside the Exchanges, to balance risk and maintain market stability. In subparts D and G of the Premium Stabilization Rule, we established standards for the administration of the risk adjustment program. A State that is approved or conditionally approved by the Secretary to operate an Exchange may establish a risk adjustment program, or have HHS do so on its behalf.
If a State is not approved to operate or chooses to forgo operating its own risk adjustment program, HHS will operate risk adjustment on the State's behalf. As described in the 2014 Payment Notice, HHS's operation of risk adjustment on behalf of States is funded through a risk adjustment user fee. Section 153.610(f)(2) provides that an issuer of a risk adjustment covered plan must remit a user fee to HHS equal to the product of its monthly enrollment in the plan and the per-enrollee-per-month risk adjustment user fee specified in the annual HHS notice of benefit and payment parameters for the applicable benefit year.
OMB Circular No. A–25R establishes Federal policy regarding user fees, and specifies that a user charge will be assessed against each identifiable recipient for special benefits derived from Federal activities beyond those received by the general public. The risk adjustment program will provide special benefits as defined in section 6(a)(1)(b) of Circular No. A–25R to issuers of risk adjustment covered plans because it will mitigate the financial instability associated with potential adverse risk selection. The risk adjustment program also will contribute to consumer confidence in the health insurance industry by helping to stabilize premiums across the individual and small group health insurance markets.
In the 2015 Payment Notice, we estimated Federal administrative expenses of operating the risk adjustment program to be $0.96 per-enrollee-per-year, based on our estimated contract costs for risk adjustment operations. For the 2016 benefit year, we proposed to use the same methodology to estimate our administrative expenses to operate the program. These contracts cover development of the risk adjustment model and methodology, collections, payments, account management, data collection, data validation, program integrity and audit functions, operational and fraud analytics, stakeholder training, and operational support. To calculate the user fee, we divided HHS's projected total costs for administering the risk adjustment programs on behalf of States by the expected number of enrollees in risk adjustment covered plans in HHS-operated risk adjustment programs for the benefit year (other than plans not subject to market reforms and student health plans, which are not subject to payments and charges under the risk adjustment methodology HHS uses when it operates risk adjustment on behalf of a State).
We estimated that the total cost for HHS to operate the risk adjustment program on behalf of States for 2016 will be approximately $50 million, and that the risk adjustment user fee would be $1.75 per enrollee per year. The increased risk adjustment user fee for 2016 is the result of the increased contract costs to support the risk adjustment data validation process when HHS operates risk adjustment, which HHS will administer for the first time in 2016. We are finalizing the proposed methodology for benefit year 2016 and are finalizing a per capita risk adjustment user fee of $1.75 per enrollee per year, which we will apply as a per-enrollee-per-month risk adjustment user fee of $0.15.
The HHS risk adjustment model predicts plan liability for an enrollee based on that person's age, sex, and diagnoses (risk factors), producing a risk score. The HHS risk adjustment methodology utilizes separate models for adults, children, and infants to account for cost differences in each of these age groups. In each of the adult and child models, the relative costs assigned to an individual's age, sex, and diagnoses are added together to produce a risk score. Infant risk scores are determined by inclusion in one of 25 mutually exclusive groups based on the infant's maturity and the severity of his or her diagnoses. If applicable, the risk score is multiplied by a cost-sharing reduction adjustment.
The enrollment-weighted average risk score of all enrollees in a particular risk adjustment-covered plan, or the plan liability risk score, within a geographic rating area is one input into the
We proposed to continue to use the same risk adjustment methodology finalized in the 2014 Payment Notice, with changes to reflect more current data, as described below. As we stated above, in the adult and child models, enrollee health risks are estimated using the HHS risk adjustment methodology, which assigns a set of additive factors that reflect the relative costs of demographics and diagnoses. Risk adjustment factors are developed using claims data and reflect the costs of a given disease relative to average spending. The longer the lag in data used to develop the risk factors, the greater the potential that the costs of treating one disease versus another have changed in a manner not fully reflected in the risk factors.
To provide risk adjustment factors that best reflect more recent treatment patterns and costs, we proposed to recalibrate the HHS risk adjustment models for 2016 by using more recent claims data to develop updated risk factors. The risk factors published in the 2014 Payment Notice for use in 2014 and 2015 were developed using the Truven Health Analytics 2010 MarketScan® Commercial Claims and Encounters database (MarketScan); we proposed to update the risk factors in the HHS risk adjustment models using 2010, 2011, and 2012 MarketScan data. We also proposed that if 2013 MarketScan data becomes available after the publication of the proposed rule, we would update the risk factors in the HHS risk adjustment model using the 3 most recent years of data available—MarketScan 2011, 2012, and 2013 data. These updated risk factors would be published and finalized in this final rule.
We proposed to implement the recalibrated risk adjustment factors in 2016 to provide sufficient time for issuers to account for risk adjustment model changes. However, we also sought comment on making the recalibrated HHS risk adjustment models effective beginning for the 2015 benefit year instead of the 2016 benefit year. We sought comment on this approach, including whether we should update risk factors based on 2013 MarketScan data when it becomes available after publication of the proposed rule, and whether the updated risk factors should be implemented for 2015 or 2016. We are finalizing the HHS risk adjustment recalibration using 2011, 2012, and 2013 MarketScan data to develop final risk adjustment factors to be implemented in the 2016 benefit year. We are making no changes for the 2015 benefit year.
We believe that using multiple years of data will promote market stability and minimize volatility in coefficients for certain rare diagnoses. In using multiple years of data to recalibrate the
We made minor refinements to the underlying MarketScan recalibration samples from which the risk adjustment factors are derived. In particular, we changed our treatment of Age 0 infants without birth hierarchical condition categories (HCCs). There may be cases in which there is no separate infant birth claim from which to gather diagnoses. For example, mother and infant claims may be bundled such that infant diagnoses appear on the mother's record. Where newborn diagnoses appear on the mother's claims, HHS has issued operational guidance on how best to associate those codes with the appropriate infant.
However, we proposed a change in how we categorize age 0 infants who do not have birth codes. We previously stated in the operational guidance referenced above that infants without birth codes would be assigned an “Age 0, Term” factor in risk adjustment operations. We did so under the assumption that issuers paid the birth costs, yet the birth HCCs were missing (perhaps because claims were bundled with the mother's, whose claims were excluded). Upon further analysis of age 0 and age 1 claims, we found that age 0 infants without birth HCCs had costs more similar to age 1 infants by severity level. We believe that these infants should be assigned to age 1 in situations where the issuer did not pay the birth costs during the plan year. For many age 0 infants without birth HCCs, the birth could have occurred in the prior year or was paid for by a different issuer. We proposed that age 0 infants without birth HCCs be assigned to “Age 1” by severity level. We have made this change in the recalibration samples that we are using to calculate risk factors for proposed implementation in the 2016 benefit year. We also proposed to make this change in the operation of the risk adjustment methodology for the year in which we would implement the recalibrated risk adjustment factors. We are finalizing our approach as proposed, for implementation in the 2016 benefit year with the recalibrated risk adjustment models.
The HHS risk adjustment models predict annualized plan liability expenditures using age and sex categories and the HHS HCCs included in the HHS risk adjustment model. Dollar coefficients were estimated for these factors using weighted least squares regression, where the weight was the fraction of the year enrolled.
We are including the same HCCs that were included in the original risk adjustment calibration in the 2014 Payment Notice. For each model, the factors are the statistical regression dollar values for each HCC in the model divided by a weighted average plan liability for the full modeling sample. The factors represent the predicted relative incremental expenditures for each HCC. The proposed factors resulting from the averaged factors from the 2011, 2012, and 2013 separately solved models are shown in the tables below. For a given enrollee, the sums of the factors for the enrollee's HCCs are the total relative predicted expenditures for that enrollee. Table 1 contains the factors for each adult model, including the interactions. Table 3 contains the factors for each child model. Table 4 contains the factors for each infant model.
We proposed to continue to include an adjustment for the receipt of cost-sharing reductions in the model, and proposed to continue not to adjust for receipt of reinsurance payments in the model. We have updated the adjustments to the HHS risk adjustment models for individuals who receive cost-sharing reductions to be consistent with the cost-sharing reductions advance payment formula finalized in the 2015 Payment Notice, for implementation in 2015 benefit year risk adjustment. The silver plan variation and zero cost sharing factors are unchanged from those finalized in the 2014 Payment Notice. The
To evaluate model performance, we examined R-squared statistics and predictive ratios. The R-squared statistic, which calculates the percentage of individual variation explained by a model, measures the predictive accuracy of the model overall. The predictive ratios measure the predictive accuracy of a model for different validation groups or subpopulations. The predictive ratio for each of the HHS risk adjustment models is the ratio of the weighted mean predicted plan liability for the model sample population to the weighted mean actual plan liability for the model sample population. The predictive ratio represents how well the model does on average at predicting plan liability for that subpopulation. A subpopulation that is predicted perfectly would have a predictive ratio of 1.0. For each of the HHS risk adjustment models, the R-squared statistic and the predictive ratio are in the range of published estimates for concurrent risk adjustment models.
We do not propose to alter our payment transfer methodology. Plan average risk scores would be calculated as the member month-weighted average of individual enrollee risk scores. We defined the calculation of plan average actuarial risk and the calculation of payments and charges in the Premium Stabilization Rule. In the 2014 Payment Notice, we combined those concepts into a risk adjustment payment transfer formula. Risk adjustment transfers (payments and charges) will be calculated following the completion of issuer risk adjustment data reporting. The payment transfer formula includes a set of cost adjustment terms that require transfers to be calculated at the geographic rating area level for each plan (that is, HHS will calculate two separate transfer amounts for a plan that operates in two rating areas).
The payment transfer formula is designed to provide a per member per month (PMPM) transfer amount. The PMPM transfer amount derived from the payment transfer formula will be multiplied by each plan's total member months for the benefit year to determine the total payment due or charge owed by the issuer for that plan in a rating area.
Though we did not propose to change the payment transfer formula from what was finalized in the 2014 Payment Notice (78 FR 15430–15434), we believe it useful to republish the formula in its entirety, since we are finalizing recalibrated HHS risk adjustment models. Transfers (payments and charges) will be calculated as the difference between the plan premium estimate reflecting risk selection and the plan premium estimate not reflecting risk selection. As finalized in the 2014 Payment Notice, the HHS risk adjustment payment transfer formula is:
The difference between the two premium estimates in the payment transfer formula determines whether a plan pays a risk transfer charge or receives a risk transfer payment. Note that the value of the plan average risk score by itself does not determine whether a plan would be assessed a charge or receive a payment—even if the risk score is greater than 1.0, it is possible that the plan would be assessed a charge if the premium compensation that the plan may receive through its rating practices (as measured through the allowable rating factor) exceeds the plan's predicted liability associated with risk selection. Risk adjustment transfers are calculated at the risk pool level and catastrophic plans are treated as a separate risk pool for purposes of risk adjustment.
In the 2014 Payment Notice, we finalized the methodology that HHS will use when operating a risk adjustment program on behalf of a State. In the second Program Integrity Rule (78 FR 65046), we clarified the modification to the transfer formula to accommodate community rated States that utilize family tiering rating factors. We further clarified this formula in the proposed rule to ensure that the allowable rating factor (ARF) is appropriately applied in the transfer formula in community rated States for 2014 risk adjustment. In the second Program Integrity Rule, we stated that the ARF formula should be modified so that the numerator is a summation over all subscribers of the product of the family tiering factor and the subscriber member months, and the denominator the sum of billable member months. However, we do not believe the revised formula accurately reflects that description, as it does not distinguish between subscriber months (months attributed to the sole subscriber) and billable member months (months attributed to all allowable members of the family factored into the community rating). The calculation of ARF for family tiering States that was published in the second Program Integrity Rule that would be calculated at the level of the subscriber, was as follows:
While the preamble description in the second Program Integrity Rule is correct, as we noted, the formula itself is incorrect in that it does not distinguish between billable member months and subscriber months by using the same variable for both. Therefore, we proposed a technical change to the ARF calculation for family tiering States, as follows:
The numerator is summed over the product of the allowable rating factor and the number of subscriber months (that is, months of family subscription), and the denominator is the sum over all billable members. Each family unit covered under a single contract is considered a single “subscriber.” Therefore, a family of four that purchases coverage for a period from January through December will accumulate 12 subscriber months (
For 2016, we are recertifying the alternate risk adjustment methodology submitted by Massachusetts and certified in the 2014 Payment Notice (78 FR 15439–15452).
The Affordable Care Act directs that a transitional reinsurance program be established in each State to help stabilize premiums for coverage in the individual market from 2014 through 2016. In the 2014 Payment Notice, we expanded on the standards set forth in subparts C and E of the Premium Stabilization Rule and established the reinsurance payment parameters and uniform reinsurance contribution rate for the 2014 benefit year. In the 2015 Payment Notice, we established the reinsurance payment parameters and uniform reinsurance contribution rate for the 2015 benefit year and certain oversight provisions related to the operation of the reinsurance program.
The definition of a “contributing entity” at § 153.20 provides that for the 2015 and 2016 benefit years, a contributing entity is (i) a health insurance issuer or (ii) a self-insured group health plan, including a group health plan that is partially self-insured and partially insured, where the health insurance coverage does not constitute major medical coverage, that uses a TPA in connection with claims processing or adjudication, including the management of internal appeals, or plan enrollment for services other than for pharmacy benefits or excepted benefits within the meaning of section 2791(c) of the PHS Act. Solely for purposes of the reinsurance program, a self-insured group health plan will not be deemed to use a TPA if it uses an unrelated third party: (a) To obtain a provider network and related claims repricing services; or (b) for up to 5 percent of claims processing or adjudication or plan enrollment, based on either the number of transactions processed by the third party, or the value of the claims processing and adjudication and plan enrollment services provided by the third party.
The definition of a “contributing entity” does not include qualifying self-administered, self-insured group health plans for the purpose of the requirement to make reinsurance contributions for the 2015 and 2016 benefit years. In the preamble to the 2015 Payment Notice, we indicated that we consider a TPA to be, with respect to a self-insured group health plan, an entity that is not under common ownership or control with the self-insured group health plan or its plan sponsor that provides the specified core administrative services (79 FR 13773).
We received a number of inquiries seeking clarification on how to determine common ownership or control for purposes of the definition of a “contributing entity” in § 153.20. In response, in the proposed rule, we proposed to clarify that principles similar to the controlled group rules of section 414(b) and (c) of the Code be used to determine whether the TPA is under common ownership or control with the self-insured group health plan or the plan sponsor, because these rules are familiar to many stakeholders. We also noted that similar ownership or control rules apply for other purposes under the Affordable Care Act, such as the shared responsibility payment for applicable large employers that do not offer full-time employees and dependents the opportunity to enroll in minimum essential coverage, and the annual fee on health insurance issuers under section 9010 of the Affordable Care Act.
We sought comment on this proposal and on alternative definitions that would be familiar to stakeholders for determining whether a TPA is under common ownership or control with the self-insured group health plan or its sponsor for purposes of the definition of “contributing entity” at § 153.20.
We finalize this proposal with one clarification—we are limiting the incorporation of the section 414 rules to sections 414(b) and (c).
Section 1341(b)(3)(B) of the Affordable Care Act and the implementing regulations at § 153.400(a)(1) require contributing entities to make reinsurance contributions for major medical coverage that is considered to be part of a commercial book of business. We define major medical coverage at § 153.20 as coverage meeting minimum value (MV) or that is subject to the actuarial value (AV) requirements. In light of this definition, stakeholders have asked whether plans that do not offer inpatient hospital coverage, but that are considered to offer MV for purposes of the employer shared responsibility payment because they were in place before HHS and IRS guidance
Section 1341(b)(3)(B) of the Affordable Care Act and the implementing regulations at § 153.400(a)(1) require contributing entities to make reinsurance contributions for major medical coverage that is considered to be part of a commercial book of business. In the 2014 Payment Notice (78 FR 15457), we stated that we interpret this language to exclude expatriate health coverage, as defined by the Secretary, and we codified this approach in regulatory text at § 153.400(a)(1)(iii). In the March 8, 2013, FAQs about the Affordable Care Act Implementation Part XIII,
We proposed to amend § 153.400(a)(1)(iii), which currently exempts expatriate health coverage, as defined by the Secretary, from reinsurance contributions, so that it also exempts, for the 2015 and 2016 benefit years only, any self-insured group health plan for which enrollment is limited to participants, and any covered dependents, who reside outside of their home country for at least 6 months of the plan year. This definition would be applicable solely to the transitional reinsurance program.
We received one comment in support of this proposal, which also stated that the expatriate plan requirements should be revised to reflect the effect of the recently enacted Expatriate Health Coverage Clarification Act of 2014, as part of the Consolidated and Further Continuing Appropriations Act, 2015, H.R. 83 (2014 Expatriate Health Coverage Act). Since the expatriate plan requirements (and accompanying definitions) enacted in the 2014 Expatriate Health Coverage Act only apply to expatriate plans issued or renewed on or after July 1, 2015, we are finalizing the amendment as proposed, and we intend to undertake future rulemaking in conjunction with the Departments of the Treasury and Labor governing the application of the Affordable Care Act to expatriate plans to harmonize our regulations (as may be necessary) with the 2014 Expatriate Health Coverage Act. We do not anticipate that this future rulemaking will affect the availability of the exemption for the expatriate plans described in this final rule.
Consistent with the determination of debt provision set forth in § 156.1215(c), we proposed to clarify in § 153.400(c) that any amount owed to the Federal government by a self-insured group health plan (including a group health plan that is partially self-insured and partially insured, where the health insurance coverage does not constitute major medical coverage), including reinsurance contributions that are not remitted in full in a timely manner, would be a determination of a debt.
We received no comments on this proposal and are finalizing this provision as proposed.
On May 22, 2014, we released an FAQ about the reinsurance contribution submission process.
We proposed to amend § 153.405(b), which requires a contributing entity to submit its annual enrollment count of the number of covered lives of reinsurance contribution enrollees for the applicable benefit year to HHS no later than November 15 of benefit year 2014, 2015, or 2016. When November 15 does not fall on a business day, we proposed that a contributing entity submit its annual enrollment count of the number of covered lives of reinsurance contribution enrollees for the applicable benefit year to HHS no later than November 15, 2014, 2015, or 2016, or, if such date is not a business day, the next business day. Similarly, because November 15, 2015 and January 15, 2017 do not fall on a business day, we proposed to amend § 153.405(c)(2) so that a contributing entity must remit reinsurance contributions to HHS no later than January 15, 2015, 2016, or 2017, as applicable, or, if such date is not a business day, the next applicable business day, if making a combined contribution or the first payment of the bifurcated contribution; and no later than November 15, 2015, 2016, or 2017, as applicable, or, if such date is not a business day, the next applicable business day, if making the second payment of the bifurcated contribution.
Although we stated in the 2015 Payment Notice (79 FR 13776) that, for operational reasons, HHS would not permit contributing entities to elect to make the entire benefit year's reinsurance contribution by January 15, 2015, 2016, or 2017, as applicable, we have resolved those operational barriers, and now offer contributing entities the option to pay: (1) The entire 2014, 2015 or 2016 benefit year contribution in one payment no later than January 15, 2015, 2016, or 2017, as applicable (or, if such date is not a business day, the next applicable business day), reflecting the entire uniform contribution rate applicable to each benefit year (that is, $63 per covered life for 2014, $44 per covered life for 2015, and $27 per covered life for 2016); or (2) in two separate payments for the 2014, 2015, or 2016 benefit years, with the first remittance due by January 15, 2015, 2016, and 2017, as applicable (or, if such date is not a business day, the next applicable business day) reflecting the first payment of the bifurcated contribution (that is, $52.50 per covered life for 2014, $33.00 per covered life for 2015, and $21.60 per covered life for 2016); and the second remittance due by November 15, 2015, 2016, or 2017, as applicable (or, if such date is not a business day, the next applicable business day) reflecting the second payment of the bifurcated contribution (that is, $10.50 reinsurance fee per covered life for 2014, $11.00 per covered life for 2015, and $5.40 per covered life for 2016).
Under § 153.405(c)(1), HHS must notify the contributing entity of the reinsurance contribution amount allocated to reinsurance payments and administrative expenses to be paid for the applicable benefit year following submission of the annual enrollment count. We clarified that this notification will occur when the contributing entity enters the gross annual enrollment count into the Pay.gov form and the form auto-calculates the contribution amount owed. No separate notification or invoice will be sent to a contributing entity, unless a discrepancy in data or payment has been identified by the entity or HHS after the form is submitted. In addition, we proposed to delete § 153.405(c)(2), to be consistent with HHS permitting flexibility for a contributing entity (or the TPA or ASO contractor on its behalf) to remit the
We also proposed to amend and redesignate § 153.405(c)(3) to (c)(2) to clarify that a contributing entity must schedule its contribution payment for the applicable benefit year to occur no later than January 15, 2015, 2016, or 2017, as applicable (or, if such date is not a business day, the next applicable business day) if making a combined payment or the first payment of the bifurcated payment, and no later than November 15, 2015, 2016, or 2017, as applicable (or, if such date is not a business day, the next applicable business day) if making the second payment of the bifurcated payment. However, we noted that the form must be completed and the reinsurance contribution payment(s) must be
We noted that if a contributing entity elects to follow the bifurcated schedule, then the contributing entity is required to submit two separate forms through Pay.gov. However, the annual enrollment count reported on both forms must be the same. This is consistent with § 153.405(b) and previous guidance, which provide that no later than November 15 of benefit year 2014, 2015, or 2016, as applicable, a contributing entity must submit an annual enrollment count of the number of covered lives of reinsurance contribution enrollees one time for the applicable benefit year to HHS.
Finally, we proposed to amend § 153.405(g)(4)(1)(i) and (ii), which require a plan sponsor who maintains multiple group health plans to report to HHS the average number of covered lives calculated, the counting method used, and the names of the multiple plans being treated as a single group health plan as determined by the plan sponsor. A plan sponsor would continue to be required to determine this information, but would only need to report to HHS the average number of covered lives calculated and the other data elements required through the Pay.gov reinsurance contribution submission process. Under § 153.405(h), plan sponsors should retain this additional information (that is, the counting method used and the names of the multiple plans being treated as a single group health plan), as this information may be requested to assess the plan sponsor's compliance with the reinsurance contribution requirements.
We are finalizing these provisions as proposed.
As noted in the 2014 Payment Notice (78 FR 15462), the counting methods for the transitional reinsurance program are designed to align with the methods permitted for purposes of the fee to fund the Patient-Centered Outcomes Research Trust Fund (PCORTF). The PCORTF Final Rule (77 FR 72729) requires consistency in the use of counting methods for calculating covered lives for the duration of the year. We proposed for the 2015 and 2016 benefit years
We are finalizing this provision as proposed.
Under § 153.400(a)(1), reinsurance contributions are generally required for major medical coverage that is considered to be part of a commercial book of business, but contributions are not required to be paid more than once for the same covered life. Reinsurance contributions are generally calculated based on the number of covered lives covered by a plan or coverage that provides major medical coverage. The reinsurance contribution required from a contributing entity is calculated by multiplying the number of covered lives (determined under a permitted counting method set forth in § 153.405(d) through § 153.405(g)) during the applicable calendar year for all applicable plans and coverage of the contributing entity by the applicable contribution rate for the respective benefit year.
We proposed to clarify how the counting methods set forth in §§ 153.405(d)(2) and (e)(2) are to be used in those situations when a plan terminates or is established in the middle of a quarter to effectuate the principle that contributions are required to be paid once for the same covered life. Under the snapshot count method, described at § 153.405(d)(2), to determine the number of covered lives for the purposes of reinsurance contributions, the issuer or self-insured group health plan must add the total number of lives covered on any date (or
We understand that a health insurance plan or coverage may be established, terminated, or change funding mechanisms (that is, from fully insured to self-insured or self-insured to fully insured), in the middle of a quarter. In these circumstances, it is possible that the new plan or coverage would not have covered lives enrolled in the plan or coverage for the entire quarter. If this occurs, a contributing entity could, due to its selection of dates, be required to pay an amount significantly greater or lesser than the amount that would be due based on its average count of covered lives over the course of the 9-month counting period. To avoid this result, we proposed to clarify that, if the plan or coverage in question had enrollees on any day during a quarter and if the contributing entity elects to (and is permitted to) use either the snapshot count or snapshot factor method, it must choose a set of counting dates for the 9-month counting period such that the plan or coverage has enrollees on each of the dates, if possible. However, the enrollment count for a date during a quarter in which the plan or coverage was in existence for only part of the quarter could be reduced by a factor reflecting the amount of time during the quarter for which the plan or coverage was not in existence. This approach is intended to accurately capture the amount of time during the quarter for which major medical coverage that is part of a commercial book of business and subject to reinsurance contributions was provided to enrollees, while not requiring contributions to be paid more than once for the same covered life. For example, a contributing entity that has a plan that terminates on August 31st (that is, 62 days into the third quarter) would not be permitted to use September 1st as the date for the third quarter under the snapshot count or snapshot factor methods because this would not properly reflect the number of covered lives of reinsurance contribution enrollees under the plan in the third quarter of the benefit year. However, it would be entitled to reduce its count of covered lives during that quarter by 30/92, the proportion of the quarter during which the plan had no enrollment. This reduction factor would only be applicable for the snapshot count and snapshot factor methods set forth in §§ 153.405(d)(2) and (e)(2), respectively, as all of the other permitted counting methods automatically account for partial year enrollment.
Section 153.220(c) provides that HHS is to publish in the annual HHS notice of benefit and payment parameters the uniform reinsurance contribution rate for the upcoming benefit year. Section 1341(b)(3)(B)(iii) of the Affordable Care Act specifies that $10 billion for reinsurance contributions are to be collected from contributing entities for the 2014 benefit year (the reinsurance payment pool), $6 billion for the 2015 benefit year, and $4 billion for the 2016 benefit year. Additionally, sections 1341(b)(3)(B)(iv) and 1341(b)(4) of the Affordable Care Act direct that $2 billion in funds are to be collected for contribution to the U.S. Treasury for the 2014 benefit year, $2 billion for the 2015 benefit year, and $1 billion for the 2016 benefit year. Finally, section 1341(b)(3)(B)(ii) of the Affordable Care Act authorizes the collection of additional amounts for administrative expenses. Taken together, these three components make up the total dollar amount to be collected from contributing entities for each of the 2014, 2015, and 2016 benefit years under the uniform reinsurance contribution rate.
As discussed in the 2014 and 2015 Payment Notices, each year, the uniform reinsurance contribution rate will be calculated by dividing the sum of the three amounts (the reinsurance payment pool, the U.S. Treasury contribution, and administrative costs) by the estimated number of enrollees in plans that must make reinsurance contributions:
Section 153.220(c) provides that HHS is to establish in the annual HHS notice of benefit and payment parameters for the applicable benefit year the proportion of contributions collected
In the 2015 Payment Notice, we estimated that the Federal administrative expenses of operating the reinsurance program would be $25.4 million, based on our estimated contract and operational costs. We used the same methodology to estimate the administrative expenses for the 2016 benefit year. These estimated costs would cover the costs related to contracts for developing the uniform reinsurance payment parameters and the uniform reinsurance contribution rate, collecting reinsurance contributions, making reinsurance payments, and conducting account management, data collection, program integrity and audit functions, operational and fraud analytics, training for entities involved in the reinsurance program, and general operational support. To calculate our reinsurance administrative expenses for 2016, we divided HHS's projected total costs for administering the reinsurance programs on behalf of States by the expected number of covered lives for which reinsurance contributions are to be made for 2016.
We estimated this amount to be approximately $32 million for the 2016 benefit year. This estimate increased for the 2016 benefit year due to increased audit and data validation contract costs. We believe that this amount reflects the Federal government's significant economies of scale, which helps to decrease the costs associated with operating the reinsurance program. Based on our estimate of covered lives for which reinsurance contributions are to be made for 2016, we proposed a uniform reinsurance contribution rate of $0.17 annually per capita for HHS administrative expenses. We provide details below on the methodology we used to develop the 2016 enrollment estimates.
Similar to the allocation for 2015, for the 2016 benefit year, administrative expenses are allocated equally between contribution and payment-related activities. Because we anticipate that our additional activities in the 2016 benefit year, including our program integrity and audit activities, will also be divided approximately equally between contribution and payment-related activities, we again proposed to allocate the total administrative expenses equally between these two functions. Therefore, as shown in Table 9, we will apportion the annual per capita amount of $0.17 of administrative expenses as follows: (a) $0.085 of the total amount collected per capita for administrative expenses for the collection of contributions from contributing entities; and (b) $0.085 of the total amount collected per capita for administrative expenses for reinsurance payment activities, supporting the administration of payments to issuers of reinsurance-eligible plans.
If HHS operates the reinsurance program on behalf of a State, HHS would retain the annual per capita fee to fund HHS's performance of all reinsurance functions, which would be $0.17. If a State establishes its own reinsurance program, HHS would transfer $0.085 of the per capita administrative fee to the State for purposes of administrative expenses incurred in making reinsurance payments, and retain the remaining $0.085 to offset HHS's costs of collecting contributions. We note that the administrative expenses for reinsurance payments will be distributed to those States that operate their own reinsurance program in proportion to the State-by-State total requests for reinsurance payments made under the uniform reinsurance payment parameters.
We are finalizing the 2016 contribution rate as proposed and finalizing our policy to increase the 2016 coinsurance rate to 100 percent prior to rolling over any excess funds to 2017.
Section 1341(b)(2)(B) of the Affordable Care Act directs the Secretary, in establishing standards for the transitional reinsurance program, to include a formula for determining the amount of reinsurance payments to be made to issuers for high-risk individuals that provides for the equitable allocation of funds. In the Premium Stabilization Rule, we provided that reinsurance payments to eligible issuers will be made for a portion of an enrollee's claims costs paid by the issuer (the coinsurance rate, meant to reimburse a proportion of claims while giving issuers an incentive to contain costs) that exceeds an attachment point (when reinsurance would begin), subject to a reinsurance cap (when the reinsurance program stops paying claims for a high-cost individual). The coinsurance rate, attachment point, and reinsurance cap together constitute the uniform reinsurance payment parameters.
Given the smaller pool of reinsurance contributions to be collected for the 2016 benefit year, we proposed that the uniform reinsurance payment parameters for the 2016 benefit year be established at an attachment point of $90,000, a reinsurance cap of $250,000, and a coinsurance rate of 50 percent. We estimated that these uniform reinsurance payment parameters will result in total requests for reinsurance payments of approximately $4 billion for the 2016 benefit year. We believe setting the coinsurance rate at 50 percent and increasing the attachment point allows for the reinsurance program to help pay for nearly the same group of high-cost enrollees as was the case for the 2014 and 2015 benefit years, while still encouraging issuers to contain costs.
As discussed in the 2014 and 2015 Payment Notices, to assist with the development of the uniform reinsurance payment parameters and the premium adjustment percentage index, HHS developed the Affordable Care Act Health Insurance Model (ACAHIM). The ACAHIM generates a range of national and State-level outputs for 2016, using updated assumptions reflecting more recent data, but using the same methodology described in the 2014 and 2015 Payment Notices.
Specifically, the ACAHIM uses the Health Intelligence Company, LLC (HIC) database from calendar year 2010, with the claims data trended to 2016 to estimate total medical expenditures per enrollee by age, gender, and area of residence. The expenditure distributions are further adjusted to take into account plan benefit design, or “metal” level (that is, “level of coverage,” as defined in § 156.20) and other characteristics of individual insurance coverage in an Exchange. To describe a State's coverage market, the ACAHIM computes the pattern of enrollment using the model's predicted number and composition of participants in a coverage market. These estimated expenditure distributions were the basis for the uniform reinsurance payment parameters.
We are finalizing the 2016 payment parameters as proposed.
In the proposed rule, we proposed lowering the 2015 attachment point from $70,000 to $45,000 as this would allow the reinsurance program to make more payments for high-cost enrollees in individual market reinsurance-eligible plans without increasing the contribution rate. We did not propose to adjust the 2015 coinsurance rate of 50 percent or reinsurance cap of $250,000.
We are finalizing the reduction of the 2015 attachment point to $45,000 as proposed.
We proposed to modify the methodology finalized in the 2015 Payment Notice (79 FR 13780) regarding the deduction of cost-sharing reduction amounts from reinsurance payments. Under § 156.410, if an individual is determined eligible to enroll in an individual market Exchange QHP and elects to do so, the QHP issuer must assign the individual to a standard plan or cost-sharing plan variation based on the enrollment and eligibility information submitted by the Exchange. Issuers of individual market Exchange QHPs will receive cost-sharing reduction payments for enrollees who have effectuated coverage in cost-sharing plan variations. To avoid double payment by the Federal government, we indicated in the 2014 Payment Notice
In the 2015 Payment Notice (79 FR 13780), we explained the methodology HHS will use to deduct the amount of cost-sharing reductions paid on behalf of an enrollee enrolled in a QHP in an individual market through an Exchange. For each enrollee enrolled in a QHP plan variation,
We also stated that for an enrollee who is assigned to different plan variations during the benefit year, we would calculate the adjustment for cost-sharing reductions based on the annual limitation on cost sharing applicable to the plan variation in which the enrollee was last enrolled during the benefit year, because cost sharing accumulates over the benefit year across plan variations of the same standard plan. We proposed a modification to this particular policy.
Specifically, if an enrollee is assigned to different plan variations during the benefit year, we proposed to calculate the adjustment for cost-sharing reductions based on the difference between the annual limitation on cost sharing for the standard plan and the average annual limitation on cost sharing in the plan variations (including any standard plan), weighted by the number of months the enrollee is enrolled in each plan variation during the benefit year.
We are finalizing this proposal as proposed.
On November 14, 2013, the Federal government announced a transitional policy under which it will not consider certain health insurance coverage in the individual or small group markets that is renewed for a policy year starting after January 1, 2014, under certain conditions to be out of compliance with specified 2014 market rules, and requested that States adopt a similar non-enforcement policy.
In response to stakeholder questions, we proposed to clarify in the 2016 Payment Notice that the transitional adjustment applies only for plans under the transitional policy—that is, plans that renew after January 1, 2014 for which HHS and the applicable State are not enforcing market rules. We proposed to further clarify that member-months of enrollees in early renewal plans would not be counted towards the risk corridors transitional policy adjustment (that is, unless and until the plan becomes a transitional plan in a transitional State upon renewal in 2014).
On April 11, 2014, we issued a bulletin titled “Risk Corridors and Budget Neutrality,” which described how we intend to administer risk corridors over the 3-year life of the program.
In the proposed 2016 Payment Notice, we proposed that if, for the 2016 benefit year, cumulative risk corridors collections exceed cumulative risk corridors payment requests, we would make an adjustment to our administrative expense definitions (that is, the profit margin floor and the ceiling for allowable administrative costs) to account for the excess funds. That is, if, when the risk corridors program concludes, cumulative risk corridors collections exceed both 2016 payment requests under the risk corridors formula and any unpaid risk corridors amounts from previous years, we would increase the administrative cost ceiling and the profit floor in the risk corridors formula by a percentage calculated to pay out all collections to QHP issuers. The administrative cost ceiling and the profit floor would be adjusted by the same percentage.
We proposed to determine the percentage adjustment to the administrative cost ceiling and profit margin floor by evaluating the amount of excess risk corridors collections (if any) available after risk corridors payments for benefit year 2016 have been calculated. As stated in our bulletin on risk corridors and budget neutrality, after receiving charges from issuers for the 2016 benefit year, we would first prioritize payments to any unpaid risk corridors payments remaining from the 2015 benefit year. We would then calculate benefit year 2016 risk corridors payments for eligible issuers based on the 3 percent profit floor and 20 percent allowable administrative cost ceiling, as required by regulation. If, after making 2015 payments and calculating (but not paying) risk corridors payments for benefit year 2016, we determine that the aggregate amount of collections (including any amounts collected for 2016 and any amounts remaining from benefit years 2014 and 2015) exceed what is needed to make 2016 risk corridors payments, we would implement an adjustment to the profit floor and administrative cost ceiling to increase risk corridors payments for eligible issuers for benefit year 2016. We would examine data that issuers have submitted for calculation of their 2016 risk corridors ratios (that is, allowable costs and target amount) and determine, based on the amount of collections available, what percentage increase to the administrative cost ceiling and profit floor could be implemented for eligible issuers while maintaining budget neutrality for the program overall. Although all eligible issuers would receive the same percentage adjustment, we proposed that the amount of additional payment made to each issuer would vary based on the issuer's allowable costs and target amount. We proposed that, once HHS calculated the adjustment and applied it to eligible issuers' risk corridors formulas, it would make a single risk corridors payment for benefit year 2016 that would include any additional, adjusted payment amount.
Because risk corridors collections are a user fee to be used to fund premium stabilization under risk corridors and no other programs, we proposed to limit this adjustment to excess amounts collected. We also proposed to apply this adjustment to allowable administrative costs and profits for the 2016 benefit year only to plans whose allowable costs (as defined at § 153.500) are at least 80 percent of their after-tax premiums, because issuers under this threshold would generally be required to pay out MLR rebates to consumers.
As previously stated, we anticipate that risk corridors collections will be sufficient to pay for all risk corridors payments. HHS recognizes that the Affordable Care Act requires the Secretary to make full payments to issuers. In the unlikely event that risk corridors collections, including any potential carryover from the prior years, are insufficient to make risk corridors payments for the 2016 program year, HHS will use other sources of funding for the risk corridors payments, subject to the availability of appropriations.
We are finalizing this policy as proposed.
In the second Program Integrity Rule,
We proposed to amend § 153.740(a) to extend the safe harbor for non-compliance with the HHS-operated risk adjustment and reinsurance data requirements during the 2015 calendar year if the issuer has made good faith efforts to comply with these requirements. This proposal acknowledged that the distributed data collection requirements have been the subject of modifications through the 2014 calendar year, including the introduction of cloud-based virtual options for the distributed data environment. We note that good faith efforts could include notifying, communicating with, and cooperating with HHS for issues that arise with the establishment and provisioning of the issuers' dedicated distributed data environment.
The extension of this good faith safe harbor would not affect HHS's ability to assess issuers of risk adjustment covered plans a default risk adjustment charge under § 153.740(b).
In the second Program Integrity Rule and the 2015 Payment Notice, HHS indicated that a default risk adjustment charge will be assessed if an issuer does not establish a dedicated distributed data environment or submits inadequate risk adjustment data. However, we did not establish how the money collected from the default charge will be allocated among risk adjustment covered plans.
We proposed to allocate collected per member per month default charge funds proportional to each plan's relative revenue requirement, the product of
This allocation would occur only in risk adjustment markets with at least one noncompliant plan, and these steps would be used to calculate each compliant plan's allocation of the default charges collected from the noncompliant plan(s). We would calculate risk transfers among the compliant plans only and exclude all data from noncompliant plans. Using the same inputs of the compliant plans as used in the transfer formula, we would calculate the distribution of default charges paid by noncompliant plans among the compliant plans using the following formula:
In § 153.740, we established the enforcement remedies available to HHS for an issuer of a risk adjustment covered plan or a reinsurance-eligible plan's failure to comply with HHS-operated risk adjustment and reinsurance data requirements. Consistent with the policy set forth at § 156.800(d), as finalized in the 2015 Market Standards Rule,
We received no comments on this proposal. We are finalizing this provision as proposed.
In the proposed rule, we proposed several modifications to enhance the transparency and effectiveness of the rate review program under part 154. These provisions were proposed to apply generally beginning with rates filed in 2015 for coverage effective on or after January 1, 2016. We requested comment on whether the proposal provides States and issuers sufficient time to transition to the new rate review requirements.
Under § 154.102, we set forth definitions of terms that are used throughout part 154. We proposed adding a new definition of “plan” and revising the definitions of “individual market,” “small group market,” and “State.” For the most part, these terms would have the meaning given such terms in § 144.103. For a discussion of the terms “plan” and “State,” please see the preamble for § 144.103 in this final rule.
We also proposed to modify the definition of “rate increase.” The revisions would conform with our proposal in § 154.200 to consider rate increases at the plan-level when determining whether a rate increase is subject to review.
We did not receive comments on the definitions of “individual market,” “small group market,” and “rate increase.” We are finalizing these revisions as proposed, except that the revised definition of “rate increase” has been modified to clarify that the changes made to conform with the proposal in § 154.200 will apply for rates filed for coverage effective on or after January 1, 2017. The other definitions will apply for rates filed for coverage effective on or after January 1, 2016.
In § 154.200, we proposed modifications to the standards for rate increases that are subject to review. In paragraphs (a)(1) and (2), we proposed technical corrections to clarify that rate increases are applicable to a 12-month period that begins on January 1 rather than September 1 of each year.
In paragraph (c), we proposed that rate increases would be calculated at the plan level (as opposed to the product level) when determining whether an increase is subject to review. Under this approach, if any plan within a product in the individual or small group market experiences an increase in the plan-adjusted index rate (as described in § 156.80) that meets or exceeds the applicable threshold (either 10 percent or a State-specific threshold), the entire product would be subject to review to determine whether the rate increase is unreasonable. This proposal was intended to ensure that a plan that experiences a significant rate increase could not avoid review simply because the average increase for the product did not meet or exceed the applicable threshold.
We sought comment on all aspects of these proposals, including the benefits and costs to States of carrying out the plan-level trigger for review.
In § 154.215(a), we proposed a technical correction to clarify that issuers must submit a rate filing justification for all products in the issuer's single risk pool when “any plan within a product” in the individual or small group market is subject to a rate increase. This is true regardless of whether the rate increase meets or exceeds the subject to review threshold. We proposed this clarification take effect with the effective date of the final rule. We are finalizing this clarification as proposed.
To provide consistency and transparency in the rate submission process, ensure a more meaningful opportunity for public review and comment, and reduce the opportunity for anti-competitive behavior, we proposed to modify § 154.220 to establish a uniform timeline by which health insurance issuers must submit to CMS or the applicable State a completed rate filing justification for proposed rate increases—for both QHPs and non-QHPs—in the individual and small group markets. Under the proposed rule, the issuer would be required to submit the justification by the earlier of the following: (1) The date by which the State requires a proposed rate increase to be filed with the State; or (2) the date specified by the Secretary in guidance. We suggested that we were considering specifying a deadline to coincide with the end of the QHP application window for the FFE. States would have flexibility to impose earlier rate filing deadlines to meet their specific State needs. We sought comment on this proposal.
We are finalizing these provisions as proposed. We intend to specify the submission deadline for the 2015 filing year in forthcoming guidance.
Commenters who opposed the proposal were concerned that the HHS deadline would not provide issuers sufficient time to collect claims data and appropriately develop rates for the upcoming benefit year. Commenters also expressed concern that requiring rates for QHPs and non-QHPs to be submitted at the same time would impose an increased workload on State regulators, making it difficult to conduct thorough reviews and potentially creating delays in the review and approval process. Many commenters objected to a nationally uniform rate review timeline and urged State flexibility to set their own filing deadlines, particularly in States with effective rate review programs and States that operate their own Exchanges. Some commenters believed it would be sufficient for HHS to simply establish a deadline for States to complete their reviews.
Several commenters remarked on the specific deadline for rate filing submissions. One commenter recommended HHS establish a rate filing deadline of no sooner than May 15, while another commenter recommended a mid-summer deadline. Another commenter recommended that issuers have 90 days after the end of the FFE QHP application window to prepare the rate filing justification. Some commenters asserted that the filing deadline must accommodate a sufficient public comment period.
One commenter suggested that grandfathered and transitional plans should not be subject to the same filing deadlines as single risk pool compliant
We note that States retain significant flexibility to stage the timing of their reviews consistent with this final rule. This could include establishing filing deadlines prior to the HHS deadline, staggering the submission of forms and rates, or establishing varying deadlines for the individual and small group markets.
Finally, we clarify that, while transitional plans are generally subject to the rate review requirements, the uniform submission timeline applies only to non-grandfathered individual and small group market coverage that is subject to the single risk pool requirement. Grandfathered health plans are not subject to the Federal rate review program.
We proposed to amend § 154.301(b) to specify the timeframe for a State with an effective rate review program to provide public access to information about proposed and final rate increases.
Under the proposed rule, for proposed rate increases subject to review, the State would be required to provide public access from its Web site to the information contained in Parts I, II, and III of the rate filing justification that CMS makes available on its Web site (or provide CMS's web address for such information). The proposed rule would require that the State take this action no later than the date specified by the Secretary in guidance. We suggested the 10th business day following receipt of all rate filings in the relevant State market as the potential timeframe we may specify for this purpose. The proposed rule would also continue to require that the State have a mechanism for receiving public comments on those proposed rate increases.
For all final rate increases (including those not subject to review), the proposed rule would similarly require that the State provide public access from its Web site to the information contained in Parts I, II, and III of the rate filing justification that CMS makes available on its Web site (or provide CMS's web address for such information). The State would be required to take this action no later than the first day of the individual market annual open enrollment period.
Nothing in this proposal would prevent States from making additional information available to the public, or prevent States from establishing earlier timeframes for public disclosure. States that elect to establish earlier posting timeframes would be required under the proposed rule to notify CMS in writing at least 30 days prior to the date the information will be made public. States would also be required to ensure that rate information released to the public is made available at a uniform time for all proposed and final rate increases (as applicable) in the relevant market segment and without regard to whether coverage is offered through an Exchange or outside of an Exchange.
We sought comment on these proposals, including how the timeframes may interact with current State practice and workload. We also sought comment on whether States with effective rate review programs should be required to post rate information on the State's Web site, rather than being permitted to provide a link to CMS's Web site for such information.
We are finalizing these provisions as proposed. We are also maintaining the option for States to continue to provide public access from their Web site via link to rate information made available on the CMS Web site.
In § 155.20, we proposed to amend the definitions of “applicant,” “enrollee,” and “qualified employee.” First, we proposed to specify that a qualified employer could elect to offer coverage through a SHOP to its former employees that may include retirees, as well as former employees to whom an employer might be obligated to provide continuation coverage under applicable State or Federal law. Second, we proposed to specify that a qualified employer could also elect to offer coverage through the SHOP to dependents of employees or former employees. Third, we proposed to specify that business owners may enroll in SHOP coverage provided that at least one employee enrolls. We proposed to amend these definitions to make it clear that SHOPs may allow small group enrollment practices that were in place before the Affordable Care Act to continue, to preserve continuity for issuers and employers, and to reduce the administrative complexity involved with transitioning to SHOP coverage for qualified employers.
We are finalizing the amendments to the definitions of applicant and qualified employee as proposed, and are modifying the amendments to the definition of enrollee in light of comments we received.
The preamble to the proposed rule also sought comment on whether other provisions of the Exchange rules in parts 155 and 156 would need to be amended to implement the changes proposed to these definitions. HHS interprets § 155.220(i) to give SHOPs the flexibility to permit web-brokers to enroll not just “qualified employees,” but all enrollees, consistent with the expansion of the definition of “enrollee” that is being finalized in this rule. Therefore, we are also modifying § 155.220(i) to refer to facilitating enrollment in coverage through the SHOP for enrollees instead of qualified employees.
In light of this comment, we note that the proposed amendments to the definition of “enrollee” did not account for a situation in which a person is enrolled in coverage because she is eligible for continuation coverage, but is no longer a dependent of the qualified employee or other primary subscriber. To account for this situation, we are modifying the proposed definition of “enrollee” to include any other person who is enrolled in a QHP through the SHOP consistent with applicable law and the terms of the group health plan.
In the proposed rule, we proposed to amend § 155.205(c) to specify the oral interpretation services that are required for certain entities subject to § 155.205(c). Specifically, for each Exchange, QHP issuer, and agent or broker subject to § 155.220(c)(3)(i) (referred to in this section as a “web-broker”), we proposed that the requirement to provide oral interpretation services under § 155.205(c)(2)(i) would include making available telephonic interpreters in at least 150 languages. We also proposed amendments to § 156.250 that are discussed below, and that would require QHP issuers to provide all information that is critical for obtaining health insurance coverage or access to health care services through the QHP, including applications, forms, and notices, to qualified individuals, applicants, qualified employers, qualified employees, and enrollees in
We proposed to limit the applicability of the proposed 150 languages standard for telephonic interpreter services to Exchanges, web-brokers, and QHP issuers. We did not propose to apply this standard to Navigators and non-Navigator assistance personnel because, as we stated in the proposed rule, the smaller non-profit organizations that frequently make up the bulk of these consumer assistance entities have limited resources.
In the proposed rule, we also solicited comment on whether we should consider more or different language accessibility standards in § 155.205(c). We provided certain examples in the preamble. With respect to written translations, we gave an example of requiring written translations in the languages spoken by the top 10 limited English proficiency (LEP) groups in the State or spoken by 10,000 persons or greater, whichever yields the greater number of languages. With respect to taglines (short statements informing individuals of the availability of language access services), we gave an example of requiring taglines in the top 30 non-English languages spoken nationwide on documents required by State or Federal law or containing information that is critical to obtaining health insurance coverage or access to health care services through a QHP. We also provided an example that would establish a uniform, national standard that written translations, taglines on notices and Web site content, and oral interpretation services be provided in the top 15 languages spoken by LEP individuals in the United States. Finally, we provided an example specific to Web site content that would have required the content to be translated in each non-English language spoken by an LEP population that reaches 10 percent of the State population.
Based on comments received, as discussed below, we are finalizing the proposal with the following modifications:
To give new web-brokers more time for implementation, we are revising § 155.205(c)(2)(i) to specify that for an agent or broker subject to § 155.220(c)(3)(i), the standard to provide telephonic interpreter services in at least 150 languages applies no later than November 1, 2015, the first day of the individual market open enrollment period for the 2016 benefit year, or 1 year after such entity has been registered with the Exchange, whichever is later.
We are revising § 155.205(c)(2)(iii) to specify that, beginning at the start of the individual market open enrollment period for the 2017 benefit year, for Exchanges, QHP issuers, and agents or brokers subject to § 155.220(c)(3)(i), the general standard to provide taglines in non-English languages indicating the availability of language services includes taglines on Web site content and documents that are critical for obtaining health insurance coverage or access to health care services through a QHP for qualified individuals, applicants, qualified employers, qualified employees, or enrollees indicating the availability of language services in at least the top 15 languages spoken by the LEP population of the relevant State, as determined in HHS guidance. Documents are considered to be “critical” if the entity is required by State or Federal law or regulation to provide them to a qualified individual, applicant, qualified employer, qualified employee, or enrollee. We added that for an agent or broker subject to § 155.220(c)(3)(i), this standard will apply beginning no later than at the start of the individual market open enrollment period for the 2017 benefit year, or when the entity has been registered with the Exchange for at least 1 year, whichever date is later. HHS plans to provide sample taglines in all languages triggered by this threshold. For purposes of § 155.205(c)(2), the meaning of the terms “qualified individual,” “applicant,” “qualified employer,” “qualified employee,” and “enrollee” is intended to be consistent with the definitions for these terms under § 155.20.
We also modified the language following § 155.205(c)(2)(i) and § 155.205(c)(2)(iii) to make clear that the general standards with respect to oral interpretation and taglines continue to apply to all entities subject to § 155.205(c).
We added § 155.205(c)(2)(iv) to create a new standard related to translations of Web site content for Exchanges, QHP issuers, and agents or brokers subject to § 155.220(c)(3)(i). The new standard specifies that beginning at the start of the individual market open enrollment period for the 2017 benefit year, the content of a Web site maintained by an Exchange or QHP issuer must be translated into any non-English language that is spoken by an LEP population that reaches 10 percent or more of the population of the relevant State, as determined in HHS guidance. For an agent or broker subject to § 155.220(c)(3)(i), this standard will apply beginning at the start of the individual market open enrollment period for the 2017 benefit year or when the entity has been registered with the Exchange for at least 1 year, whichever date is later. We clarify that for Exchanges and web-brokers, this requirement applies to all content that is intended for qualified individuals, applicants, qualified employers, qualified employees, or enrollees that is maintained by the entity on the Web site and is not limited to information that is critical for obtaining health insurance coverage or access to health care services through a QHP. We note that QHP issuers are not required to translate all Web site content that is intended for qualified individuals, applicants, qualified employers, qualified employees, or enrollees; rather, the type of Web site content that must be translated aligns with the definition of “critical” information to which QHP issuers must provide meaningful access under § 156.250 as finalized in this rule. In addition, an entity that is required to translate Web site content consistent with this provision must also still include taglines, in accordance with § 155.205(c)(2)(iii), on its English version Web pages. This entity would not, however, be required to include taglines on its non-English version Web pages, but it could do so voluntarily.
There are a number of existing language access standards under current regulations applicable to Navigators that are consistent with the requirement under section 1311(i)(3)(E) of the Affordable Care Act that Navigators provide information in a manner that is culturally and linguistically appropriate to the needs of the population being served by the Exchange or Exchanges. For example, under § 155.210(e)(5), Navigators in all Exchanges must provide information in a manner that is culturally and linguistically appropriate to the needs of the population being served by the Exchange, including individuals with LEP. Further, the general requirements at § 155.205(c) to provide oral interpretation, written translations, and taglines in non-English languages indicating the availability of language services, continue to apply to all entities carrying out activities under § 155.205(d) and (e), including Navigators and non-Navigator assistance personnel, even though the more specific standards finalized here do not apply to those entities. As noted above, included in this general requirement is the requirement under § 155.205(c)(3) to inform individuals who are LEP about the availability of the full range of language access services described in § 155.205(c)(2) and how to access such services. As such, if they lack the immediate capacity to help an LEP individual, all Navigators and non-Navigator assistance personnel in every Exchange should inform that individual about the availability of language access services through other sources, such as the Exchange Call Center. In addition, Navigators and non-Navigator assistance personnel in FFEs and State Partnership Exchanges, and non-Navigator assistance personnel funded through an Exchange Establishment grant, must comply with the standards set forth in § 155.215(c)(3), which require them to provide consumers with information and assistance in the consumer's preferred language, at no cost to the consumer, including the provision of oral interpretation of non-English languages and the translation of written documents in non-English languages when necessary or when requested by the consumer to ensure effective communication. Exempting Navigators and non-Navigator assistance personnel from the specific requirements finalized here does not exempt them from complying with other applicable laws and regulations that govern the language accessibility of their work.
In light of these considerations, we are finalizing a standard whereby an Exchange, QHP issuer, or web-broker would be required to include taglines on Web site content and any document that is critical for obtaining health insurance coverage or access to health care services through a QHP for qualified individuals, applicants, qualified employers, qualified employees, or enrollees in at least the top 15 languages spoken by the LEP population in the relevant State. If an entity's service area covers multiple States, the top 15 languages spoken by LEP individuals may be determined by aggregating the top 15 languages spoken by all LEP individuals among the total population of the relevant States. A document is deemed to be critical for obtaining health insurance coverage or access to health care services through a QHP if it is required to be provided by State or Federal law or regulation to a qualified individual, applicant, qualified employer, qualified employee, or enrollee. Taglines must be included if a document is considered “critical” information to which QHP issuers must provide meaningful access under § 156.250 as finalized in this rule, so that most LEP consumers might receive notice of language access services regardless of whether such “critical” information is being provided to them by an Exchange, a QHP issuer, or a web-broker. This requirement with respect to taglines adds to the standard set forth in § 156.250 because it applies to all Web site content that is provided to qualified individuals, applicants, qualified employers, qualified employees, and enrollees by an Exchange, QHP issuer, or web-broker, regardless of whether such content must be translated in accordance with § 155.205(c)(2)(iv) as finalized in this rule. We included this requirement because all consumers, regardless of their English proficiency, are encouraged to apply for and enroll in coverage through an Exchange online, and we believe that consumers with LEP should be able to immediately identify taglines informing them of their ability to obtain language access services on the Web sites of entities subject to this standard.
It is also important that LEP consumers, whether they are being served by an Exchange, QHP issuer, or web-broker, are able to obtain the same minimum number of taglines on such documents, and therefore are applying this standard equally across these entities. However, in recognition of the fact that newer web-brokers are often smaller entities that may not as easily meet this standard as an Exchange or QHP issuer, we are providing them additional lead time to comply, specifically, until the first day of the individual market open enrollment period for the 2017 benefit year or when such entity has been registered with the Exchange for at least 1 year, whichever is later. To facilitate compliance with this standard, beginning in early 2016, we plan to issue guidance which identifies the applicable non-English languages in each State.
Given the substantial effort and resources involved in translating Web site content, we believe that the suggestion to translate Web site content in the top three languages spoken by the LEP population in the State is too burdensome. In addition, partly because of concerns raised about burden as well as our guiding principle of focusing on the demographics and anticipated language needs of the community being served using stable and reliable data, we are also not finalizing the standard discussed in the preamble to the proposed rule that would have required a uniform standard for written translations, taglines, and Web site content translations in the top 15 languages spoken nationwide among the LEP population.
We also believe it is important that LEP consumers in a given State are able to obtain the same minimum level of language access services from the Exchange, QHP issuers operating in the Exchange, and web-brokers operating in the State and therefore are applying a Web site content translation standard across these entities. However, we are providing web-brokers additional time to comply. Specifically, web-brokers will have until the first day of the individual market open enrollment period for the 2017 benefit year, or when such entity has been registered with the Exchange for at least 1 year, whichever is later.
As noted above, regardless of whether an entity is required to translate Web site content into an applicable non-English language under this provision, the entity's English Web site content will always be required to display taglines in at least the top 15 non-English languages spoken among the LEP population of the relevant State, consistent with § 155.205(c)(2)(iii) of this rule, so that a wider range of LEP individuals whose language does not meet the 10 percent threshold in § 155.205(c)(2)(iv) may still obtain language access services through oral interpretation or written translations, as applicable. For example, if an entity is required to translate Web site content into Spanish because the Spanish-speaking LEP population in the applicable State reaches 10 percent of the State's population, the entity's English version Web site must still display taglines in the top 15 non-English languages spoken by the LEP population of the relevant State. To facilitate compliance with this standard, beginning in early 2016, we plan to issue guidance that identifies the applicable languages and States meeting this threshold.
We note that for an entity whose service area covers multiple States, if at least one language in one of the States it serves meets the 10 percent threshold in § 155.205(c)(2)(iv), then the applicable information on the entity's Web site must be translated into that language.
To clarify that only a non-Navigator entity must maintain a physical presence in the Exchange service area, rather than each individual non-
We are finalizing this clarification as proposed.
In § 155.20, we are amending the definition of enrollee in the SHOP to include individuals other than qualified employees. To conform to this amendment, we are finalizing a modification to § 155.220(i). For a discussion of this amendment, please see the preamble for § 155.20.
In § 155.222, we proposed a process for HHS to approve vendors to offer training and information verification services as an additional avenue to the available HHS training, by which State licensed agents and brokers could complete the training requirements necessary to assist consumers seeking coverage through the FFEs. In § 155.222(a), we proposed an application and approval process for vendors seeking recognition as HHS-approved vendors of FFE training and information verification for agents and brokers. As part of an approved training and information verification program, we proposed that the vendor must require agents and brokers to successfully complete identity proofing, provide identifying information, and successfully complete the required curriculum. Further, we proposed that no training program would be recognized unless it included an information verification component under which the vendor confirms the identity and applicable State licensure of the person who is credited with successful completion of the training program. We proposed that only HHS-approved vendors that meet the designated standards would have their programs recognized by HHS. We proposed that vendors be approved for one-year terms, and that vendors seeking to continue their recognition as HHS-approved vendors for FFE agent and broker training and information verification the following year be re-approved through a process to be determined by HHS.
In paragraph (b), we proposed the standards that a vendor must meet to be approved by HHS to offer FFE training and information verification to agents and brokers. In paragraph (b)(1), we proposed that the vendor submit a complete and accurate application by the deadline established by HHS, which demonstrates prior experience with successfully conducting online training and identity proofing, as well as providing technical support to a large customer base. We proposed in paragraph (b)(2) that the vendor be required to adhere to HHS specifications for content, format, and delivery of training and information verification. HHS would require vendors to have their training approved for continuing education units accepted by State regulatory entities. In paragraph (b)(3) we proposed that vendors be required to collect, store, and share with HHS all data from agent and broker users of the vendor's training and information verification in a manner specified by HHS, and protect the data in accordance with applicable privacy and security laws and regulations. In paragraph (b)(4), we proposed that the vendor be required to execute an agreement with HHS, in a form and manner to be determined by HHS, which requires the vendor to comply with HHS guidelines for interfacing with HHS data systems, the implementation of the training and information verification processes, and the use of all data collected. We also proposed to require vendors to adopt a fee structure that is consistent with the fee structure for comparable trainings offered by the vendor to comparable audiences. In paragraph (b)(5), we proposed that the vendor be required to permit any individual who holds a valid State license or equivalent State authority to sell health insurance products to access the vendor's training and information verification process.
In paragraph (c), we proposed that once HHS has completed the approval process for vendors for a given year, HHS would publish a list of approved entities on an HHS Web site. In paragraph (d), we proposed that HHS may monitor and audit approved vendors and their records related to the
In paragraph (e), we proposed that such a vendor may appeal HHS's decision by notifying HHS in writing within 15 days of receipt of the notification by HHS of not being approved or having its approval revoked, and submitting additional documentation demonstrating how the vendor meets the standards in paragraph (b) and (if applicable) the terms of their agreement with HHS. HHS will review the submitted documentation and make a final determination within 30 days from receipt of the submission of the additional documentation.
We are finalizing these provisions as proposed, with the modifications detailed below.
After HHS launches 2016 plan year training, planned for the summer of the 2015 calendar year, HHS intends to monitor vendor training programs and work with vendors to make sure that the FFE training content and delivery continues to meet HHS standards. HHS may audit approved vendors throughout the plan year in accordance with § 155.222(d). HHS intends to issue future guidance regarding § 155.222(b)(2) that will outline the training specifications for content and coverage . If a vendor's training program fails to meet HHS standards after public release, HHS may revoke the vendor's approval to offer FFE training, and would work with affected agents and brokers to ensure they have the required training.
In the preamble to paragraph (b)(1) (79 FR 70706), we explained that HHS would only approve vendors if no current or past regulatory, enforcement, or legal action has been taken by a State or Federal regulator against the entity in the 3 years prior to the application or renewal application deadline under this section. After careful consideration of the various events at the State and Federal level that may constitute an “enforcement” action, we note that HHS will take into consideration justifications, corrective actions taken, or other mitigating or aggravating circumstances (for example, the financial impact of the violation, or the number of individuals affected by the violation) in evaluating whether a past or current violation would exclude a potential vendor from participation. Vendors whose applications are denied will have the opportunity to appeal HHS's decision under § 155.222(e), and may submit additional documentation for HHS to consider about potential mitigating circumstances.
To more accurately describe the information verification functionality that vendors must provide to agents and brokers, we are adding “proof of valid State licensure” in paragraph (a)(2). Because HHS expects vendors to demonstrate prior experience with verifying State licensure on the application, we are adding “verification of valid State license” in paragraph (b)(1)(i). In response to a comment that explained that organizations that currently conduct agent and broker training may not have experience with identity proofing, we are amending the requirement in paragraph (b)(1)(ii) so that vendors must demonstrate the ability to conduct identity proofing, but do not have to provide proof of prior experience. The goal of the information verification process is to confirm the State licensure and identity of agents and brokers who successfully complete FFE training before they are permitted by HHS to assist consumers with FFE eligibility determinations and QHP selections as an agent or broker. Therefore, vendors must demonstrate a current capability of verifying both the identity of the person completing the training, as well as his or her State licenses or equivalent State authorizations to sell health insurance products.
We are finalizing these provisions as proposed, with the following modifications. We are dividing proposed paragraph (a) into three paragraphs. To add description to the information verification functionality that vendors must provide to agents and brokers, we are adding “proof of valid licensure” in paragraph (a)(2), and also adding “verification of valid State license” to the new paragraph (b)(1)(i). We are adding paragraph (b)(1)(ii) to clarify that vendors must have the ability to host identity proofing, but do not need to demonstrate prior experience. In paragraph (b)(2), we are adding “offering continuing education units (CEUs) for at least five States in which an FFE is operating.” We are adding “format, and frequency” to paragraph (b)(3) with respect to the collection, storage, and sharing of data to further protect the personally identifiable information of agents and brokers, and aid HHS in the monitoring of vendors' training and information verification programs.
In § 155.335, we proposed permitting Exchanges to implement alternative re-enrollment hierarchies in future benefit years. We sought comment on a default re-enrollment hierarchy that consumers could opt into that would be triggered if the enrollee's current plan's premium increased from the prior year, or increased relative to the premium of other similar plans (such as plans of the same metal tier), by more than a threshold amount, such as 5 percent or 10 percent. We also sought comment on whether SBMs should have the flexibility to implement alternative re-enrollment hierarchies beginning with the 2016 open enrollment and whether to adopt any such alternatives in the FFE for 2017 open enrollment.
In light of the comments discussed below, we are not finalizing our proposal to explore alternative re-enrollment hierarchies for the FFE at this time. However our current rules permit Exchanges to implement alternative re-enrollment hierarchies under § 155.335(a)(2)(iii) based on a showing by the Exchange that the alternative procedures would facilitate continued enrollment in coverage for which the enrollee remains eligible, provide clear information about the process to the qualified individual or enrollee (including regarding any action by the qualified individual or enrollee necessary to obtain the most accurate redetermination of eligibility), and provide adequate program integrity protections, and we welcome efforts by SBEs to develop alternative hierarchies consistent with these standards that meet the needs of their consumers.
In contrast, some commenters supported the proposal's emphasis on low-cost premiums. One commenter believed that multiple re-enrollment hierarchies should be available to consumers, but cautioned that these options should be limited to two, and be easy to understand.
Commenters had concerns that consumers may not realize that opting into a default enrollment hierarchy based on low-cost premiums may result in other significant changes to their coverage, as noted above. Commenters also requested that, if alternative hierarchies are implemented, consumers be made aware of the consequences of selecting this default re-enrollment option both at the time of initial enrollment when a person could opt into this and also prior to re-enrollment.
Some commenters noted that the proposal may not keep consumers actively engaged in the process of re-enrollment and making coverage choices. Commenters emphasized that, if alternative hierarchies are implemented, Exchanges must educate consumers at the time of enrollment about their choice and what it may mean for their future health coverage and costs. Commenters stressed that consumer notices should emphasize the benefit of returning to the Exchange during the open enrollment period to examine plan options and encouraged focus testing to determine messaging that best communicates the implications of opting into a re-enrollment hierarchy.
We received a few alternative ideas for re-enrollment hierarchies, including basing re-enrollment on factors consumers identify as most important to them. One commenter recommended
Finally, several commenters emphasized the need to continue to focus on the development of the current redetermination and re-enrollment process. Commenters noted improvements should be made to the technical ability to support automatic eligibility redeterminations, particularly those including determinations for advance payments of the premium tax credit and cost-sharing reductions. We received several comments recommending that HHS wait to implement any alternative hierarchies until the current enrollment hierarchies have operated for a few years and more information and lessons can be gleaned from the experience. In contrast, a few commenters, who supported the proposal, encouraged early adoption of the policy, and one commenter suggested that consumers would not want to wait to take advantage of this low-cost option.
We proposed to amend § 155.400(e) to explicitly provide for an Exchange to establish a standard policy for setting deadlines for payment of the first month's premium.
For the FFEs, we proposed several possible payment deadlines tied to the coverage effective date for regular effective dates (meaning coverage effective the first day of the following month for plan selections made between the first and fifteenth of the month, and coverage effective the first day of the second month following a plan selection made between the 16th and the end of the month). Some options we considered included providing consumers until the coverage effective date, or the day before the coverage effective date, to make their first month premium payment. Alternatively, we considered providing consumers additional time after the coverage effective date to make their premium payment (5 days, 10 days, or 30 days after the coverage effective date). We sought comment on the period of time following the coverage effective date an issuer could be required or permitted to accept a first month's premium payment for that coverage.
With respect to effective dates other than regular effective dates, meaning retroactive or accelerated coverage effective dates resulting from enrollment under certain special enrollment periods (including birth and marriage), resulting from the resolution of appeals, or resulting from amounts newly due for prior coverage based on issuer corrections of under-billing, we considered a premium payment deadline of 10–15 business days from when the issuer receives the enrollment transaction.
We sought comment on which proposed premium payment deadlines give issuers an acceptable amount of time to send an invoice and allow for timely payment by the consumer, and give consumers sufficient time to make the payment. We also sought comment on how such a policy would likely affect issuer operations and consumers' ability to obtain coverage.
We noted that because this rulemaking will likely not be finalized until after open enrollment for 2015, any such deadlines would not be applicable for that open enrollment period.
We are finalizing the provisions proposed in § 155.400 of the proposed
In new § 155.400(e)(1)(i), we establish a policy for the FFEs that premium payment deadlines for the first month's premium for a new enrollment must be no earlier than the coverage effective date, but no later than 30 calendar days from the coverage effective date in cases where coverage becomes effective with regular coverage effective dates, as provided for in § 155.410(f) and § 155.420(b)(1).
We also added § 155.400(e)(1)(ii) whereby the premium payment deadlines for the first month's premium must be 30 calendar days from the date the issuer receives the enrollment transaction, in cases where coverage becomes effective under special effective dates, as provided for in § 155.420(b)(2).
This policy gives issuers flexibility while allowing additional time for individuals who may have circumstances that would not otherwise provide standard timeframes for payment.
We also received several comments suggesting that for irregular effective dates, the premium payment date should be 10–15 business days from when the consumer receives the invoice from the issuer, not when the issuer receives the enrollment transaction. Commenters suggested that this would create a level playing field for consumers since some issuers may take longer to process their enrollment transactions
In § 155.410, we proposed to amend paragraph (e), which provides the dates
We are finalizing the provisions only with regard to the 2016 benefit year, with a modification. In response to comments, at § 155.410(e)(2), we are providing that for the benefit year beginning on January 1, 2016, the annual open enrollment period begins on November 1, 2015 and extends through January 31, 2016 (2 weeks earlier but the same length as the open enrollment period for the 2015 benefit year). Additionally, we have revised the proposed language at § 155.410(f)(2) and added three paragraphs to require that for the 2016 benefit year, the Exchange must ensure that coverage is effective January 1, 2016, for QHP selections received by the Exchange on or before December 15, 2015, February 1, 2016, for QHP selections received by the Exchange from December 16, 2015, through January 15, 2016, or March 1, 2016, for QHP selections received by the Exchange from January 16, 2016, through January 31, 2016.
A few commenters supported establishing the annual open enrollment period during the last quarter of the calendar year, but recommended slight variations on the proposed timeframe. For example, one commenter recommended the annual open enrollment period run November 1 through December 15, suggesting that a longer enrollment period does not lead to better consumer decisions and that issuers may benefit from a later start to the annual open enrollment period. Another commenter indicated that ending the enrollment period on December 15 was too late to accommodate the operational steps necessary to ensure a universal January 1 coverage effective date, particularly given the complexity associated with managing active selections, automatic renewals, and other changes. The commenter suggested ending the enrollment period on November 30 to give more time to issuers and Exchanges to handle renewals. A few commenters recommended aligning with Medicare's annual open enrollment period, October 15 through December 7. In contrast, a few commenters requested that HHS extend the proposed annual open enrollment period to the end of January to capture additional consumers. Of particular concern for these commenters were consumers who are auto-renewed into a new plan and will not have an opportunity to use the plan before the end of the annual open enrollment period, following which they could be unable to shop for coverage, absent a special enrollment period (SEP).
Finally, a few commenters representing State-based Exchanges (SBEs) and health insurance issuers shared concerns that shifting the annual open enrollment period to October would significantly strain timelines for product development, rate setting, product filing, and review. These groups questioned whether notices, regulations, and templates would be completed by HHS in time for issuers and States to fulfill their obligations prior to annual open enrollment. Commenters noted that starting the annual open enrollment period earlier would increase administrative burden and constrain resources and requested giving States and issuers additional time to prepare.
Aligning more closely with the calendar year permits consumers to plan financially on a calendar year basis. We also note that consumers who qualify for financial assistance can immediately receive it with their premium upon enrollment, and consumers also may be given additional time in which to pay their initial premium, pursuant to the amendment to § 155.400(e) described in section III.E.4.a of this final rule, both of which should help alleviate low consumer financial liquidity.
In § 155.420, we proposed certain provisions relating to special enrollment periods. We proposed to revise paragraphs (b)(2)(i), (b)(2)(ii), (b)(2)(iv), and add paragraphs (b)(2)(v), (b)(2)(vi), and (b)(2)(vii), which pertain to effective dates for special enrollment periods; to amend paragraphs (c)(2)(i) and (c)(2)(ii), which pertain to availability and length of special enrollment periods, and to revise paragraphs (d)(1)(ii), (d)(1)(v), (d)(2), (d)(4), and remove paragraph (d)(10), which pertain to specific types of special enrollment periods. We also proposed to delete the option for consumers to choose a coverage effective date of the first of the month following the birth, adoption, placement for adoption or placement in foster care and to permit the Exchange to allow a qualified individual or enrollee to elect a regular coverage effective date in accordance with paragraph (b)(1) of this section.
We proposed to amend paragraph (b)(2)(iv) to allow persons who make a permanent move as described in paragraph (d)(7) to have a coverage effective date of the first day of the month following the move if plan selection is made before or on the day of the loss of coverage and, effective January 1, 2016, allow consumers advanced access to the special enrollment period where a qualified individual or enrollee, or his or her dependent, gains access to new QHPs due to a permanent move under paragraph (d)(7).
In addition, we proposed to add new paragraphs (b)(2)(v) and (b)(2)(vi), which pertain to effective dates for coverage that must be obtained under court orders, including child support orders, and the death of an enrollee or his or her dependent. In paragraph (b)(2)(v), we proposed to require an Exchange to make coverage effective the first day the court order is effective to minimize any gap in coverage the individual may experience and allow Exchanges to provide consumers with a choice for regular effective dates under paragraph (b)(1). In paragraph (b)(2)(vi), we proposed to require that an Exchange ensure coverage is effective the first day of the month following a death of the enrollee or his or her dependent, and at the option of the Exchange and the consumer, allow for regular effective dates under paragraph (b)(1) of this section.
We proposed to combine paragraphs (c)(2)(i) and (c)(2)(ii) to a new paragraph (c)(2) to simplify the regulatory text. In addition, we proposed to allow
We proposed to amend paragraph (d)(1)(ii) so that this special enrollment period is available for a qualified individual or his or her dependent who, in any year, has coverage under a group health plan or an individual plan with a plan or policy year that is not offered on a calendar year basis. We proposed to add paragraph (d)(2)(i) to include situations where a court order requires a qualified individual to cover a dependent or other person. We also proposed to add paragraph (d)(2)(ii) to allow enrollees who experience a loss of a dependent or lose dependent status through legal separation, divorce, or death to be determined eligible for a special enrollment period. We proposed to amend paragraph (d)(4), to include situations where a non-Exchange entity is providing enrollment assistance. Concurrently, we proposed to strike paragraph (d)(10) which provides a separate special enrollment period for non-Exchange entity misconduct.
We proposed to add paragraph (d)(6)(iv) to create a special enrollment period for a qualified individual in a non-Medicaid expansion State who was previously ineligible for advance payments of the premium tax credit solely because the qualified individual had a household income below 100 percent of the FPL, who was ineligible for Medicaid during that same timeframe, and experienced a change in household income that made the individual newly eligible for advance payments of the premium tax credit.
We also sought comments on other situations that may warrant a special enrollment period, particularly situations specific to the initial years in which consumers have an opportunity to purchase coverage through an Exchange.
We are finalizing paragraph (b)(2)(i) with a minor modification. Specifically, we are retaining the option of the Exchange to allow consumers to elect a coverage effective date of the first of the month following a birth, adoption, placement for adoption, or placement in foster care or on the date of the birth, adoption, placement for adoption, or placement in foster care. These options are in addition to the option for regular effective dates in paragraph (b)(1) of this section as proposed. We are amending paragraph (b)(2)(iv) to allow these persons to have a coverage effective date of the first day of the month following the move if plan selection is made before or on the day of the move. We are adding paragraph (b)(2)(v) to make coverage effective the first day of the court order and to allow Exchanges to provide consumers with a choice for a regular effective date, in accordance with paragraph (b)(1). We are adding paragraph (b)(2)(vi) to require Exchanges to ensure coverage is effective the first day of the month following the date of plan selection due to a death of the enrollee or his or her dependent and to allow Exchanges to provide consumer with a choice for a regular effective date, as specified in paragraph (b)(1). The proposed paragraph (b)(2)(vi) incorrectly referenced paragraph (d)(2)(iv), which was changed to correctly reference paragraph (d)(2)(ii) for loss of a dependent or dependent status. Additionally, we corrected paragraph (b)(2)(vi) to state that coverage will be effective following the date of plan selection, instead of following the date of death.
We are combining paragraphs (c)(2)(i) and (c)(2)(ii) to a new paragraph (c)(2), and, in paragraph (c)(2), we are also adding a reference in this paragraph to individuals who receive a special enrollment period under paragraph (d)(7) to allow these consumers to report a permanent move 60 days in advance of the move for the purposes of receiving a special enrollment period to reduce the likelihood of a gap in coverage. After consideration of comments received, persons who are eligible for a special enrollment period under paragraph (d)(7) will be able to exercise this flexibility effective January 1, 2017, or earlier at the option of the Exchange. In paragraph (c)(3), we are removing reference to paragraph (d)(10), which is now included in paragraph (d)(4).
As proposed, in paragraph (d)(1)(ii), we are deleting the expiration date of 2014 for non-calendar year health insurance policies. We are adding paragraph (d)(2)(i), which includes when a qualified individual gains a dependent or becomes a dependent through marriage, birth, adoption, placement for adoption, placement in foster care, or through a child support or other court order. At the option of the Exchange, we are adding paragraph (d)(2)(ii) for where an enrollee loses a dependent or is no longer considered a dependent through divorce or legal separation, as defined by State law. Paragraph (d)(4) is amended to include situations where a non-Exchange entity is providing enrollment assistance. Concurrently, we proposed to strike paragraph (d)(10) which provides a separate special enrollment period for non-Exchange entity misconduct. We are adding paragraph (d)(6)(iv) to include qualified individuals in non-Medicaid expansion States who were previously ineligible for advance payments of premium tax credits solely because the individual had household income under 100 percent of the FPL, who was ineligible for Medicaid during that same timeframe, and experiences a change in household income to become eligible for advance payments of the premium tax credit.
Under our current rules, § 155.430(b)(1) requires an Exchange to permit an enrollee to terminate his or her coverage in a qualified health plan (QHP) following appropriate notice to the Exchange or the QHP. We proposed to amend this paragraph by adding a sentence to clarify that, to the extent the enrollee has the right to cancel the coverage under applicable State laws, including “free look” cancellation laws—that is, laws permitting cancellation within a certain period of time, even following effectuation of the enrollment, the enrollee may do so, in accordance with the requirements of such laws. Furthermore, we proposed to amend § 155.430(d)(2) to add a new paragraph (d)(2)(v) allowing a retroactive termination effective date when an enrollee initiates the termination, if specified by applicable State laws, such as “free look” provisions.
Additionally, we proposed to amend § 155.430(b)(1) by removing the language requiring the appropriate notice to the Exchange or QHP since the notice requirement is addressed in § 155.430(d) and this would give greater flexibility for other enrollee initiated terminations where appropriate notice is not defined.
We also proposed to explicitly state that the requirement for Exchanges to ensure appropriate actions are taken in connection with retroactive terminations, currently set forth in paragraph (d)(6) regarding special enrollment periods, applies to all retroactive terminations, including valid cancellations of coverage under a “free look” law. To do so, we proposed to move the applicable language to a new paragraph (d)(8). We also proposed to add reconciliation of Exchange user fees to the list of items Exchanges would need to address. Under that requirement, the Exchange will ensure that appropriate actions are taken to make necessary adjustments to advance payments of the premium tax credit, cost-sharing reductions, Exchange user fees, premiums, and claims, while adhering to any State law. We noted that, under our proposal, the enrollee would not become eligible to receive a special enrollment period as a direct result of the “free look” cancellation.
We also proposed to add a new paragraph (b)(1)(iii) which would require Exchanges to establish processes for a third party to report the death of a consumer.
We noted that we interpret market-wide guaranteed availability and renewability requirements to mean that a QHP offered through the Exchange must generally be available and renewable outside the Exchange. We proposed to make changes to Exchange regulations that could be construed to limit coverage in a QHP to coverage through the Exchange. For example, we proposed to amend Exchange regulations referencing “termination of coverage” so that they appropriately refer to termination of enrollment through the Exchange and not necessarily termination of the coverage altogether.
We are finalizing the provisions proposed in § 155.430 of the proposed rule, with a minor modification. We are revising § 155.430(b)(1)(i) to specify that an enrollee has a right to terminate, and not just cancel coverage according to any applicable State law. Cancellation is a specific type of termination and, as further explained below, we want to accommodate State laws that provide for termination, not just cancellation. We also corrected a typographical error in § 155.430(b)(1)(iii). We also make conforming revisions to §§ 155.430, 155.735, 156.270, 156.285 and 156.290 of the Exchange and SHOP regulations to align them with our interpretation of the guaranteed availability and guaranteed renewability requirements, changing references to “coverage” to now also refer to “enrollment through the Exchange,” “enrollment through the SHOP,” or “enrollment,” as applicable.
We acknowledge the operational concerns of commenters, but note that these revisions are simply technical clarifications to eliminate potential conflict with the requirements that currently apply to issuers under sections 2702 and 2703 of the PHS Act. Furthermore, it is anticipated that, in most situations involving termination by the Exchange, such as decertification of the QHP or non-payment of premium, the issuer will know the reason for the termination. When the issuer knows the reason for Exchange termination and it is not a basis for non-renewal or termination of the enrollee's coverage, the issuer generally must continue the coverage outside the Exchange, at the option of the enrollee, in order to satisfy the issuer's responsibilities under the guaranteed renewability requirements, unless an exception applies. When the issuer does not know the reason for termination of an enrollee's Exchange enrollment, the issuer should continue the enrollee's coverage outside the Exchange if approached by the enrollee to do so, unless following investigation, the reason for the termination will permit the issuer to terminate the coverage.
In § 155.605, we proposed amendments to two hardship exemptions and a correction to a cross-reference. First, we proposed to amend § 155.605(g)(3) to permit an individual with gross income below the filing threshold and who is not a dependent of another taxpayer to qualify for a hardship exemption through the tax filing process and without having to obtain an exemption certificate number (ECN) from the Exchange. Second, we proposed amending § 155.605(g)(6)(i) to correct the citation to 42 CFR 447.50 by changing it to 42 CFR 447.51, which cross-references the Medicaid definition for Indian. Third, we proposed new paragraph § 155.605(g)(6)(iii) to align the exemption process for those individuals who are eligible for services through the Indian Health Service (IHS), a Tribal health facility, or an Urban Indian organization (collectively, ITU) with the process available to members of Federally-recognized Tribes. Specifically, the proposed amendment will provide individuals who are eligible for services through an ITU to claim an exemption on their Federal income tax return without obtaining an ECN.
We are finalizing the provisions as proposed.
Under section 5000A of the Code, an individual must have minimum essential coverage for each month, qualify for an exemption, or make a shared responsibility payment with his or her Federal income tax return. Section 5000A of the Code and section 1311(d)(4)(H) of the Affordable Care Act authorizes the Secretary to determine individuals' eligibility for exemptions, including the hardship exemption. Under section 5000A(e)(1) of the Code, an individual is exempt if the amount that he or she would be required to pay for minimum essential coverage (required contribution) exceeds a particular percentage (the required contribution percentage) of his or her actual household income for a taxable year. In addition, under § 155.605(g)(2) an individual is exempt if his or her required contribution exceeds the required contribution percentage of his or her projected household income for a year. Finally, under § 155.605(g)(5), certain employed individuals are exempt if, on an individual basis, the cost of self-only coverage is less than the required contribution percentage but the aggregate cost of self-only coverage through employers exceeds the required contribution percentage and no family coverage is available through an employer at a cost less than the required contribution percentage.
The required contribution percentage for 2014 is 8 percent under section 5000A(e)(1)(A) of the Code. Section 5000A(e)(1)(D) of the Code and 26 CFR 1.5000A–3(e)(2)(ii) provide that for plan years after 2014, the required contribution percentage is the percentage determined by the Secretary that reflects the excess of the rate of premium growth between the preceding calendar year and 2013, over the rate of income growth for that period. In the 2015 Market Standards Rule, we established a method for determining the excess of the rate of premium growth over the rate of income growth each year, and published the 2015 rate. We stated that future adjustments would be published annually in the HHS notice of benefit and payment parameters.
Under the method previously established, the rate of premium growth over the rate of income growth for 2016 is the quotient of (x), which is equal to one plus the rate of premium growth between the preceding year (in this case, 2015), and 2013, carried out to ten significant digits, divided by (y), which is equal to one plus the rate of income growth between the preceding year (2015), and 2013, carried out to ten significant digits.
Under the methodology described above, the total rate of premium growth for the 2-year period from 2013–2015 is 1.0831604752, or 8.3 percent. We describe the methodology for obtaining this number below in § 156.130(e). In the 2015 Market Standards rule, we also established a methodology for calculating the rate of income growth for the purpose of calculating the annual adjustment to the required contribution percentage.
The measure of income growth is based on projections of per capita Gross Domestic Product (GDP) used for the National Health Expenditure Accounts (NHEA), which is calculated by the CMS Office of the Actuary. Accordingly, using the NHEA data, the rate of income growth for 2016 is the percentage (if any) by which the most recent projection of per capita GDP for the preceding calendar year ($56,660 for 2015) exceeds the per capita GDP for 2013, ($53,186), carried out to ten significant digits. The total rate of income growth for the 2-year period from 2013–2015 is estimated to be 1.0653179408 or 6.5 percent. We note that the 2013 per capita GDP used for this calculation has been updated to reflect the latest NHEA data.
Thus, the excess of the rate of premium growth over the rate of income growth for 2013–2015 is 1.0831604752/1.0653179408, or 1.0167485534, or 1.7 percent. This results in a required contribution percentage for 2016 of 8.00*1.0167485534, or 8.13 percent, when rounded to the nearest one-hundredth of one percent.
We received no comments on the calculation of the required contribution percentage and are therefore finalizing the percentage as proposed.
We proposed to amend § 155.700(b) such that the previous definition of “group participation rule” would conform with the terminology we proposed to use in § 155.705(b)(10). Specifically, we proposed to modify the term to refer to a “group participation rate,” which is a minimum percentage of all eligible individuals or employees of an employer that must be enrolled.
We received no comments on this proposal and we are finalizing this amendment as proposed.
In § 155.705, we proposed to redesignate paragraph (b)(4)(ii)(B) as new paragraph (b)(4)(ii)(C), redesignate paragraph (b)(4)(ii)(A) as new paragraph (b)(4)(ii)(B), add new paragraph (b)(4)(ii)(A), and amend paragraphs (b)(4)(i)(B), (b)(7), and (b)(10).
In the proposed amendment to paragraph (b)(4)(i)(B) and proposed new paragraph (b)(4)(ii)(A), we proposed to permit the SHOP to assist a qualified employer in the administration of continuation coverage in which former employees seek to enroll through the SHOP. We proposed that where a qualified employer is offering Federal or State continuation coverage,
We considered whether the FF–SHOP should accept premium payment using a credit card. Currently, qualified employers participating in the FF–
We also proposed to revise paragraph (b)(7) to align the SHOP regulations with the Protecting Access to Medicare Act of 2014 (Pub. L. 113–93), which repealed requirements related to deductible maximums for employer-sponsored coverage at section 1302(c)(2) of the Affordable Care Act. This proposal would remove the only reference in the SHOP regulations to the requirements of Affordable Care Act section 1302(c)(2). We did not receive any comments on the proposed revisions to paragraph (b)(7) of this section and are finalizing this proposal as proposed.
In paragraph (b)(10), we proposed to modify the calculation of minimum participation rates in the SHOP. We proposed that a SHOP (either a State-based or an FF–SHOP) that elects to establish a minimum participation rate would be required to establish a single, uniform rate that applies to all groups and issuers in the SHOP, rather than establishing general rules about minimum participation rates or a threshold over which the minimum percentage may not be raised. We also proposed that if a SHOP authorizes a minimum participation rate, such a rate would have to be based on the rate of employee participation in the SHOP and in coverage through another group health plan, governmental coverage (such as Medicare, Medicaid or TRICARE), coverage sold through the individual market, or in other minimum essential coverage, and not on the rate of employee participation in any particular QHP or QHPs of any particular issuer. We proposed that State-based SHOPs would be expected to conform to the proposal by its effective date.
In paragraph (b)(10)(i), we proposed to amend existing language about employees accepting coverage under the employer's group health plan to instead refer to employees accepting coverage offered by a qualified employer to better account for employee choice.
We also proposed to amend paragraph (b)(10)(i) regarding how the minimum participation rate would be calculated in the FF–SHOP. We proposed to calculate the minimum participation rate in the FF–SHOP as the number of full-time employees accepting coverage offered by the qualified employer through the SHOP plus the number of full-time employees who are enrolled in coverage through another group health plan, in governmental coverage (such as Medicare, Medicaid or TRICARE), in coverage sold through the individual market, or in other minimum essential coverage, divided by the number of full-time employees offered coverage through the SHOP.
We sought comment on whether this definition of which employees would be included in the calculation should be extended beyond the SHOP to the entire small group market to create uniformity among issuer practices and prevent further gaming by issuers through their use of non-standard definitions for other acceptable coverage.
We are finalizing the proposed amendments to paragraph (b)(10) with modifications. We are modifying the proposed amendments to the language following (b)(10); adding the amendments we proposed at paragraph (b)(10)(i) at a new paragraph (b)(10)(ii); amending current paragraph (b)(10)(i) to reflect that it will remain in effect for plan years beginning prior to January 1, 2016; and redesignating paragraph (b)(10)(ii) as (b)(10)(iii) and making a minor conforming amendment to that paragraph to reflect the addition of new paragraph (b)(10)(ii). The modifications clarify that the amendments to the minimum participation rate calculation methodology requiring counting of employees accepting coverage offered by the qualified employer through the SHOP, and counting of employees enrolled in coverage through another group health plan, in governmental coverage (such as Medicare, Medicaid, or TRICARE), in coverage sold through the individual market, or in other minimum essential coverage, will apply only to the FF–SHOP, effective for plan years beginning on or after January 1, 2016. For plan years beginning prior to January 1, 2016, the FF–SHOP will apply the methodology at current (b)(10)(i). We are also modifying paragraph (b)(10)(i) to explain that former employees would be excluded from the calculation of minimum participation rates in the FF–SHOP under the methodology that will remain in effect for plan years beginning prior to January 1, 2016, to ensure that the same methodology currently being used will continue to be used after the modification to the definition of qualified employee in this rule takes effect. State-based SHOPs and small group markets outside of the Exchanges are not expected to conform to the amended calculation methodology.
Many commenters requested that HHS align SHOP rules with applicable COBRA standards and work with the applicable agencies to ensure clarity. These commenters expressed concern that a lack of harmony between the SHOP rules, COBRA standards, and requirements from other Federal agencies would lead to confusion. One commenter requested HHS specify which IRS rules are applicable.
To further align with existing COBRA requirements, including COBRA eligibility for dependents and former dependents, we are modifying the language of paragraph (b)(4)(ii)(A) of § 155.705 to permit the collection of such premiums from any person enrolled in continuation coverage through the SHOP consistent with applicable law and the terms of the group health plan. For improved clarity, we are also replacing the reference in proposed § 155.705(b)(4)(ii)(A) to “Federally mandated continuation coverage” with a reference to continuation coverage required under 29 U.S.C. 1161,
We continue to examine applicable State law to determine the feasibility of the FF–SHOP providing this service for both State and Federal continuation coverage. Variation in State continuation coverage laws would add substantial complexity to the FF–SHOP's implementation of premium collection for State continuation coverage. Therefore, the FF–SHOP may more quickly provide relief to small employers by first supporting COBRA continuation coverage administration while HHS determines how it may best support State-mandated continuation coverage.
HHS continues to believe that the flow of funds through the SHOP best supports the administration of employee choice and therefore is not modifying existing requirements related to the flow of funds through the SHOP.
While we received some comments supporting the extension of our proposed policy to the entire small group market, several commenters opposed such an extension, including State-based SHOPs. One commenter opposed our proposal because SHOP issuers are protected by programs that issuers not participating in the SHOP are not protected by, such as the risk corridors program. Several of these commenters stated that the off-Exchange market should use a methodology that works best for their market and State, and that it should be up to the State to establish how to calculate the minimum participation rate inside and outside of the Exchanges.
In addition to these comments, we received queries on how HHS would verify the coverage of individuals included in the calculation of the minimum participation rate. Several commenters also asked for details on the one-month exception period for minimum participation rates.
We note that consistent with current § 155.705(b)(10)(ii) (which is
The final rule does not modify or eliminate the one-month period between November 15 and December 15 of each year, during which employer groups may enroll in coverage notwithstanding any employer contribution or group participation rules under § 147.104(b)(1)(i)(B). Thus, SHOPs may not apply the minimum participation rate to prevent initial enrollments and renewals that occur during this one-month period.
We do not believe the proposed modification to calculation of the FF–SHOP minimum participation rate will result in significant adverse selection. In some States in which the FF–SHOP currently operates, its minimum participation rate is more restrictive on enrollment than the rate currently generally applied by issuers in the market. The proposed modifications to the FF–SHOP's minimum participation rate will align the calculation of the rate with current practices in these States by including other sources of coverage in the calculation. We acknowledge that this change will make the FF–SHOP's minimum participation rate more inclusive than minimum participation rates in the market in some other States. However, under current law, no group may be excluded from the small group market altogether because it fails to meet a minimum participation rate. Any group may enroll during the annual month-long period under § 147.104(b)(1)(B) during which no minimum participation rate can be applied to deny coverage. Further, the new methodology for the participation rate calculation is only more permissive in that it lets in groups with additional sources of other coverage. There is no basis to suggest that such a group represents worse than average risk.
In § 155.710, we proposed to amend paragraph (e) to specify that where an employer has offered dependent coverage, a qualified employee would be eligible to enroll his or her dependents in coverage through the SHOP.
We received a comment supporting our proposal. We are finalizing our amendment as proposed.
In § 155.720, we proposed to remove paragraph (b)(7),which requires all SHOPs to establish effective dates for employee coverage in the SHOP, and to make minor conforming changes to the list structure in paragraph (b). Current § 155.720(b)(7) is redundant in light of the proposed requirements to establish effective dates under § 155.725, which we are finalizing as proposed.
We received no comments on these proposed amendments. We are finalizing the amendments as proposed.
We proposed to amend paragraph (e), which provides that issuers must notify SHOP consumers regarding coverage effective dates so that the provision would refer to enrollees and not qualified employees, and proposed to remove a reference in this section to § 156.260(b), in keeping with the proposed amendments to § 155.725 regarding coverage effective dates. Under the proposal, issuers would be required to provide this notice to anyone who enrolled in coverage through the SHOP under the proposed amendments to the definitions of qualified employee and enrollee, including dependents (including a new dependent of the employee, when the dependent separately joins the plan), former employees of a qualified employer, and certain business owners. We noted that the notices required under this proposal could be incorporated into existing notifications that QHPs provide to their new customers, for example in a welcome document. We also proposed a conforming amendment to § 156.285(c) to ensure that QHP issuers participating in the SHOP would provide notice to a new enrollee of the enrollee's effective date of coverage.
We are finalizing the provisions with the modifications noted below.
Amending the definition of an enrollee and amending § 155.720(e) to require notice to enrollees will create additional notice obligations for issuers. To permit issuers to update their systems and fulfill this requirement, we will provide issuers until plan years beginning on or after January 1, 2017 to fulfill the requirement of sending
We are also making minor changes to the wording of the proposed requirement at 156.285(c)(3), so that the final rule refers to a requirement to “notify” new enrollees, rather than to “provide” them “with notice.”
We proposed to amend paragraphs (a), (g), (h), and (j)(5) of § 155.725 and § 156.285(b)(1) and (b)(4) to provide clarity regarding the effective dates for coverage that all SHOP Exchanges must establish. First, we proposed to remove the reference at current § 155.725(a)(1) to the start of the initial open enrollment period for 2014 coverage, and the reference in current § 155.725(a)(2) to § 156.260. We proposed to remove the reference to effective dates under § 156.260 because we are proposing to specify effective dates in § 155.725 or to more directly cross-reference the appropriate effective date. Second, we proposed to amend § 155.725(h) so that SHOPs would need only establish effective dates for employees enrolling in coverage during the initial group enrollment and the employee annual open enrollment period, rather than for special enrollment periods. At proposed paragraph (h)(2), we also codified the effective dates for coverage in the FF–SHOP for enrollments during initial and annual open enrollment periods. Specifically, we proposed to include language in the SHOP regulations specifying the same effective dates that were previously adopted for the FF–SHOP under our interpretation of the cross reference in § 156.285(b)(4) to § 156.260, which in turn cross-references § 155.410(c). We noted that the dates set forth in § 155.725(h)(2) would apply only to the FF–SHOP and State-based SHOPs would be free to establish their own effective dates for initial and annual open enrollment.
Third, we proposed several amendments to paragraph § 155.725(g) regarding enrollment for newly qualified employees. A newly qualified employee is an employee who becomes eligible to participate in the employer's group health plan outside of a qualified employer's initial or annual enrollment period; for example, because he or she was hired outside of those periods. We proposed to move paragraph (g) to paragraph (g)(1), and proposed amendments to the existing language to make explicit our interpretation of current paragraph (g), which is that a newly qualified employee becomes eligible for an enrollment period that begins on the first day of becoming a newly qualified employee regardless of whether the employee is subject to a waiting period. Additionally, we proposed that the duration of a newly qualified employee's enrollment period be at least 30 days. Where the employee is subject to a waiting period in excess of 45 days, we proposed that the duration of the employee's enrollment period extend until 15 days before what would be the conclusion of the waiting period if the employee selected a plan on the first day of becoming eligible. We noted that if an employee waits to choose a plan until the end of such an extended enrollment period, this could have the effect of further delaying the effective date of coverage, consistent with § 147.116(a). We also proposed to add a new paragraph (g)(2) in § 155.725 to provide that the effective date for a newly hired employee would be determined using the same rule for initial and open enrollments that would be established by the SHOP under proposed § 155.725(h). Thus, in the FF–SHOP, coverage effective dates for newly qualified employees would be established according to § 155.725(h)(2): Plan selections made between the first and the fifteenth day of any month would be effective the first day of the following month, and plan selections made between the 16th and the last day of any month would be effective the first day of the second following month. A newly qualified employee may also be subject to a waiting period under § 147.116, however, and in such cases, the effective date may be on the first day of a month that is later than the month in which coverage would take effect under the usual rules established by the SHOP under § 155.725(h). However, in no case could the effective date fail to comply with the limitations on waiting period durations at § 147.116 of this subchapter.
Fourth, we proposed to amend paragraph § 155.725(j)(5) to make it clearer that the effective dates for special enrollment periods in the SHOP should be determined according to § 155.420(b).
Fifth, we proposed to harmonize § 156.285(b)(1) and (4) with the proposed amendments to effective dates described above, to specify that QHP issuers must abide by the effective dates established under § 155.725, and must enroll qualified employees in accordance with the qualified employer's initial and annual enrollment periods in § 155.725.
We also proposed to amend § 155.725(b) to harmonize rolling enrollment in the SHOP with the regulations applicable to guaranteed availability in States with merged individual and small group markets. Section 147.104(f), as moved from § 147.104(b)(2) by this rule, requires that all individual and small group health insurance coverage sold in a State with merged individual and small group risk pools be offered on a calendar year basis, meaning that it must end on December 31 of the year in which the policy was issued. Section 155.725(b), in contrast, requires that SHOPs permit qualified employers to purchase coverage for a small group at any point throughout the calendar year, and that SHOPs ensure that a participating group's plan year lasts for 12 months beginning with the first effective date of coverage. Section 155.725(b) was intended to ensure that qualified employers can offer health insurance through the SHOP at any point during the year while receiving a guaranteed rate 12 months following the purchase of coverage, consistent with the current practice in the small group market. We proposed to harmonize these two provisions in States with merged markets, by proposing that SHOP plan years in a State with merged risk pools would terminate on December 31st of the year in which they began, even if certain qualified employers' plan years would thus be shorter than 12 months. This proposal would not affect a small employer's ability to enroll in coverage at any point in the year. Instead, it would standardize the renewal date of such a plan in a State with merged risk pools at the beginning of each calendar year.
We also proposed to modify paragraph (i) to permit a SHOP to elect to renew a qualified employer's offer of coverage where the employer has taken no action during its annual election period to modify or withdraw the prior year's offer of coverage. The qualified employer's offer would not be automatically renewed under this proposal if the employer is no longer eligible to participate in the SHOP. Renewal of the coverage offer would
Finally, we proposed to add paragraph (k) to make clear that SHOP coverage may not be effectuated if the policy may not be issued to the employer because the group fails to meet an applicable minimum participation rate calculated at the time of initial group enrollment or renewal, subject to § 147.104(b)(1)(i)(B).
We did not receive comments on the proposed amendments to § 156.285(b)(1) and (4), and are finalizing them as proposed. We are also finalizing the provisions under § 155.725 as proposed.
An employer is considered eligible to participate in the SHOP if it is a “small employer” as defined in § 155.20 and if it meets the requirements set forth at § 155.710(b). To qualify, employers must have at least one employee who is not the owner or the spouse of the owner.
In § 155.735, we proposed to amend paragraph (c)(2)(ii) to specify that in the FF–SHOP, a termination of coverage due to non-payment of premiums would be effective on the last day of the month for which the FF–SHOP received full payment. Prior to this proposal, the effective date of such a termination was not specified in the rule. We are finalizing this policy as proposed.
In paragraph (c)(2)(iii), we proposed to specify that, in the FF–SHOP, a qualified employer whose coverage was terminated for non-payment of premiums could be reinstated in its prior coverage only once per calendar year. We are finalizing this provision as proposed.
Paragraphs (c)(2)(iv) and (c)(3) are added in light of comments related to COBRA continuation coverage, as discussed in the preamble discussion of § 155.705.
In paragraphs (d)(1)(iii) and (g) of § 155.735 and in § 156.285(d)(1)(ii), we proposed to amend certain existing notice requirements by transferring them from QHP issuers to the SHOP. Under current § 156.285(d)(1)(ii), a QHP issuer must notify an enrollee and a qualified employer if the enrollee or employer is terminated due to a loss of eligibility, due to a qualified employer's non-payment of premiums, due to a rescission of coverage for fraud or misrepresentation of material fact in accordance with § 147.128, or because the QHP issuer elects not to seek recertification with the Exchange for its QHP. We proposed to transfer two of these notice requirements to the SHOP. At § 155.735(g)(1), we proposed that the SHOP be required to provide notice to the enrollee if an enrollee is terminated due to non-payment of premium or a loss of eligibility for participation in the SHOP, including when an enrollee loses eligibility due to a qualified employer's loss of eligibility. We also proposed at § 155.735(g)(2) that the SHOP be required to provide notice to qualified employers for termination due to nonpayment of premiums or where applicable, due to loss of the employer's eligibility. Proposed § 155.735(g)(2) would apply to terminations for a reason other than the employer reporting information to the SHOP resulting in a loss of eligibility.
Through the proposed amendments to the definition of “enrollee” discussed above, we also proposed to expand the class of people who would receive notices under the proposed amendments to § 155.735 and § 156.285(d)(1)(ii). Additionally, we proposed that QHP issuers in the SHOP would continue to be required to provide notice to qualified employers and enrollees when an enrollee's coverage is terminated due to a rescission in accordance with § 147.128, and when an enrollee's coverage is terminated due to an election by a QHP issuer not to seek recertification with the Exchange for its QHP. We proposed to amend § 155.735(d)(1)(iii), which currently refers to terminations of SHOP coverage due to a QHP's termination or decertification, by adding a reference to terminations of SHOP coverage due to the non-renewal of a QHP's certification. By proposing to include a cross-reference to § 155.735(d)(1)(iii) in § 156.285(d)(1)(ii), we also proposed to expand the notice a QHP issuer must provide regarding the discontinuation of a product in which a qualified employee is enrolled to include circumstances where the QHP is terminated or is decertified as described in § 155.1080. We are finalizing the provisions with modifications noted below.
We also proposed that each notice required under § 155.735(g) and the proposed amendments to § 156.285(d)(1)(ii) would have to be provided by the SHOP or QHP issuer promptly and without undue delay. We explained that we would consider an electronic notice that was sent no more than 24 hours after the SHOP or QHP issuer determined coverage was to be terminated to have been provided “promptly and without undue delay.” In the case of paper notices, we would consider notices that were mailed no later than 48 hours after the SHOP determined coverage was to be terminated to have been provided “promptly and without undue delay.” We have revisited these deadlines in light of comments received, and are finalizing the proposal with a modification to allow 3 business days for electronic notices and 5 business days for mailed notices. New paragraph § 155.735(g) and the corresponding amendments related to issuer notice requirements at § 156.285(d)(1)(ii) are effective on January 1, 2016.
We are also finalizing amendments to § 155.735 and § 156.285 to conform with our interpretation of the guaranteed availability and guaranteed renewability requirements. For a discussion of these revisions, please see the preamble for § 155.430 in this final rule.
HHS believes that these notices of termination should be sent to all individual, qualified employees affected by the termination of coverage or enrollment. By communicating directly with qualified employees through a notice of termination, the SHOP or the issuer can provide more timely notice regarding termination of coverage or enrollment, allowing employers and enrollees to seek other coverage and reduce gaps in coverage.
We are also making minor changes to the wording of the proposed requirements at § 155.735(g) and at § 156.285(d)(1)(ii), so that the final rule refers to a requirement to “notify” new enrollees, rather than to “provide” them “with a notice.” We are also finalizing new § 155.735(g) and the amendments to § 156.285(d)(1)(ii) with an effective date of January 1, 2016.
In § 155.1000, we proposed to add paragraph (d) to harmonize QHP certification with rolling enrollment in the SHOP. Under the proposal, where a SHOP certifies QHPs on a calendar year basis, a QHP's certification will be in effect for the duration of any employer's plan year that began in the calendar year for which the plan was certified.
We are finalizing as proposed with the modification noted below.
We are making a conforming amendment to align the date by which an Exchange must complete the QHP recertification process with the date finalized in this rule at § 155.410(e)(2) for the beginning of the open enrollment period for the benefit year beginning on January 1, 2016. In the Exchange Establishment Rule, we finalized § 155.1075(b) to state that the Exchange must complete the QHP recertification process on or before September 15 of the applicable calendar year. In that rule, we also finalized the open enrollment periods for years other than the 2014 benefit year as running from October 15 through December 7 of the preceding year (77 FR 18462). This gave Exchanges until 1 month before the beginning of the open enrollment period to complete the recertification process.
In the proposed rule, we proposed that the beginning of the open enrollment period for the benefit year beginning on or after January 1, 2016, would begin on October 1, 2015—approximately 2 weeks after the QHP recertification deadline. As discussed elsewhere in this final rule, we are finalizing an open enrollment period for coverage beginning in 2016 that would begin 1 month later, on November 1. To align the date by which an Exchange must complete recertification and the beginning of the open enrollment period in a manner that provides issuers, State regulators, and Exchanges additional time to complete the plan review and certification processes without placing any substantive burden on consumers, we are amending § 155.1075(b) to require Exchanges to complete recertification of QHPs no later than 2 weeks prior to the beginning of open enrollment.
In § 156.20, we proposed that for purposes of part 156, the term “plan” have the meaning given the term in § 144.103, as proposed to be amended in this rulemaking. Please refer to section III.A.1 for a discussion of the term “plan,” which is being finalized as proposed.
Section 1311(d)(5)(A) of the Affordable Care Act contemplates an Exchange charging assessments or user fees to participating health insurance issuers to generate funding to support its operations. If a State does not elect to operate an Exchange or does not have an approved Exchange, section 1321(c)(1) of the Affordable Care Act directs HHS to operate an Exchange within the State. In addition, 31 U.S.C. 9701 permits a Federal agency to establish a charge for a service provided by the agency. Accordingly, at § 156.50(c), we specified that a participating issuer offering a plan through an FFE must remit a user fee to HHS each month that is equal to the product of the monthly user fee rate specified in the annual HHS notice of benefit and payment parameters for the applicable benefit year and the monthly premium charged by the issuer for each policy under the plan where enrollment is through an FFE.
OMB Circular No. A–25 Revised (Circular No. A–25R) establishes Federal policy regarding user fees, and specifies that a user charge will be assessed against each identifiable recipient for special benefits derived from Federal activities beyond those received by the general public. As in benefit year 2015, issuers seeking to participate in an FFE in benefit year 2016 will receive two special benefits not available to the general public: (1) The certification of their plans as QHPs; and (2) the ability to sell health insurance coverage through an FFE to individuals determined eligible for enrollment in a QHP. Activities performed by the Federal government that do not provide issuers participating in an FFE with a special benefit will not be covered by this user fee.
Circular No. A–25R further states that user charges should generally be set at a level so that they are sufficient to recover the full cost to the Federal government of providing the service when the government is acting in its capacity as sovereign (as is the case when HHS operates an FFE). We proposed to set the 2016 user fee rate for all participating issuers at 3.5 percent of the monthly premium charged by the issuer. This rate is the same as the 2015 user fee rate. We are finalizing the 2016 user fee rate as proposed. Circular No. A–25R allows for exceptions to this policy, with OMB approval. An exception was in place for establishing the 2015 user fee rate. To ensure that FFEs can support many of the goals of the Affordable Care Act, we received an exception to this policy again for 2016.
We proposed to amend paragraph (c) of § 156.100 to delete the language regarding the default base-benchmark plan in the U.S. Territories of Guam, the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands. The change reflects HHS's determination, described in more detail in section III.A.1.b of this final rule, that certain provisions of the PHS Act enacted in title I of the Affordable Care Act that apply to health insurance issuers are appropriately governed by the definition of “State” set forth in that title. Therefore, the rules regarding EHB (section 2707 of the PHS Act) do not apply to health insurance issuers in the U.S. Territories. We also proposed to make a technical change to this section by replacing “defined in § 156.100 of this section” with “described in this section.” We note that this has no effect on Medicaid and CHIP programs and that Alternative Benefit Plans will still have to comply with the essential health benefit requirements.
We did not receive any comments regarding this proposal. We are finalizing the provisions as proposed.
One of the 10 categories of benefits that must, under section 1302(b)(1)(G) of the Act, be included under the Secretary's definition of EHB is rehabilitative and habilitative services and devices. If a benchmark plan does not include habilitative services, § 156.110(c)(6) of the current EHB regulations requires the issuer to cover habilitative services as specified by the State under § 156.110(f) or, if the State does not specify, then the issuer must cover habilitative services in the manner specified in § 156.115(a)(5). Section 156.115(a)(5) states that a health plan may provide habilitative coverage by covering habilitative services benefits that are similar in scope, amount, and duration to benefits covered for rehabilitative services or otherwise determine which services are covered and report the determination to HHS. In some instances, those options have not resulted in comprehensive coverage for habilitative services. Therefore, we proposed amending § 156.115(a)(5) to establish a uniform definition of habilitative services that may be used by States and issuers. In addition, we proposed to remove § 156.110(c)(6) because that provision gives issuers the option to determine the scope of habilitative services.
We believe that adopting a uniform definition of habilitative services would minimize the variability in benefits and lack of coverage for habilitative services versus rehabilitative services. Defining habilitative services clarifies the difference between habilitative and rehabilitative services. Habilitative services, including devices, are provided for a person to attain, maintain, or prevent deterioration of a skill or function never learned or acquired due to a disabling condition. Rehabilitative services, including devices, on the other hand, are provided to help a person regain, maintain, or prevent deterioration of a skill or function that has been acquired but then lost or impaired due to illness, injury, or disabling condition.
We proposed adopting the definition from the Glossary of Health Coverage and Medical Terms
We did not propose any changes to § 156.110(f), which allows States to determine services included in the habilitative services and devices category if the base-benchmark plan does not include coverage. Several States have made such a determination following benchmark selection for the 2014 plan year, and we wish to continue to defer to States on this matter as long as the State definition complies with EHB policies, including non-discrimination. If the State does not supplement missing habilitative services or does not supplement the services in an EHB-compliant manner, issuers should cover habilitative services and devices as defined in § 156.115(a)(5)(i).
We also proposed to revise current § 156.115(a)(5)(ii) to provide that plans required to provide EHB cannot impose limits on coverage of habilitative services that are less favorable than any such limits imposed on coverage of rehabilitative services. Since the statutory category includes both rehabilitative and habilitative services and devices, we interpret the statute to require coverage of each. Therefore, issuers that previously excluded habilitative services, but subsequently added them, would be required under our proposal to impose separate limits on each service rather than retaining the rehabilitative services visit limit and having habilitative services count toward the same visit limit. Because we proposed to establish a uniform definition of habilitative services in new § 156.115(a)(5)(i), we also proposed to delete § 156.110(c)(6), which would remove the option for issuers to determine the scope of the habilitative services. In § 156.110 we proposed to make a technical change to amend the list structure of paragraph (c) by replacing the “and” in (c)(5) with a period and adding an “and” at the end of (c)(4).
We are finalizing our policy as proposed, adopting the definition of habilitative services from the Uniform Glossary in its entirety, to be effective beginning with the 2016 plan year and requiring separate limits on habilitative and rehabilitative services beginning with the 2017 plan year. We are codifying this final policy in revised § 156.115(a)(5) and removing § 156.110(c)(6).
In the preamble of the EHB Rule, we stated that pediatric services should be provided until at least age 19 (78 FR 12843). States, issuers, and stakeholders requested clarification on this standard. To provide this clarification, we proposed amending § 156.115(a) to add paragraph (6), specifying that EHB coverage for pediatric services should continue until the end of the plan year in which the enrollee turns 19 years of age. This was proposed as a minimum requirement.
This age limit is consistent with section 1201 of the Affordable Care Act,
In the Patient Protection and Affordable Care Act; Data Collection to Support Standards Related to Essential Health Benefits; Recognition of Entities for the Accreditation of Qualified Health Plans final rule (EHB Data Collection Rule),
We proposed to allow each State to select a new base-benchmark plan for the 2017 plan year, allowing States to choose a 2014 plan that meets the requirements of § 156.110 as the new EHB-benchmark plan, so that issuers can design substantially equal EHB-compliant products for the 2017 plan year. We believe that this would ultimately create efficiencies for issuers in designing plans. As stated in § 156.115(a), provision of EHB means that a health plan provides benefits that are substantially equal to the EHB-benchmark plan. Therefore, health plans offering EHB in the 2017 plan year will be required to provide benefits substantially equal to the benefit amounts, duration and scope of benefits covered by the 2014 EHB-benchmark plan (supplemented as necessary).
If a category of base-benchmark plans under § 156.100(a)(1)–(4) does not include a plan that meets the requirements of § 156.110, we considered permitting the State to select a base-benchmark plan that does not meet the requirements of § 156.110 in that category and supplement its base-benchmark plan as provided in § 156.110(b) to ensure that all 10 categories of benefits are covered in a benchmark plan.
We proposed re-codifying part of § 156.120, in a manner similar to that which appeared in our regulations prior to the effective date of the EHB Rule. We proposed to require a State that chooses a new benchmark plan in the State or, if a State does not choose a new benchmark plan, the issuer of the default benchmark plan, to provide benchmark plan data as of a date specified by HHS. We anticipate collection of new benchmark plan data for the 2017 plan year and the data discussed in § 156.120(b), including administrative data and descriptive information pertaining to all health benefits in the plan, treatment limitations, drug coverage, and exclusions. We believe that this information is already included in the issuer's form filing that the issuer submitted to the State regulator. The definitions previously adopted in § 156.120(a) for the terms health benefits, health plan, State, and treatment limitations are still applicable and would be codified as previously defined. However, we are not finalizing the definitions for “health insurance market” or “small group market” in
Under our regulations at § 156.122(a), EHB plans are required to cover the greater of one drug per United States Pharmacopeia (USP) category and class or the same number of drugs in each USP category and class as the State's EHB-benchmark plan. In the proposed rule, we proposed several revisions to this policy. First, we proposed to retain § 156.122(a)(2), with one modification to change “drug list” to “formulary drug list” for uniformity purposes for this section, and to renumber this paragraph from § 156.122(a)(2) to § 156.122(a)(1). Due to some concerns detailed in the proposed rule about the drug count standard under current § 156.122(a)(1), we proposed an alternative to the drug count standard. Specifically, we proposed that plans have a pharmacy and therapeutics (P&T) committee and use that committee to ensure that the plan's formulary drug list covers a sufficient number and type of prescription drugs. We proposed that the P&T committee standards must be met for the prescription drug coverage to be considered EHB. We stated our belief that the use of a P&T committee in conjunction with other standards that we proposed would ensure that an issuer's formulary drug list covers a broad array of prescription drugs. We noted that standards defined by the Medicare Part D Prescription Drug Program (Medicare Part D), the NAIC,
In the proposed rule, we proposed to specify P&T committee standards on
We also proposed that the P&T committee must meet at least quarterly, and maintain written documentation of all decisions regarding development and revision of formulary drug lists. For formulary drug list establishment and management, we proposed that the P&T committee must develop and document procedures to ensure appropriate drug review and inclusion on the formulary drug list, as well as make clinical decisions based on scientific evidence, such as peer-reviewed medical literature, and standards of practice, such as well-established clinical practice guidelines. The P&T committee would be required to consider the therapeutic advantages of prescription drugs in terms of safety and efficacy when selecting formulary drugs and making recommendations for their formulary tier. The P&T committee would be required to review both newly FDA-approved drugs and new uses for existing drugs. We also proposed that the P&T committee would be required to ensure that an issuer's formulary drug list covers a range of drugs across a broad distribution of therapeutic categories and classes and recommended drug treatment regimens that treat all disease states and does not discourage enrollment by any group of enrollees.
Lastly, we proposed to require that issuers' formularies provide appropriate access to drugs that are included in broadly accepted treatment guidelines and which are indicative of and consistent with general best practice formularies in widespread use. Broadly accepted treatment guidelines and general best practices could be based on industry standards or other appropriate guidelines that are issued by expert organizations that are current at the time. For instance, broadly accepted treatment guidelines could include guidelines provided in the National Guideline Clearinghouse (NGC), which is a publicly available database of evidence-based clinical practice guidelines and related documents. As a result of this proposed policy, we would expect that a health plan's formulary drug list would ensure that appropriate access is being afforded to drugs in widely accepted national treatment guidelines and which are indicative of general best practices at the time. Given our proposal to use broadly accepted treatment guidelines and best practices, we would also expect that plans' formulary drug lists be similar to those formulary drug lists then currently in widespread use. We also noted that States have primary responsibility for enforcing EHB requirements and, if finalized, States would be responsible for the oversight and enforcement of the P&T committee standards. We sought comment on these proposed revisions to § 156.122(a), including on the oversight and enforcement of these standards, and whether other standards are needed for P&T committees.
As an alternative to, or in combination with, the above-proposed P&T committee requirements, we considered whether to replace the USP standard with a standard based on the American Hospital Formulary Service (AHFS). We sought comments on the proposed P&T committee standard, and whether we should consider adopting AHFS or another drug classification system, as well as on any other standards that may be appropriate for this purpose. For instance, for the AHFS system, we considered amending the minimum standard established in the EHB Final Rule that requires coverage of at least the greater of one drug in every USP category and class or the same number of drugs in each USP category and class as the State's EHB-benchmark plan to require at least the greater of one drug in each AHFS class and subclass or the same number of drugs in each AHFS class and subclass as the State's EHB-benchmark plan. We explained that if we were to finalize a P&T committee process in combination with a drug count standard based on either the AHFS system or the USP system, we would expect the health plan to establish and maintain its formulary drug list in compliance with the P&T committee standards, and in addition, the resulting health plan's formulary drug list would also need to comply with the drug count standard. We discussed continuing to use the existing USP drug count standard, and updating the USP drug count system to a more current version. We proposed to implement proposed § 156.122(a)(2) to start in the 2017 plan year, seeking comments on this proposed timing of implementation. Based on comments
For the P&T committee requirements, we considered deferring to other standards, such as those established by NCQA, URAC and Medicare Part D. However, § 156.122 establishes a market-wide standard, and not all plans are required to be accredited by those organizations. We also do not believe that some accreditation standards are as transparent as Medicare Part D standards—for example, some accreditation standards are proprietary and could be costly and burdensome for an issuer to implement. Further, stakeholders are already familiar with Medicare Part D's P&T committee standards and we believe that these standards will best ensure the P&T committee is able to ensure a robust formulary. For these reasons, we are finalizing P&T committee standards modeled on Medicare Part D's P&T committee standards that have been modified, as explained below, to better address the private health plan population and the needs of plans required to cover EHB. We also believe that adopting P&T committee standards that generally align with the existing Medicare Part D standards and guidance, where possible, will better ensure uniformity between standards to help reduce the burden on issuers. As explained below, we are finalizing the proposed conflict of interest standards. Although these standards are different than those adopted by Medicare Part D, we believe that these standards are similar to practices in the private insurance market.
We are retaining the USP drug count standard because stakeholders are now familiar with the USP system after using it for 2 years, and we were persuaded by the comments supporting the continued use of USP. Issuers have already developed 2 years of formularies based on it, States have already developed systems to review those formularies, and stakeholders are familiar with the system. Thus, while AHFS had the benefit of being updated more frequently and incorporating a broader set of classes and subclasses, commenters did not uniformly support its use because of several issues, including a lack of transparency, the need to supplement certain classes when compared with USP, and the complexity of the AHFS system. We also believe that retaining USP will reduce the administrative burden and costs on States and issuers in implementing a combined P&T committee process with a drug count standard. In implementing the revised § 156.122(a), we intend to use the most up-to-date version of the USP system available at the time that we build our formulary review tools for each plan year, starting with the 2017 plan year, and will refer to the version number in the methodology document that we update each year.
To codify our final policy, we are retaining § 156.122(a)(1) (with one technical change to delete the “and”), we are retaining current § 156.122(a)(2) (with one technical correction to replace “drug list” with “formulary drug list” and to add an “and”), and we are adding a new § 156.122(a)(3). Under the new § 156.122(a)(3), a health plan must establish and maintain its formulary drug list in compliance with the P&T committee standards. These standards are in addition to the requirement that the health plan's formulary drug list comply with the drug count standard under § 156.122(a)(1) as the minimum standard of coverage, and the requirement that the health plan submit its formulary drug list to the Exchange, the State, or OPM. While issuers must have a P&T committee, nothing under § 156.122(a) precludes issuers from using the same P&T committee across multiple issuers. However, we recognize that using the same P&T committee across multiple issuers may be complex to administer. Because States are primarily responsible for enforcing EHB requirements, States will be responsible for the oversight and enforcement of the P&T committee standards and the drug count standard. We intend to work with States to implement these provisions and may consider developing additional tools and resources to assist States in reviewing formulary drug lists. New § 156.122(a)(3) will apply starting with the 2017 plan year to give States, issuers, and PBMs time to implement the new P&T committee standards.
We are finalizing the conflict of interest requirements as proposed. These conflict of interest standards are not the same as Medicare Part D's standards, but we believe that issuers are currently using similar practices in the private health insurance market. Members of the P&T committee that have a conflict of interest with respect to the issuer or a pharmaceutical manufacturer are permitted to sit on the P&T committee but are prohibited from voting on matters for which the conflict exists. We would expect that in implementing this standard, if a particular member of a P&T committee has to abstain from a majority of votes, that the P&T committee should consider removal of the member from the P&T committee. Additionally, at least 20 percent of the P&T committee's membership must have no conflicts of interest with respect to either the issuer or to any pharmaceutical manufacturer. We considered the comments we received on other P&T committee standards and on the requirements for the number and percentage of conflict free members. However, due to concerns about issuers' ability to meet a requirement with a higher threshold and concerns about setting a fixed number of members required to be conflict free when we did not also set the limit on the number of participants on the P&T committee, we believe that requiring 20 percent of the P&T committee's membership to be conflict free is a reasonable threshold in combination with § 156.122(a)(3)(i)(C). As part of this standard, the P&T committee members must sign a conflict of interest statement at least annually revealing economic or other relationships with entities affected by the committee's drug coverage decisions, including the issuer and any pharmaceutical manufacturers. The P&T committee is responsible for establishing a reasonable definition of conflict of interest and for managing the conflicts of interest of its committee members. We will consider providing further guidance regarding the P&T committee's management and oversight, including its operation and management of conflicts of interest, in the future.
We are also adding new § 156.122(a)(3)(iii)(D) through (F), which are consistent with Medicare Part D standards at 42 CFR 423.120(b)(1)(vi), (vii), and (ix), respectively. The new standard in § 156.122(a)(3)(iii)(D) will require the P&T committee to review policies that guide exceptions and other utilization management processes, including drug utilization review, quantity limits, and therapeutic interchange. The purpose of finalizing these reviews, which is a typical practice by P&T committees, is to ensure that formulary management techniques do not undermine access to covered drugs.
The new standard in § 156.122(a)(3)(iii)(E) requires the P&T committee to evaluate and analyze treatment protocols and procedures
Under § 156.122(a)(3)(iii)(G), which was proposed as § 156.122(a)(3)(iii)(D), the P&T committee must review all new FDA-approved drugs and new uses for existing drugs. To implement this requirement, the P&T committee must make a reasonable effort to review a new FDA approved drug product (or new FDA approved indication) within 90 days, and make a decision on each new FDA approved drug product (or new FDA approved indication) within 180 days of its release onto the market, or a clinical justification must be documented if this timeframe is not met.
A health plan's formulary drug list, under § 156.122(a)(3)(iii)(H), must cover a range of drugs across a broad distribution of therapeutic categories and classes and recommended drug treatment regimens that treat all disease states and must not discourage enrollment by any group of enrollees. The formulary drug list must also ensure appropriate access to drugs in accordance with widely accepted national treatment guidelines and general best practices at the time. To comply with § 156.122(a)(3)(iii)(H), broadly accepted treatment guidelines and general best practices could be based on industry standards or other appropriate guidelines that are issued by expert organizations that are current at the time. For instance, broadly accepted treatment guidelines could include guidelines provided in the National Guideline Clearinghouse (NGC), which is a publicly available database of evidence-based clinical practice guidelines and related documents.
Section 156.122(c) currently requires issuers of EHB plans to have procedures in place that allow an enrollee to request and gain access to clinically appropriate drugs not covered by the plan. This requirement, commonly referred to as the “exceptions process,” applies to drugs that are not included on the plan's formulary drug list. As established in the EHB Final Rule (78 FR 12834) and the Market Standards Rule (79 FR 30240), such procedures must include a process that allows an enrollee, the enrollee's designee, or the enrollee's prescribing physician (or other prescriber) to request an expedited review based on exigent circumstances. Exigent circumstances exist when an enrollee is suffering from a serious health condition that may seriously jeopardize the enrollee's life, health, or ability to regain maximum function, or when an enrollee is undergoing a current course of treatment using a non-formulary drug. A health plan must make its coverage determination on an expedited review request based on exigent circumstances, and notify the enrollee or the enrollee's designee and the prescribing physician (or other prescriber, as appropriate) of its coverage determination no later than 24 hours after it receives the request. A health plan that grants an exception based on exigent circumstances must provide coverage of the non-formulary drug for the duration of the exigency.
In the proposed rule, we proposed to build on the expedited exception process by proposing to also adopt similar requirements for the standard exception process. We also proposed to adopt standards for a secondary external review process if the first exception request is denied by the plan (regardless of whether the exception is requested using the standard process or the expedited process).
We proposed at § 156.122(c), that a health plan providing EHB must have certain exception processes in place that allow an enrollee, the enrollee's designee, or the enrollee's prescribing physician (or other prescriber) to request and gain access to clinically appropriate drugs not covered by the health plan, and when an exception requested under one of these processes is granted, the plan must treat the excepted drug as EHB for all purposes, including accrual to the annual limitation on cost sharing. Proposed § 156.122(c)(1) sets forth the standard exception process. Under this process, we proposed that a health plan have a process for an enrollee, the enrollee's designee, or the enrollee's prescribing physician (or other prescriber) to request a standard review of a coverage decision for a drug that is not covered by the plan. We proposed that the health plan must make its coverage determination on a standard exception request and notify the enrollee or the enrollee's designee and the prescribing physician (or other prescriber, as appropriate) of its coverage determination no later than 72 hours after it receives the request. We proposed to require a health plan that grants an exception based on the standard review process to provide coverage of the non-formulary drug for the duration of the prescription, including refills, and we stated that in such a case the excepted drug would be considered EHB for all purposes, including for counting towards the annual limitation on cost sharing. As stated in the EHB Rule, plans are permitted to go beyond the number of drugs offered by the benchmark without exceeding EHB. Therefore, if the plan is covering drugs beyond the number of drugs covered by the benchmark, all of these drugs are EHB and must count towards the annual limitation on cost sharing.
We proposed moving the language regarding the expedited exceptions process from § 156.122(c)(1) to new § 156.122(c)(2) and to replace “Such procedures must include” with “A health plan must have” in current (c)(1) proposed as a new paragraph (c)(2)(i).
In § 156.122(c)(3), we proposed that if the health plan denies an exception request for a non-formulary drug, the issuer must have a process for an enrollee, the enrollee's designee, or the enrollee's prescribing physician (or other prescriber, as appropriate) to request that an independent review organization review the exception request and the denial of that request by the plan. For this external exception review, we proposed to apply the same timing that applied to the initial review. Thus, if the enrollee requested the drug under the proposed standard process and the request was denied, then the independent review organization would have to make its determination and the health plan would have to notify the enrollee or enrollee's designee and the prescribing physician (or other prescriber, as appropriate) no later than 72 hours after the time it receives the external exception review request. Likewise, if the initial exception request is for an expedited review and that request is denied by the plan, then the independent review organization would
The 24-hour timing policy for the expedited review was adopted in the final rule on the Market Standards Rule (79 FR 30240), and we are finalizing the 72-hour standard review, as well as the timing for the external reviews, in this final rule. All of these timeframes begin when the issuer or its designee receives a request. An enrollee or the enrollee's prescribing physician (or other prescriber) should strive to submit a completed request; however, issuers should not fail to commence review if they have not yet received information that is not necessary to begin review. Therefore, we interpret new § 156.122(c) to mean that the review must begin following the receipt of information sufficient to begin review. Issuers should not request irrelevant or overly burdensome information. Issuers must be equipped to accept these requests in writing, electronically, and telephonically.
As part of the request for a standard review, the prescribing physician or other prescriber should support the request by including an oral or written statement that provides a justification supporting the need for the non-formulary drug to treat the enrollee's condition, including a statement that all covered formulary drugs on any tier will be or have been ineffective, would not be as effective as the non-formulary drug, or would have adverse effects.
Following a favorable decision on the standard or external review, the enrollee must be provided access to the prescribed drug without unreasonable delay. Therefore, issuers need to be prepared to communicate rapidly with pharmacies and pharmacy benefit managers, as applicable. At a minimum, we expect issuers to update certificates of coverage to reflect the availability of this process, and to be able to provide instruction to enrollees or their designees and providers or their designees on how to use the process.
For the external exception review, we are finalizing a standard under which the independent review organization that conducts the external review must be accredited by a nationally recognized private accrediting organization. As part of this process, the issuer should provide the independent review organization with all relevant information to conduct the review, including the initial denial of the exception request. The issuer may use the same independent review organization for the external review for the drug exception process under § 156.122(c)(3) that the plan contracts with for the final external review decision under § 147.136. As established in revised § 156.122(c), any drug covered through the exception process must be treated as an EHB, including by counting any cost sharing towards the plan's annual limitation on cost sharing and when calculating the plan's actuarial value. We believe that ensuring that an enrollee has the option to request an external review of a denied exception request and that a drug covered through the exception process count towards the plan's annual limitation on cost sharing are important consumer protections that help ensure enrollees' access to clinically appropriate medications.
We do not believe that enrollees should have to continue to make requests under § 156.122(c) to access a refill of the same clinically appropriate drugs that they initially obtained through the exceptions process. Therefore, we are finalizing a standard under which non-grandfathered health plans in the individual and small group markets that must provide coverage of the essential health benefit package under section 1302(a) of the Affordable Care Act must cover a drug accessed through the standard exception process for the duration of the prescription, including refills. To provide further clarification on the operation of the external review process, we are also finalizing a new standard under which,
Under § 156.122(d), we proposed adding a requirement to the EHB prescription drug benefit that a health plan must publish an up-to-date, accurate, and complete list of all covered drugs on its formulary drug list, including any tiering structure that it has adopted and any restrictions on the manner in which a drug can be obtained, in a manner that is easily accessible to plan enrollees, prospective enrollees, the State, the Exchange, HHS, OPM, and the general public. We also solicited comment on whether the formulary tiering information should include cost sharing information, such as the enrollee's applicable pharmacy deductible (for example, $100), copayment (for example, $20), or cost-sharing percentage for the enrollee (for example, 20 percent). We proposed that a formulary drug list be considered easily accessible when the general public is able to view the formulary drug list on the plan's public Web site through a clearly identifiable link or tab and without creating or accessing an account or entering a policy number. The general public should be able to easily discern which formulary drug list applies to which plan if the issuer maintains multiple formularies, and the plan associated with each formulary drug list should be clearly identified on the plan's Web site. As a result of this proposed requirement, we would expect the issuers' formulary drug list to be up-to-date, meaning that the formulary drug list must accurately list all of the health plan's covered drugs at that time. We solicited comments on this timing. Also, the formulary drug list URL link under this section should be the same direct formulary drug list URL link for obtaining information on prescription drug coverage in the Summary of Benefits and Coverage, in accordance with § 147.200(a)(2)(i)(K). We proposed that this requirement would be effective beginning with the 2016 plan year. We solicited comments on these proposed requirements, including whether we should require that additional types of information be included in the formulary drug list.
As part of this proposed requirement that issuers' formulary drug list must be made available to the general public, we considered requiring issuers to make this information publicly available on their Web sites in a machine-readable file and format specified by HHS. The purpose of establishing machine-readable files with the formulary drug list data would be to provide the opportunity for third parties to create resources that aggregate information on different plans. As an alternative, we considered whether the formulary drug list information could be submitted to HHS though an HHS-designed standardized template, while recognizing that there could be challenges with keeping this type of template information updated. We solicited comments on these options. We are finalizing these requirements largely as proposed, with language to clarify that the requirement to publish an up-to-date, accurate and complete list of all covered drugs applies beginning with the 2016 plan year, and to require that QHPs in the FFEs make available this information to HHS in a format and at times determined by HHS beginning with the 2016 plan year.
For the purpose of § 156.122(d), for a formulary drug list to be considered complete, the formulary drug list must list all drugs that are EHB and when the formulary drug list specifies all drug names that are currently covered by the plan at that time. This requirement means that issuers are prohibited from listing only the most commonly prescribed medications. The formulary drug list does not have to list every covered formulation for each covered drug, but the issuer should be prepared to provide information on the specific formulations upon request to the plan's enrollees, prospective enrollees, the State, the Exchange, HHS, OPM, and the
Under § 156.122(e), we proposed to require that enrollees be provided with the option to access their prescription drug benefit through retail (brick-and-mortar or non-mail order) pharmacies. This requirement would mean that a health plan that is required to cover the EHB package cannot have a mail-order only prescription drug benefit. This proposed requirement would still allow a health plan to charge a different cost-sharing amount when an enrollee obtains a drug at an in-network retail pharmacy than he or she would pay for obtaining the same covered drug at a mail-order pharmacy. However, as a part of these requirements, we proposed to clarify that this additional cost sharing for the covered drug would count towards the plan's annual limitation on cost sharing under § 156.130 and would need to be taken into account when calculating the actuarial value of the health plan under § 156.135. Additionally, under this proposed policy, issuers would still retain the flexibility to charge a lower cost-sharing amount when obtaining the drug at an in-network retail pharmacy. While this proposal requires coverage of a drug at an in-network retail pharmacy, for plans that do not have a network, the enrollee would be able to go to any pharmacy to access their prescription drug benefit and those plans would, therefore, be in compliance with this proposed standard.
As part of this proposed policy, we proposed that the health plan may restrict access to a particular drug when: (1) The FDA has restricted distribution of the drug to certain facilities or practitioners (including physicians); or (2) appropriate dispensing of the drug requires special handling, provider coordination, or patient education that cannot be met by a retail pharmacy. If the health plan finds it necessary to restrict access to a drug for either of the two reasons listed above, we proposed that it must indicate this restricted access on the formulary drug list under § 156.122(d). We are finalizing these policies as proposed with a technical edit to § 156.122(e)(2) to replace
Issuers retain the ability to charge different cost sharing for drugs obtained at a retail pharmacy, but for non-grandfathered health plans in the individual and small group markets that must provide coverage of the essential health benefit package under section 1302(a) of the Affordable Care Act, all cost sharing, including any difference between the cost sharing for mail order and the cost sharing for retail, must count towards the plan's annual limitation on cost sharing in accordance with § 156.130(a) and must be taken into account when calculating the actuarial value of the health plan in accordance with § 156.135. We are clarifying that these issuers can apply higher or lower cost sharing, that is, nothing requires an issuer to use higher cost sharing for drugs obtained from a retail pharmacy. As a result, some or all of the costs associated with this option may be passed on to the consumer who chooses to use it. However, nothing in this provision supersedes State law that may apply other cost sharing standards to mail-order pharmacies. For plans that do not have a network, enrollees should be able to go to any pharmacy to access their prescription drug benefit, and those plans would, therefore, be in compliance with this standard. In addition, this requirement is not intended to disrupt or supersede the rules regarding cost sharing for preventive service benefits when such coverage includes drugs.
In response to comments, we considered an exceptions process under which an enrollee could make a request to obtain the prescription at a brick and mortar retail pharmacy. However, we are concerned that if we allow an exception process, the issuer would retain the option to deny the request, and such a process could be seen as burdensome on the enrollee. In particular, an exception process could be burdensome for enrollees with complex health conditions if they had to seek an exception request for each of their prescription drugs that they take.
We understand that specialty pharmacies provide more integrated services, aimed at improving clinical outcomes while limiting costs relating to the delivery and management of the product, than a typical mail-order pharmacy or a brick and mortar retail pharmacy. We understand that drugs on the specialty tier of a formulary are not necessarily the same drugs that a specialty pharmacy would provide. Our intention with this policy was not to disrupt the specialty pharmacy market, and we understand that exceptions will be needed for many drugs that are only accessible via a specialty pharmacy. For these reasons, we are finalizing the exceptions that allow a health plan to restrict access to certain drugs in limited circumstances. As part of this requirement, a health plan may restrict access to mail order, which may include specialty pharmacies, for a particular drug when: (1) The FDA has restricted distribution of the drug to certain facilities or practitioners (including physicians); or (2) appropriate dispensing of the drug requires special handling, provider coordination, or patient education that cannot be met by a retail pharmacy. For instance, certain drugs have a Risk Evaluation and Mitigation Strategy (REMS) that includes Elements to Assure Safe Use that may require that pharmacies, practitioners, or health care settings that dispense the drug be specially certified and that may limit access to the drugs to certain health care settings.
Issuers must implement the revised § 156.122(e) no later than for the start of
In addition to the proposed provisions above, we urged issuers to temporarily cover non-formulary drugs (including drugs that are on an issuer's formulary but require prior authorization or step therapy) as if they were on formulary (or without imposing prior authorization or step therapy requirements) during the first 30 days of coverage. We encouraged plans to adopt this policy to accommodate the immediate needs of enrollees, while allowing the enrollee sufficient time to go through the prior authorization or drug exception processes.
We are also concerned about issuers making mid-year formulary changes, especially changes that negatively affect enrollees. We are monitoring this issue to consider whether further standards are needed. We also note that, under guaranteed renewability requirements and the definitions of “product” and “plan,” issuers generally may not make plan design changes, including changes to drug formularies, other than at the time of plan renewal. We recognize that certain mid-year changes to drug formularies related to the availability of drugs in the market may be necessary and appropriate.
We are not requiring coverage of a transitional fill at this time. As stated in the proposed rule, we will consider whether additional requirements may be needed in this area. We remain concerned that new enrollees may be unfamiliar with what is covered on their new plan's formulary drug list and the process and procedures under the plan. Further, some new enrollees whose drugs are covered by the plan's formulary may need to obtain prior authorization or go through step therapy to have coverage for their drugs, and others may need time to work with their provider to determine which formulary drug the individual should be transitioned to. For these reasons, we urge issuers to temporarily fill drugs that are not on the formulary (or are on an issuer's formulary but require prior authorization or step therapy) as if they were on formulary (or without imposing prior authorization or step therapy requirements) during the first 30 days of coverage. We encourage plans to adopt this policy to accommodate the immediate needs of enrollees, while allowing the enrollee sufficient time to go through the prior authorization or drug exception processes.
Section 1302(b)(4) of the Affordable Care Act directs the Secretary to address certain standards in defining EHB, including elements related to balance, discrimination, the needs of diverse sections of the population, and denial of benefits. We have interpreted this provision, in part, as a prohibition on discrimination by issuers providing EHB. Under § 156.125, which implements the prohibition on discrimination provisions, an issuer does not provide EHB if its benefit design, or the implementation of its benefit design, discriminates based on an individual's age, expected length of life, present or predicted disability, degree of medical dependency, quality of life, or other health conditions.
As described in the proposed rule, since we finalized § 156.125, we have become aware of benefit designs that we believe would discourage enrollment by individuals based on age or based on health conditions, in effect making those plan designs discriminatory, thus violating this prohibition. Some issuers have maintained limits and exclusions that were included in the State EHB benchmark plan. As we have previously stated in guidance, EHB-benchmark plans may not reflect all requirements effective for plan years starting on or after January 1, 2014. Therefore, when designing plans that are substantially equal to the EHB-benchmark plan, issuers should design plan benefits, including coverage and limitations, to comply with requirements and limitations that apply to plans beginning in 2014.
In the proposed rule, we discussed three examples of potentially discriminatory practices: (1) Attempts to circumvent coverage of medically necessary benefits by labeling the benefit as a “pediatric service,” thereby excluding adults; (2) refusal to cover a single-tablet drug regimen or extended-release product that is customarily prescribed and is just as effective as a multi-tablet regimen, absent an appropriate reason for such refusal; and (3) placing most or all drugs that treat a specific condition on the highest cost tiers.
In this final rule, CMS adopts the same approach as described in the proposed rule. As we indicated in the proposed rule and the 2014 Letter to Issuers, we will notify an issuer when we see an indication of a reduction in the generosity of a benefit in some
We note that other nondiscrimination and civil rights laws may apply, including the Americans with Disabilities Act, section 1557 of the Affordable Care Act, Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, section 504 of the Rehabilitation Act of 1973 and State law. Compliance with § 156.125 is not determinative of compliance with any other applicable requirements, and § 156.125 does not apply to the Medicaid and CHIP programs, but a parallel provision applies to EHBs furnished by Medicaid Alternative Benefit Plans.
Additionally, as described later in this preamble, section 1302(b) of the Affordable Care requires that the definition of EHB be based on the scope of benefits provided under a typical employer plan, subject to requirements under the joint interpretive jurisdiction of the Departments of HHS, Labor, and the Treasury.
HHS's Office for Civil Rights (OCR) has independent authority to enforce section 1557 of the Affordable Care Act (42 U.S.C. 18116), which prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in any health program or activity, any part of which receives Federal financial assistance. OCR also enforces Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d,
We proposed to amend § 156.130 to clarify how the annual limitation on
Additionally, we proposed to make a technical correction to the text at § 156.130(c) on the special rule for network plans to replace “shall not” with “is not required to.” This proposed amendment was intended to clarify that issuers have the option to count the cost sharing for out-of-network services towards the annual limitation on cost sharing, but are not required to do so. This out-of-network cost sharing would not count toward the calculation of actuarial value under § 156.135(b)(4) or meeting a given level of coverage under § 156.140.
Lastly, in the proposed rule, we proposed clarifying that the annual limitation on cost sharing for self-only coverage applies to all individuals regardless of whether the individual is covered by a self-only plan or is covered by a plan that is other than self-only. In both of these cases, an individual's cost sharing for EHB may never exceed the self-only annual limitation on cost sharing. For example, under the proposed 2016 annual limitation on cost sharing, if an other than self-only plan has an annual limitation on cost sharing of $10,000 and one individual in the family plan incurs $20,000 in expenses from a hospital stay, that particular individual would only be responsible for paying the cost sharing related to the costs of the hospital stay covered as EHB up to the annual limit on cost sharing for self-only coverage (assuming an annual limitation of $6,850 for 2016, the maximum for that year). We sought comments on these proposed requirements and clarifications as well as whether other requirements and clarifications were needed. We are finalizing our proposal that the annual limitation on cost sharing for self-only coverage applies to all individuals regardless of whether the individual is covered by a self-only plan or is covered by a plan that is other than self-only and the technical correction we proposed to make to the text at § 156.130(c).
Section 156.130 is specific to the annual limitation on cost sharing. While cost sharing incurred towards the deductible must count towards the annual limitation on cost sharing for EHB, the deductible limit is not regulated in the same manner as the annual limitation on cost sharing. Therefore, family high deductible health plans that count the family's cost sharing to the deductible limit can continue to be offered under this policy. The only limit will be that the family high deductible health plan cannot require an individual in the family plan to exceed the annual limitation on cost sharing for self-only coverage. We also note that this policy, that the annual limitation on cost sharing for self-only coverage applies to all individuals regardless of whether the individual is covered by a self-only plan or is covered by a plan that is other than self-only, would also apply to catastrophic plans under § 156.155 and that plans are required to comply with reduced maximum annual limitation on cost sharing under § 156.420. We note that 2016 plans must comply with this policy.
Section 1302(c)(4) of the Affordable Care Act directs the Secretary to determine an annual premium adjustment percentage, which is used to set the rate of increase for three parameters detailed in the Affordable Care Act: The maximum annual limitation on cost sharing (defined at § 156.130(a)), the required contribution percentage by individuals for minimum essential health coverage the Secretary may use to determine eligibility for hardship exemptions under section 5000A of the Code, and the assessable payment amounts under section 4980H(a) and (b) of the Code (finalized at 26 CFR 54.4980H in the “Shared Responsibility for Employers Regarding Health Coverage,” published in the February 12, 2014
We established a methodology for estimating average per capita premium for purposes of calculating the premium adjustment percentage in the 2015 Payment Notice. Under that methodology, the premium adjustment percentage is calculated based on the projections of average per enrollee employer-sponsored insurance (ESI) premiums from the NHEA, which is calculated by the CMS Office of the Actuary.
Accordingly, using the ESI data, the premium adjustment percentage for 2016 is the percentage (if any) by which the most recent NHEA projection of per enrollee ESI premiums for 2015 ($5,744) exceeds the most recent NHEA projection of per enrollee ESI premiums for 2013 ($5,303).
Sections 1402(a) through (c) of the Affordable Care Act direct issuers to reduce cost sharing for EHBs for eligible individuals enrolled in a silver level QHP. In the 2014 Payment Notice, we established standards related to the provision of these cost-sharing reductions. Specifically, in part 156 subpart E, we specified that QHP issuers must provide cost-sharing reductions by developing plan variations, which are separate cost-sharing structures for each eligibility category that change how the cost sharing required under the QHP is to be shared between the enrollee and the Federal government. At § 156.420(a), we detailed the structure of these plan variations and specified that QHP
We then entered these model plans into the proposed 2016 AV calculator developed by HHS and observed how the reductions in the maximum annual limitation on cost sharing specified in the Affordable Care Act affected the AVs of the plans. We found that the reduction in the maximum annual limitation on cost sharing specified in the Affordable Care Act for enrollees with a household income between 100 and 150 percent of the FPL (
We note that for 2016, as described in § 156.135(d), States are permitted to submit for approval by HHS State-specific data sets for use as the standard population to calculate AV. No State submitted a data set by the September 1 deadline.
Section 1401(a) of the Affordable Care Act added a new section 36B to the Code, providing a premium tax credit for certain individuals with household incomes between 100 percent and 400 percent of the FPL who enroll in, or who have one or more family members enrolled in an individual market QHP through an Exchange, who are not otherwise eligible for MEC. An employer-sponsored plan is MEC, but for purposes of the premium tax credit under section 36B(c)(2)(C)(ii) of the Code, an employee is generally treated as not eligible for MEC under an employer-sponsored plan unless the plan is affordable and provides minimum value (MV). An employer-sponsored plan provides MV if the plan's share of the total allowed costs of benefits provided under the plan is greater than or equal to 60 percent of the costs. An employee who is eligible for coverage under an employer-sponsored plan that is both affordable and provides MV to the employee may not receive a premium tax credit under section 36B of the Code for the employee's coverage in a QHP. If the employer coverage does not provide MV, the employee may be entitled to a premium tax credit even if the coverage is affordable.
Section 1513 of the Affordable Care Act added a new section 4980H to the Code providing for shared responsibility for employers regarding health coverage. An applicable large employer that does not offer coverage that is affordable and provides MV may be liable for an employer shared responsibility payment under section 4980H of the Code if one or more of its full-time employees receives a premium tax credit.
Under our regulations, the MV standard of 60 percent of the total allowed costs of benefits provided under the plan is based on an amount equivalent to the plan's share of total allowed costs required for a bronze level QHP offered on an Exchange. Section 1302(d)(2)(C) of the Affordable Care Act provides that regulations promulgated by the Secretary of HHS under section 1302(d)(2), addressing actuarial value, apply in determining under this title, the Public Health Service Act, and the Internal Revenue Code . . . the percentage of the total allowed costs of benefits provided under a group health plan or health insurance coverage that are provided by such plan or coverage. Accordingly, HHS regulations under section 1302(d) implementing actuarial value requirements, which an insurer offering essential health benefits (EHB) must meet for a non-grandfathered individual market or small group health insurance plan to be considered a bronze plan under section 1302(d)(1)(3) of the Affordable Care Act, also form the basis for determining the percentage of the total allowed costs of benefits provided for purposes of whether the value of coverage meets the MV standard under section 36B(c)(2)(C)(ii) of the Code.
HHS published final regulations implementing section 1302(d)(2) on February 25, 2013 (78 FR 12834). The regulations at § 156.20 define the percentage of the total allowed costs of benefits as (1) the anticipated covered medical spending for EHB coverage paid by a health plan for a standard population, (2) computed in accordance with the plan's cost sharing, and (3) divided by the total anticipated allowed charges for EHB coverage provided to the standard population. HHS regulations at § 156.145(b)(2) apply this definition in the context of MV by taking into account benefits a plan provides that are included in any one of the State EHB benchmarks.
The IRS and Treasury Department published proposed regulations on May 3, 2013 (78 FR 25909), applying the HHS regulations in defining MV for employer-sponsored plans. The proposed regulations provide that the MV percentage is determined by dividing a plan's anticipated medical spending (based on the plan's cost-sharing) for plan benefits that are EHB covered under a particular EHB benchmark plan for the MV standard population by the total allowed charges for EHB coverage for the standard population and converting the result to a percentage. Proposed 26 CFR 1.36B–6(c). Taxpayers may apply the proposed regulations for taxable years ending before January 1, 2015.
The final HHS regulations and proposed Treasury regulations allow plans to determine the MV percentage by using the MV Calculator published by HHS. It came to our attention that certain group health plan designs that provide no coverage of inpatient hospital services were being promoted, and that representations were being made, based on the MV Calculator, that these plan designs would cover 60 percent of the total allowed costs of benefits provided, and thus provide MV under the test in the current regulations. We understand that these designs have been promoted as a way of both minimizing the cost of the plan to the employer (a consequence not only of excluding inpatient hospitalization benefits but also of making an offer of coverage that a substantial percentage of employees will not accept) and avoiding potential liability for employer shared responsibility payments. By offering coverage that is affordable to the employee and that purports to provide MV, employers adopting these plan designs were seeking, to deny their employees the ability to obtain a premium tax credit that could result in the employer becoming subject to a section 4980H employer shared responsibility payment.
In Notice 2014–69 (2014–48 IRB, November 24, 2014), released on November 4, 2014, HHS and Treasury advised that regulations would be proposed providing that plans that fail to provide substantial coverage of inpatient hospital or physician services do not provide MV. Allowing these designs to be treated as providing MV not only would allow an employer to avoid the shared responsibility payment that the statute imposes when an employer does not offer its full-time employees adequate health coverage, but would adversely affect employees (particularly those with significant health risks) who understandably would find this coverage unacceptable, by denying them access to a premium tax credit for individual coverage purchased through an Exchange. Plans that omit critical benefits used disproportionately by individuals in poor health will enroll far fewer of these individuals, effectively driving down employer costs at the expense of those who, because of their individual health status are discouraged from enrolling.
That the MV standard may be interpreted to require that employer-sponsored plans cover critical benefits is evident in the structure of the Affordable Care Act, the context in which the grant of the authority to the Secretary to prescribe regulations under section 1302 was enacted, and the
Employer-sponsored plans in the large group market and self-insured employers continue to have flexibility in designing their plans. They are not required to cover all EHB. Providing flexibility, however, does not mean that these plans can offer whatever benefits they choose and automatically meet MV requirements. A plan that excludes substantial coverage for inpatient hospital and physician services is not a health plan in any meaningful sense and is contrary to the purpose of the MV requirement to ensure that an employer-sponsored plan, while not required to cover all EHB, nonetheless must offer coverage with minimum value at least roughly comparable to that of a bronze plan offered on an Exchange.
For these reasons, the Secretary has concluded that the provisions of section 1302(d)(2) of the Affordable Care Act—requiring that the regulations for determining the percentage of the total allowed costs of benefits that apply to plans that must cover all EHB also be applied as a basis for determining minimum value—reflect a statutory design to provide basic minimum standards for health benefits coverage through the MV requirement, without requiring large group market plans and self-insured plans to meet all EHB standards. Given the scope of benefits covered by typical employer plans, the MV requirement is properly viewed as a means of ensuring that employer-sponsored plans satisfy basic minimum standards while also accommodating flexibility in the design of those plans.
Employers have been able to claim that plans without coverage of inpatient hospital services provide MV under the current quantitative MV test by designing a benefit package that, based on standardized actuarial assumptions used in the MV calculator, offsets the absence of actuarial value derived from spending on inpatient hospital coverage with increased spending on other benefits. Accordingly, some plan designs may pass the current quantitative test without offering a critical benefit universally understood to be included in any minimally acceptable employer health plan coverage, and which the Department of Labor study determined was included in
As noted previously, we have concluded that the quantitative test for MV is not exclusive. Accordingly, we are finalizing our proposal to amend § 156.145 to require that, to provide MV, an employer-sponsored plan not only must meet the quantitative standard of the actuarial value of benefits, but also must provide a benefit package that meets a minimum standard of benefits. Specifically, we are finalizing as proposed the policy to revise § 156.145 to provide that, to satisfy MV, an employer plan must provide substantial coverage of both inpatient hospital services and physician services.
We are not requiring that large employer or self-insured employer group health plans provide all EHB as defined under section 1302 of the Affordable Care Act. Rather, we are only requiring that, to provide MV, employer-sponsored plans provide substantial coverage of the two types of benefits that we believe were envisioned for health plan coverage meeting the MV standard. We have concluded that plans that omit these types of coverage fail to meet universally accepted minimum standards of value expected from, and inherent in the nature of, any arrangement that can reasonably be called a health plan intended to provide the primary health coverage for employees.
Consistent with Notice 2014–69, we are finalizing our proposal that these changes to our regulations on MV will apply to employer-sponsored plans, including plans that are in the middle of a plan year, immediately on the effective date of the final regulations. However, because some employers adopted plans prior to publication of Notice 2014–69, we are finalizing our proposal that the final regulations not apply before the end of the plan year (as in effect under the terms of the plan on November 3, 2014) to plans that before November 4, 2014, entered into a binding written commitment to adopt, or began enrolling employees into, the plan, so long as that plan year begins no later than March 1, 2015. For these purposes, a binding written commitment exists when an employer is contractually required to pay for an arrangement, and a plan begins enrolling employees when it begins accepting employee elections to participate in the plan. The Department of the Treasury and the IRS are expected to publish proposed regulations making clear that this delayed applicability date applies solely for purposes section 4980H of the Code. At no time will any employee be required to treat a plan that fails to provide substantial coverage of inpatient hospital services or physician services as providing MV for purposes of eligibility for the premium tax credit under section 36B of the Code.
We proposed to revise § 156.200(b)(7) to require that a QHP issuer comply with the standards under part 153 and not just the standards related to the risk adjustment program. This amendment clarifies that a QHP issuer must maintain responsibility for its compliance and, under § 156.340, the compliance of any of its delegated or downstream entities with the standards set forth in part 153, not just those specifically pertaining to risk adjustment. We received no comments on this proposal. We are finalizing this provision as proposed.
The transparency in coverage standards established under section 1311(e)(3) of the Affordable Care Act, as implemented at § 155.1040(a) and § 156.220, require health insurance issuers that offer a QHP in accordance with a certification from an Exchange to provide specified information to HHS, the Exchange, and the State insurance commissioner and to make this information available to the public in “plain language.” In a frequently asked question dated April 29, 2013,
In § 156.230, we established the minimum network adequacy criteria that health and dental plans must meet to be certified as QHPs, under the Secretary's authority in section 1311(c)(1)(B) of the Affordable Care Act. In this rule, we proposed modifying § 156.230(a) to specify that this section only applies to QHPs that use a provider network and that a provider network includes only providers that are contracted as in-network. This means that the general availability of out-of-network providers will not be counted for purposes of meeting network adequacy requirements.
We believe that networks that provide sufficient access to benefits are a priority for issuers and consumers. HHS continues to take great interest in ensuring strong network access, particularly for QHPs that must meet the standards in § 156.230. As stated in the proposed rule, HHS is aware that the NAIC has formed a workgroup that is drafting a model act relative to network adequacy and will await the results of this workgroup before proposing significant changes to network adequacy policy. For 2016, HHS expects to continue the reasonable access standard adopted in the 2015 Letter to Issuers in the Federally-facilitated Marketplaces
In addition to the changes above, we are also cognizant that new enrollees in QHPs may need a transition period to switch to a provider that is in-network in their new plan. We encourage QHP issuers that use a network of providers to offer new enrollees transitional care for an ongoing course of treatment. We suggest that this begin with the effective date of coverage of a new enrollee and last for at least 29 days thereafter (for a minimum of 30 days). These benefits would extend to health care services furnished by any provider to the new enrollee, regardless of whether the provider is in the plan's network, as long as the enrollee received health services from that provider under an ongoing course of treatment in the 90 days prior to the effective date of coverage. Because different plans may have different provider networks, when an individual enrolls in a new health plan, he or she may be undergoing a course of treatment with a provider that is not in the new issuer's provider network. In such a case, it may take time for the new enrollee to select a new in-network provider and to meet with the new provider to ensure that there is no disruption in treatment. We encourage issuers to adopt this policy to accommodate the immediate needs of enrollees, while allowing the enrollee sufficient time to go through the process of selecting an in-network provider in their new plan. As we stated in the proposed rule, we are considering whether requirements may be needed in this area in the future.
We are renumbering § 156.230(b), to (b)(1) and adding (b)(2) to strengthen the provider directory requirement effective for plan years beginning on or after January 1, 2016. Specifically, we proposed that a QHP issuer must publish an up-to-date, accurate, and complete provider directory, including information on which providers are accepting new patients, the provider's location, contact information, specialty, medical group, and any institutional affiliations, in a manner that is easily accessible to plan enrollees, prospective enrollees, the State, the Exchange, HHS, and OPM. As part of this requirement, we proposed that a QHP issuer must update the directory information at least once a month, and that a provider directory will be considered easily accessible when the general public is able to view all of the current providers for a plan on the plan's public Web site through a clearly identifiable link or tab without having to create or access an account or enter a policy number. The general public should be able to easily discern which providers participate in which plan(s) and provider network(s) if the health plan issuer maintains multiple provider networks, and the plan(s) and provider network(s) associated with each provider, including the tier in which the provider is included, should be clearly identified on the Web site and in the provider directory. We solicited comments on this proposal, including comments regarding how often updating should occur. We are finalizing this policy as proposed, retaining the monthly timeline.
We also finalize the requirement for issuers to make this information publicly available on their Web sites in a machine-readable file and format specified by HHS. The purpose of establishing machine-readable files with this data would be to provide the opportunity for third parties to create resources that aggregate information on different plans. We believe this will increase transparency by allowing software developers to access this information and create innovative and informative tools to help enrollees better understand the availability of providers in a specific plan. To facilitate this change, we proposed adding § 156.230(c) to require QHP issuers to make available and submit to HHS information about providers in its provider networks.
We specifically solicited comments on this requirement and other options, including the technical requirements for developing a machine-readable file and format for a provider directory, as well as other technical considerations, such as processes and considerations that should be taken into account. We have established these requirements to enhance transparency of QHP provider directories and to help consumers make
We also requested comments on the feasibility and merits of incorporating information on physical accessibility for individuals with disabilities, including accessibility information regarding facilities and equipment, or other information that would be important to enrollees and potential enrollees, as a part of network adequacy standards in the future.
At § 156.235, we proposed to strengthen the essential community provider (ECP) standard in accordance with section 1311(c)(1)(C) of the Affordable Care Act, which requires that a QHP's network include ECPs, where available, that serve predominantly low-income and medically-underserved populations. As established in section 1311(c)(1)(C) of the Affordable Care Act, ECPs include entities defined in section 340B(a)(4) of the PHS Act and providers described in section 1927(c)(1)(D)(i)(IV) of the Act as set forth by section 211 of Pub. L. 111–8. Additionally, we proposed that ECPs may include not-for-profit or State-owned providers that would be entities described in section 340B of the PHS Act but do not receive Federal funding under the relevant section of law, as these providers satisfy the same 340B requirements and therefore meet the definition of ECPs by virtue of the following description in section 1311(c)(1)(C) of the Affordable Care Act—health care providers defined in section 340B(a)(4) of the PHS Act and providers in section 1927(c)(1)(D)(i)(IV) of the Act. For the same reasons described above, we proposed that such providers also include not-for-profit or governmental family planning service sites that do not receive a grant under Title X of the PHS Act. Other providers that provide health care to populations residing in low-income zip codes or Health Professional Shortage Areas could also be considered ECPs. We proposed that the above proposals apply to benefit years 2016 and thereafter.
To assist issuers in ensuring that, in future QHP certification years, they are providing sufficient consumer access to ECPs to satisfy the requirement in section 1311(c)(1)(C) of the Affordable Care Act, we also proposed in new paragraph (a)(2)(i) of this section that, for QHP certification cycles beginning with the 2016 benefit year, a health plan seeking certification to be offered through an FFE must satisfy the general ECP standard described in paragraph (a)(1) of this section by demonstrating in its applications for QHP certification that a sufficient percentage, as determined annually by HHS and specified in HHS guidance, of available ECPs in the plan's service area have a contractual agreement to participate in the plan's provider network. For purposes of this general ECP standard, we proposed that multiple providers at a single location would count as a single ECP toward the issuer's satisfaction of the proposed ECP participation standard. Any update to the general ECP inclusion standards would be based on HHS's post-certification assessments of the adequacy of ECP participation, and geographic distribution of such providers, and evidence of contractual negotiation efforts provided by issuers in the ECP supplemental response forms.
In addition, we proposed in paragraph (a)(2)(ii) of this section that, to satisfy the general ECP standard, the issuer of the plan seeking certification as a QHP in an FFE would be required to offer contracts for participation in the plan for which a certification application is being submitted to the following: (1) All available Indian health providers in the service area, applying the special terms and conditions necessitated by Federal law and regulations as referenced in the recommended model QHP addendum for Indian health providers developed by HHS; and (2) at least one ECP in each ECP category (see Table 11) in each county in the service area, where an ECP in that category is available and provides medical or dental services that are covered by the issuer plan type. We expect that issuers will offer contracts in good faith. A good faith contract offer should offer the same rates and contract provisions as other contracts accepted by or offered to similarly situated providers that are not ECPs.
We
We proposed to redesignate current paragraph (a)(3) as paragraph (a)(4), in which we clarify that nothing in the requirements under paragraphs (a)(1) through (a)(3) of this section requires any QHP to provide coverage for any specific medical procedure. We also proposed to redesignate current paragraph (a)(2) as paragraph (a)(5).
We proposed in paragraph (b)(1) that the alternate ECP standard described in § 156.235(a)(5) will apply to issuers with plans that provide a majority of covered professional services through physicians employed by the issuer or through a single contracted medical group that offer QHPs in any Exchange. Additionally, for plans seeking QHP certification in FFEs, we proposed that a QHP issuer described in paragraph (a)(5) of this section be determined to have a sufficient number and geographic distribution of employed or contracted providers by demonstrating in its QHP application that the number of its providers in the following locations meets a percentage specified in HHS guidance of the number of available ECPs in the service area: (i) Located within a Health Professional Shortage Areas; or (ii) located within five-digit zip codes in which 30 percent or more of the population falls below 200 percent of the Federal Poverty Line. For purposes of this alternate ECP standard, multiple providers at a single location will count as one ECP toward the available ECPs in the plan's service area and toward the issuer's satisfaction of the proposed ECP participation standard to ensure a sufficient number and geographic distribution of ECPs as required under § 156.235(a). Any modification to the alternate ECP inclusion standard in future benefit years would be based on HHS's post-certification assessments of the adequacy of ECP participation and geographic distribution of such providers to ensure reasonable and timely access to such ECPs for low-income, medically underserved individuals.
Furthermore, we proposed in new paragraph (b)(3) of this section that if a QHP certification application of a plan for the FFE does not satisfy the alternate ECP standard described in paragraph (b)(2) of this section, the issuer must include as part of its QHP application a narrative justification describing how the issuer's provider network(s) provides an adequate level of service for low-income and medically underserved enrollees. When assessing whether an issuer has provided a satisfactory narrative justification under either the general or alternate ECP standard, as applicable, HHS will take into account factors and circumstances identified in the ECP Supplemental Response Form,
Finally, we proposed in paragraph (c) of this section to remove the language defining ECPs as meeting the criteria on the initial date of the regulation's publication. We proposed this change in recognition of the fact that the universe of ECPs, as well as the databases we use to delineate this universe, may vary over time for many reasons, including demographic and provider characteristics. We requested comment on these proposed changes. We are now finalizing these changes with modifications. The final rule specifies in regulation text that entities that could receive funding under Title X and 340B are ECPs, clarifies the application to SADPs, clarifies standards related to covered services, and clarifies the standard for integrated delivery systems.
In contrast, one commenter stated that the QHPs lack complete information to adequately identify the universe of ECPs. Furthermore, the commenter stated that the ECP lists provided to issuers in the past have included providers that either do not provide medical services or include inaccurate provider information. The commenter recommended that HHS improve the utility of ECP information by including National Provider Identifiers (NPIs) in their database of ECPs, and by publishing any revised ECP lists prior to the anticipated QHP application submission deadline and with any modifications made apparent to allow issuers to easily reconcile the HHS ECP list with their internal records. Some commenters recommended that SADP issuers be exempt from the ECP inclusion standard given that certain elements of the ECP requirements are less suited for dental issuers than medical issuers, and suggested that CMS instead require SADPs to provide evidence of offering meaningful access to lower income enrollees in their service areas.
Regarding the commenters' recommendation to exempt SADPs from the ECP inclusion standard, we proposed to modify the ECP requirement at § 156.235(a)(2)(ii)(B) to clarify that only the providers in the ECP categories that provide dental services would be considered available for an SADP's offering of a contract. In other words, we have added “and provides medical or dental services that are covered by the issuer plan type” to the end of that paragraph to ensure the applicability of this provision to SADPs. Given that this was the only ECP provision unsuited for SADPs, we believe we have addressed the need for its suitability by making this proposed modification, and are finalizing this language as proposed, effective January 1, 2016.
Several commenters supported the inclusion of Rural Health Clinics (RHCs) and Community Mental Health Centers in the ECP category listing in Table 11 of the preamble. Commenters expressed concern, though, that the requirement that QHPs offer contracts to at least one ECP in each ECP category in each county in the plan's service area is a county-based requirement, and suggested that the requirement be based on time and distance within the county.
A few commenters urged that we add freestanding birth centers located in medically underserved and rural areas as a new ECP category. Several commenters recommended that we list Hemophilia Treatment Centers as a separate ECP category, rather than grouped in the “Other ECP Providers” category. Another commenter suggested that we add migrant and community health centers as an ECP category. One commenter urged that HHS require issuers to offer a contract to any willing Ryan White provider. One commenter suggested adding dental providers, substance abuse and mental health providers, children's hospitals, and essential pediatric providers to the list of ECP categories.
Several commenters suggested that HHS disaggregate the providers listed in the “Hospitals” ECP category and the “Other ECP Providers” category. These commenters expressed concern that by grouping together providers such as Hemophilia Treatment Centers, Community Mental Health Centers, and Rural Health Clinics into one ECP category such that issuers are only required to offer a contract to one of these and other types of providers in a given county, HHS runs the risk that low-income, underserved enrollees will have inadequate access to key providers that are uniquely suited to meet their specialized health needs. Another commenter urged that HHS identify Nurse Managed Clinics within the providers listed in the ECP categories in Table 11 of the preamble, stating that they are primary care clinics similar to the FQHCs, but with a different funding source.
One commenter recommended that we remove Indian health care providers as a major ECP category due to the overlapping requirement that issuers offer contracts to all Indian health providers in the service area.
Numerous commenters urged HHS to continually monitor for issuer maintenance of their networks throughout the year to ensure that issuers do not discriminate against ECPs through contract negotiations, and to make sure contracts are offered in good faith. One commenter urged that HHS consider not just the number of ECPs included and their geographic distribution, but also the breadth of services they provide and the type of ECP providers and facilities that the networks include.
In response to comments regarding the groupings of provider types in the ECP categories, we agree with the need to disaggregate several of these categories over time to ensure better access to a wider variety of health care services. More specifically, we considered modifying the ECP category listing to include a total of 11 ECP categories, by creating a separate ECP category each for children's hospitals and free-standing cancer centers, and disaggregating hemophilia treatment centers, community mental health centers, and rural health clinics from the “Other ECP Providers” category. However, because we recognize that issuers are in the process of finalizing their networks for 2016, we intend to propose this reclassification for 2017. We are not removing the Indian health care providers as a major ECP category, notwithstanding the overlapping requirement that issuers offer contracts to all Indian health care providers in the service area, because many providers and issuers rely on Table 11 to identify the universe of ECP types. In response to public comments supporting the inclusion of rural health clinics and Community Mental Health Centers as ECP provider types within the “other ECP providers” category, we are finalizing our proposal to include these provider types in our ECP category listing in Table 11, although we will not disaggregate them into their own separate ECP categories at this time.
For purposes of inclusion on the non-exhaustive HHS list of ECPs, we are clarifying that only those Medicare-certified rural health clinics that meet the following two requirements qualify: (1) Based on attestation, the clinic accepts patients regardless of ability to pay and offers a sliding fee schedule, or is located in a primary care Health Professional Shortage Area (whether geographic, population, or automatic
Lastly, we agree with commenters regarding the importance of monitoring issuer compliance with this important provision of our ECP standard, and intend to continue our post-certification monitoring activities to help ensure that consumers have access to the essential health benefits guaranteed to them under the Affordable Care Act. Therefore, we are finalizing our proposal, effective January 1, 2016, that a health plan seeking certification as a QHP in an FFE be required to offer contracts for participation in the plan for which a certification application is being submitted to at least one ECP in each ECP category in each county in the service area, where an ECP in that category is available and provides medical or dental services that are covered by the issuer plan type.
Some commenters stated that if HHS permits issuers to continue submitting narrative justifications when unable to satisfy the statutory ECP requirements, HHS should only allow the justifications in extremely rare circumstances, and issuers should be required to provide a reason for why the plan has failed to satisfy the standard to discourage plans from seeking an exemption when unwarranted.
Several commenters supported the requirement that QHPs not meeting the ECP standard must submit a justification describing how the plan's provider network is adequate for low-income enrollees in HPSAs. One of these commenters suggested that HHS clarify that this requirement extends to SADPs, as well.
In the proposed rule, we proposed to amend § 156.250 to replace the cross-reference to the Exchange application and notices provision at § 155.230(b) with a cross-reference to § 155.205(c). We also proposed to change the title of
We also proposed to extend the requirements of § 156.250 so that not only applications and notices to enrollees, but all information that is critical for obtaining health insurance coverage or access to health care services through the QHP to qualified individuals, applicants, qualified employers, qualified employees, and enrollees, would be provided in a manner consistent with § 155.205(c). In addition, using the summary of benefits and coverage (SBC) disclosure required under § 147.200 as an example, we proposed that information would be deemed to be critical for obtaining health insurance coverage or access to health care services if the issuer were required by State or Federal law or regulation to provide the document to a qualified individual, applicant, qualified employer, qualified employee, or enrollee. We also indicated that, based on our proposed standard, we would consider information that is critical for obtaining health coverage or access to health care services to include: Applications; consent, grievance, appeal, and complaint forms; notices pertaining to the denial, reduction, modification, or termination of services, benefits, non-payment, or coverage; a plan's explanation of benefits or similar claim processing information; QHP ratings information; rebate notices; correspondence containing information about eligibility and participation criteria; notices advising individuals of the availability of free language assistance; and letters or notices that require a signature or response from the qualified individual, applicant, qualified employer, qualified employee, or enrollee. We stated that we would not consider marketing materials that are available for advertising purposes only and not otherwise required by law to be critical for obtaining health insurance coverage or access to health care services through the QHP, and therefore an issuer would not be required to be make such materials accessible to individuals with disabilities or limited English proficiency.
We are finalizing this provision as proposed.
As we noted in the preamble to the proposed rule, we consider the SBC to be a document subject to § 156.250 for which a QHP issuer must provide meaningful access in accordance with the standards of § 155.205(c). As such, like any document that is considered to be “critical” within the meaning of § 156.250, in accordance with § 155.205(c)(2)(iii)(A), beginning no later than the first day of the Exchange individual market open enrollment period for the 2017 benefit year, a QHP issuer is required to include taglines with any SBC that reflects a QHP option or plan variation of a standard QHP option in the top 15 languages spoken by the LEP population in the applicable State. An issuer may satisfy this requirement if it includes a cover letter or other additional pages provided along with the SBC that contains all required taglines. In addition, in accordance with § 155.205(c)(2)(i), beginning when this rule takes effect, a QHP issuer is required to provide telephonic interpreter services in at least 150 languages with respect to any SBC that reflects a QHP option or plan variation of a standard QHP option. Because the requirements with respect to oral interpretation and taglines that are finalized in this rule are different in substance than those that apply generally to the SBC under § 147.200(a)(5) (which cross-references the internal claims and appeals and external review processes standards at § 147.136(e)), we clarify that these additional specific standards supplement the existing “ten percent county-level” language access standards in § 147.200(a)(5).
We make one clarification regarding our reference to “QHP ratings information.” By using this term, we intended to refer to the Quality Rating System and QHP Enrollee Experience Survey results established under sections 1311(c)(3) and (c)(4) of the Affordable Care Act. However, we recognize that this information, when available, is required to be displayed by Exchanges on the Exchange Web site, rather than by a QHP issuer directly. Therefore, unless a QHP issuer is required by other Federal or State law or regulation to provide QHP ratings information directly to consumers, that information would not be subject to § 156.250. A QHP issuer voluntarily providing the information to consumers is encouraged, but not required, to provide it in a manner that conforms to § 155.205(c).
Finally, though we do not consider marketing materials that are available for advertising purposes only and not otherwise required by law to be critical for obtaining health insurance coverage or access to health care services through the QHP, we remind issuers that they might have duties to make these materials accessible to individuals with disabilities and individuals with LEP under Federal civil rights laws that also might apply, including section 1557 of the Affordable Care Act, section 504 of the Rehabilitation Act of 1973, and Title VI of the Civil Rights Act of 1964.
Sections 155.240 and 155.400 explicitly authorize Exchanges to establish certain requirements related to premium payment for enrollment in QHPs through the Exchange. Section 156.265 currently only cross-references § 155.240. To clarify that both sets of requirements apply to QHPs, we proposed that a QHP issuer must follow the premium payment process established by the Exchange in accordance with § 155.240 and the payment rules established in § 155.400(e).
We did not receive comments concerning the proposed enrollment process provisions. We are finalizing the provisions proposed in § 156.265 of the proposed rule without any modifications.
We are finalizing revisions in this section to conform to our interpretation of the guaranteed availability and guaranteed renewability requirements. For a discussion these revisions, please see the preamble for § 155.430.
Section 1303 of the Affordable Care Act and § 156.280 specify accounting and other standards for issuers of QHPs through the Exchange in the individual market that cover abortion services for which public funding is prohibited (also referred to as non-excepted abortion services). The statute and regulations establish that unless otherwise prohibited by State law, a QHP issuer may elect to cover such services. If an issuer elects to cover such services under a QHP sold through the individual market Exchange, the issuer must ensure that no premium tax credit or cost-sharing reduction funds are used to pay claims for abortion services for which public funding is prohibited.
In the proposed rule, we provided guidance on individual market Exchange issuer's responsibilities for requirements related to QHP coverage of abortion services for which public funding is prohibited. HHS works with stakeholders, including States and issuers, to help them fully understand and follow the statutes and regulations governing the provision of health insurance coverage under a QHP through the Exchange. As is the case with many provisions in the Affordable Care Act, States and State insurance commissioners are the entities primarily responsible for implementing and enforcing the provisions in section 1303 of the Affordable Care Act related to individual market QHP coverage of non-excepted abortion services. OPM may issue guidance related to these provisions for multi-State plan issuers.
Under section 1303(b)(2)(B) of the Affordable Care Act, as implemented in § 156.280(e)(2)(i), individual market Exchange issuers must collect a separate payment from each enrollee, for an amount equal to the AV of the coverage for abortions for which public funding is prohibited. However, section 1303 of the Affordable Care Act and § 156.280 do not specify the method an issuer must use to comply with the separate payment requirement. As we described in the proposed rule, this provision may be satisfied in a number of ways. Several such ways include: Sending the enrollee a single monthly invoice or bill that separately itemizes the premium amount for non-excepted abortion services; sending a separate monthly bill for these services; or sending the enrollee a notice at or soon after the time of enrollment that the monthly invoice or bill will include a separate charge for such services and specify the charge. Section 1303 of the Affordable Care Act permits, but does not require, a QHP issuer to separately identify the premium for non-excepted abortion services on the monthly premium bill to comply with the separate payment requirement. A consumer may pay the premium payment for non-excepted abortion services and the separate payment for all other services in a single transaction, with the issuer depositing the two separate payments into the issuer's two separate allocation accounts as required by section 1301(b)(2)(C) of the Affordable Care Act, as implemented in § 156.280(e)(2)(ii) and (e)(3).
Section 1303(b)(2)(D) of the Affordable Care Act, as implemented in § 156.280(e)(4), establishes requirements for individual market Exchange issuers for how much they must charge each QHP enrollee for coverage of abortions for which public funding is prohibited. A QHP issuer must estimate the basic
We are finalizing revisions in this section to conform with our interpretation of the guaranteed availability and guaranteed renewability requirements. For a discussion of these revisions, please see the preamble for § 155.430. We are also correcting a typographical error by inserting the words “adhere to the” in § 156.290(a)(1).
In the proposed rule, we proposed to amend § 156.420 to add § 156.420(h) and require QHP issuers to provide SBCs that accurately represent plan variations in a manner consistent with the requirements set forth at § 147.200 to ensure that consumers have access to SBCs that accurately represent cost-sharing responsibilities for all coverage options, including plan variations, and are provided adequate notice of the plan variations.
We proposed that QHP issuers would be required to provide SBCs for plan variations no later than the first day of the next Exchange open enrollment period for the individual market for the 2016 benefit year, in accordance with § 155.410(e). We sought comments on whether the proposed applicability date would present implementation challenges for QHP issuers as well as on other aspects of the proposal. We also noted that QHP issuers would be required to provide the SBC in a manner that is consistent with the meaningful access requirements under § 155.205(c).
We are finalizing this provision as proposed, with one modification to specify that this standard will apply no later than November 1, 2015, which is the first day of the individual market open enrollment period for the 2016 benefit year.
In the proposed rule, we proposed to amend § 156.425 to clarify when a QHP issuer would be required to provide an SBC if an individual's assignment to a standard plan or plan variation of the QHP changes in accordance with § 156.425(a). We proposed that a QHP issuer must provide an SBC that accurately represents a new plan variation (or the standard plan variation) as soon as practicable after receiving notice from the Exchange of the individual's change in eligibility, but in no case later than 7 business days following receipt of notice. We proposed that this requirement would be effective beginning on January 1, 2016.
We are finalizing these provisions as proposed.
Sections 1402(a) through (c) of the Affordable Care Act provide for cost-sharing reductions for EHB provided by a QHP. Cost-sharing reductions are advanced to issuers throughout the benefit year, and reconciled following the benefit year against actual cost-sharing amounts provided by issuers to enrollees.
The reconciliation process requires QHP issuers to submit to HHS the total allowed costs for EHB charged for each plan variation policy, the amounts paid by the issuer, and the amounts paid by or on behalf of the enrollee (other than by the Federal government under section 1402 of the Affordable Care Act), as well as the amounts that would have been paid by the enrollee under the standard plan. Under the standard methodology described at § 156.430(c)(2), costs paid by the issuer under the standard plan are calculated by applying actual cost-sharing requirements for the standard plan to the allowed costs for EHB under the enrollee's policy for the benefit year. The difference is the amount of cost-sharing reductions provided.
In the proposed Payment Notice, we reiterated that issuers will not be reimbursed for reductions in out-of-pocket spending for benefits other than EHB. However, we explained that because of technology challenges in these early years of the cost-sharing reduction program, some issuers are presently unable to differentiate on a policy level between EHB claims and non-EHB claims, as required by HHS when applying the standard cost-sharing reduction reconciliation methodology. The difficulty occurs in plan designs that allow enrollee out-of-pocket spending for EHB and non-EHB claims alike to accumulate toward deductibles and the reduced annual limit on cost sharing. Such plan designs benefit enrollees by allowing them to reach their spending limits sooner. As a result, for the purpose of cost-sharing reduction reconciliation, we proposed to allow QHP issuers to submit percentage estimates of the portion of claims attributable to non-EHB for the 2014 benefit year, and to reduce the total claims amount by that percentage, to arrive at an estimated total EHB amount. The percentage estimate would be the estimate of expected non-EHB claims costs previously submitted for each plan variation on the Uniform Rate Review Template (URRT)
As described in proposed § 156.430(c)(2)(i), this exception to permit QHP issuers to use plan-specific URRT estimates of non-EHB claims would be limited to plan designs in which out-of-pocket expenses for non-EHB benefits accumulate toward the deductible and reduced annual limitation on cost sharing, but for which copayments and coinsurance rates for non-EHB are not reduced. This limitation helps assure that the estimated percentage, which is calculated based on the proportion of claims attributable to EHB, does not overstate the proportion of reduced out-of-pocket spending associated with EHB. In addition, the exception would apply only when non-EHB estimated percentages account for less than 2 percent of total claims, helping assure that any inaccuracies in the estimate are unlikely to result in significant inaccuracies in total cost-sharing reduction reimbursement.
Under § 156.602, State high risk pool coverage is designated as minimum essential coverage for a plan or policy year beginning on or before December 31, 2014, for a one-year transition period. However, many State high risk pools have continued into the 2015 policy year. The proposed rule would designate as minimum essential coverage any qualified high risk pool (as defined by section 2744(c)(2) of the PHS Act) established in any State as of the publication date of the proposed rule. This would provide States additional time to evaluate State-administered high risk pools and facilitate the transition of State high risk pool enrollees into QHPs through the Exchange or into other forms of minimum essential coverage. We sought comment on whether the designation should be permanent or time-limited (for example, for 2015 only). We also sought comment on the cut-off date for formation of State high
In the first Program Integrity Rule,
HHS is committed to ensuring that QHP issuers have the opportunity to learn from their experiences in 2014 without undue concern about being subject to formal enforcement actions when the QHP issuer has made reasonable efforts to comply with applicable standards. While immediate formal enforcement actions may be appropriate in some cases, we continue to prefer resolving most compliance issues by providing technical assistance. Accordingly, in the proposed rule we proposed extending the good faith compliance standard under § 156.800(c) through the end of calendar year 2015. We also noted, that irrespective of the good faith compliance standard, QHP issuers are required to comply with all applicable FFE standards (and any applicable Federal or State laws regarding privacy, security and fraud) at the time of certification and on an ongoing basis.
We are finalizing the provision as proposed.
In § 156.815(a), we proposed a definition of suppression, which would mean that a suppressed QHP temporarily would not be available for enrollment through the FFEs. In § 156.815(b), we proposed the bases for suppression of a QHP in the FFEs. Our first proposed basis for suppression, § 156.815(b)(1), is the issuer notifying HHS of its withdrawal of the QHP from the FFEs when one of the exceptions to guaranteed renewability of coverage related to discontinuing a particular product or discontinuing all coverage under § 147.106(c) or (d) applies. In § 156.815(b)(2), we proposed as a basis to suppress a QHP submission of data for the QHP that is incomplete or inaccurate. For example, incorrect rates submitted by a QHP issuer generally would lead to the suppression of the QHP until the rating data are corrected. In § 156.815(b)(3), we proposed as a basis to suppress a QHP that is undergoing decertification under § 156.810 or the appeal of a decertification under subpart J of part 156. In § 156.815(b)(4), we proposed as a basis to suppress a QHP pending, ongoing, or final State regulatory or enforcement action against the QHP that could affect the issuer's ability to enroll consumers or that otherwise relates to the issuer's ability to offer QHPs in the FFEs. In § 156.815(b)(5), we proposed as a basis for suppression of a QHP application of the special rule for network plans under § 147.104(c) or the financial capacity limits provision under § 147.104(d). In § 156.815(c), we proposed a basis for suppression of a QHP that is a multi-State plan upon notification by OPM of certain findings. We solicited comments on this proposal, including whether the proposed bases for suppression were appropriate and whether an appeals process should be available following suppression decisions.
We are finalizing the provision as proposed.
In § 156.1130(a), we proposed that a QHP issuer participating in an Exchange for at least 2 years must implement and report information regarding a quality improvement strategy (QIS), that is a payment structure that provides increased reimbursement or other market-based incentives in accordance with the health care topic areas in section 1311(g)(1) of the Affordable Care Act, for each QHP offered in an Exchange, consistent with the guidelines developed by HHS under section 1311(g)(2) of the Affordable Care Act. We noted that the statutory QIS requirements, similar to the other Exchange quality standards, extend to all Exchange types, including a State Exchange and the FFEs.
We proposed to phase in QIS implementation standards and reporting requirements to provide QHP issuers the necessary time to understand the populations enrolling in a QHP offered through the Exchange and to build quality performance data on their respective QHP enrollees. We believe that implementation of a QIS should be a continuous improvement process for which QHP issuers define the health outcome needs of their enrollees, set goals for improvement, and provide increased reimbursement to their providers or other market-based incentives to reward achievement of those goals. This approach is consistent with other QHP issuer quality standards for coverage offered through an Exchange including implementation and reporting for the patient safety standards, the Quality Rating System (QRS), and the Enrollee Satisfaction Survey (ESS). We further noted that, consistent with existing regulations at § 156.200(h), QHP issuers participating in Exchanges would be required to attest to compliance with QIS standards, along with the other QHP issuer quality initiatives for coverage offered through Exchanges established under subpart L of part 156, as part of the QHP application process.
In paragraph (b), we proposed to direct a QHP issuer to submit validated data in a form, manner, and reporting frequency specified by the Exchange to support evaluation of quality improvement strategies in accordance with § 155.200(d) and § 156.200(b)(5). We noted that we anticipate using the data collected as part of information used to evaluate and oversee compliance of QHP issuers in FFEs with the Exchange QIS standards and encourage State Exchanges to adopt a similar approach. State Exchanges would maintain the flexibility to add to the Federal minimum QIS standards and would also have the ability to establish their own form, manner, and reporting frequency. We proposed that beginning in 2016, a QHP issuer participating in an Exchange for at least 2 years would submit a QIS implementation plan for the 2017 plan year to the applicable Exchange, followed by annual progress updates. We noted that we anticipate that the implementation plan for a QHP issuer's proposed QIS would reflect a payment structure that provides increased reimbursement or other market-based incentives for addressing at least one of the topics in section 1311(g)(1) of the Affordable Care Act.
We proposed requesting information from QHP issuers regarding percentage of payments to providers that is adjusted based on quality and cost of health care services as this would promote transparency and assist Exchanges to make better informed QHP certification decisions. We also proposed that 1 year after submitting the QIS implementation plan, the QHP issuer would submit information including an annual update including a description of progress of QIS implementation activities, analysis of progress using proposed measures and targets, and any modifications to the QIS.
We noted that we believe that the implementation and reporting for the QIS over time would provide meaningful QIS data from QHP issuers by minimizing administrative effort while also allowing for flexibility and innovation. In the proposed rule, we explained that we anticipate issuing technical guidance in the future that will provide operational details including data validation, other data submission processes, timeframes and potential minimum enrollment size threshold for coverage offered through an FFE. We anticipate that this guidance would be updated on an annual basis (or more frequently as may be necessary). We proposed to allow State Exchanges to establish the data validation and submission requirements for QIS data from QHP issuers that participate in their respective Exchanges.
In paragraph (c), we proposed to direct a QHP issuer to submit data annually for activities that are conducted related to implementation of its QIS, in a manner and timeframe specified by the Exchange. For example, an issuer that participates in an FFE for
We noted that multi-State plans, as defined in § 155.1000(a), are subject to reporting QIS data for evaluation, as described in paragraph (b). In the proposed rule, we proposed to codify this general requirement at § 156.1130(d). We noted that we anticipate that OPM will provide guidance on QIS reporting to issuers with whom it holds multi-State plan contracts.
We sought comment on all aspects of this proposal, including whether the standard should apply to all types of QHPs offered through the Exchanges (for example, stand-alone dental plans, QHPs providing child-only coverage, and health savings accounts) or if different standards should be developed for the different types of QHPs. We also solicited feedback on: whether there should be a minimum enrollment size threshold to trigger the applicability of the QIS standards, what information should be included to effectively monitor and evaluate a QIS, and whether the information collected should be publically displayed to encourage transparency, support comparison of QHP issuer QIS activities, and align with other quality standards for QHP issuers participating in Exchanges.
We are finalizing these provisions as proposed, with the following modifications. For the initial years of implementation, QHPs that are stand-alone dental plans, provide child-only coverage, or are compatible with health savings accounts will not be subject to the QIS. Additionally, HHS intends to establish a minimum enrollment size that triggers the QIS obligations in alignment with the other Exchange quality initiatives (for example, the QRS and ESS) and will do so through technical guidance. Further, we clarify that, in the initial years of QIS implementation, HHS will not require QHP issuers to select measures from a set of standardized or uniform performance measures established by HHS for inclusion in their respective QIS implementation plans. HHS anticipates requiring QHP issuers to provide information regarding their payment structure that provides increased reimbursement or other incentives such as the percentage of payments made across various categories including fee-for-service with no link of payment to quality; fee-for-service with a link of payment to quality; alternative payment models built on fee-for-service architecture; and population-based payments, to promote transparency and align this approach with other current CMS and HHS payment reform initiatives. As detailed above, we intend to issue future technical guidance that will provide more information regarding these and other QIS data collection and submission details for QHP issuers participating on an FFE.
In the 2015 Payment Notice, we established an administrative appeals process designed to address unresolved discrepancies regarding advance payments of the premium tax credit, advance payments of cost-sharing reductions, FFE user fee payments, payments and charges for the premium stabilization programs, cost-sharing reduction reconciliation payments and charges, and assessments of default risk adjustment charges. We established a three-tier appeals process: a request for reconsideration under § 156.1220(a); a request for an informal hearing before a CMS hearing officer under § 156.1220(b); and a request for review by the Administrator of CMS under § 156.1220(c).
Under § 156.1220(a), we provided that an issuer may file a request for reconsideration of a processing error by HHS, HHS's incorrect application of the relevant methodology, or HHS's mathematical error only for advance payments of the premium tax credit, advance payments of cost-sharing reductions, FFE user fee payments, payments and charges for the premium stabilization programs, cost-sharing reduction reconciliation payments and charges, and assessments of default risk adjustment charges for a benefit year. In § 156.1220(a)(6), we stated that a reconsideration decision would be final and binding for decisions regarding the advance payments of the premium tax credit, advance payments of cost-sharing reductions, and FFE user fees. A reconsideration decision for other matters would be subject to the outcome of a request for informal hearing filed in accordance with § 156.1220(b).
Under § 156.1220(b), an issuer that elects to challenge the reconsideration decision may request an informal hearing before a CMS hearing officer. The CMS hearing officer's decision would be final and binding, but subject to any Administrator's review initiated in accordance with § 156.1220(c).
We stated in § 156.1220(c)(1) that if the CMS hearing officer upholds the reconsideration decision, the issuer is permitted to request a review by the Administrator of CMS within 15 calendar days of the date of the CMS hearing officer's decision. We proposed a modification to this process to also permit CMS the opportunity to request review of the CMS hearing officer's decision, and to permit the Administrator of CMS to decline to review the CMS hearing officer's decision. Specifically, we proposed to amend § 156.1220(c)(1) to permit either the issuer or CMS to request review by the Administrator of the CMS hearing officer's decision. We proposed to provide that any request for review of the hearing officer's decision must be submitted to the Administrator of CMS within 15 calendar days of the date of the hearing officer's decision, and must specify the findings or issues that the issuer or CMS challenges. We proposed that the issuer or CMS be permitted to submit for review by the Administrator a statement supporting the decision of the CMS hearing officer.
We also proposed to amend § 156.1220(c)(2) to provide the Administrator of CMS with the discretion to review or not review the decision of the CMS hearing officer after receiving a request for review under § 156.1220(c)(1). We believe such discretion will permit the Administrator to focus resources on the priority matters, including disputes with implications for other issuers. In keeping with our current process set forth in § 156.1220(c), we proposed that if the Administrator elects to review the CMS hearing officer's decision, the Administrator will review the statements of the issuer and CMS, and any other information included in the record of the CMS hearing officer's decision, and will determine whether to uphold, reverse, or modify the CMS hearing officer's decision. We proposed that the issuer or CMS be required to prove its case by clear and convincing evidence for issues of fact, and that the Administrator will send the decision and the reasons for the decision to the issuer. As established in
We received no comments on this proposal. We are finalizing these amendments as proposed.
The Premium Stabilization rule (77 FR 17220) aligned the definition of “allowable costs” under the risk corridors program at § 153.500 with the definition of incurred claims under the MLR program at § 158.140 and expenditures for health care quality and health information technology under § 158.150-§ 158.151. In the 2014 Payment Notice, we additionally specified that allowable costs under risk corridors must be reduced by the amount of cost-sharing reduction payments received by the issuer, to the extent not reimbursed to the provider. To align the calculations between the two programs, we proposed to specify that cost-sharing reduction payments should be deducted from incurred claims under the MLR program just as they are deducted from allowable costs under the risk corridors program. As we explained in the proposed rule, it is our understanding that in capitated arrangements, issuers will generally retain the cost-sharing reduction payments, and in such circumstances cost-sharing reduction payments should be accounted for as a reduction to incurred claims because capitation payments (which are reflected directly in an issuer's incurred claims) will be raised to account for the reductions in the providers' cost-sharing income. In contrast, in most fee-for-service arrangements, issuers will pass the cost-sharing reduction payments through to providers, and therefore no adjustment to incurred claims for cost-sharing reduction payments would be required in such situations.
We are finalizing this provision as proposed.
The MLR December 1, 2010 interim final rule (75 FR 74864) broadly describes Federal and State taxes and assessments that are excluded from premiums in the MLR and rebate calculations, and Federal and State taxes and assessments not excluded from premium in MLR and rebate calculations. In the proposed rule (79 FR 70737), we proposed to further clarify for future MLR reporting years the treatment of Federal and State employment taxes. Specifically, we proposed to amend the provisions for the reporting of Federal and State taxes in § 158.162(a)(2) and (b)(2) to provide that Federal and State employment taxes (such as the Federal Insurance Contributions Act (FICA) and the Railroad Retirement Tax Act (RRTA) taxes, the Federal Unemployment Act (FUTA) and State unemployment taxes, and other similar taxes) should not be excluded from premium in the MLR and rebate calculations.
The December 7, 2011 MLR Rebate Requirements for Non-Federal Governmental Plans interim final rule (76 FR 76596) directs issuers to distribute rebates to the group policyholders of non-Federal governmental plans. Under CMS's direct enforcement authority over non-Federal governmental plans, the interim final rule further directs the group policyholders of such plans to use the portion of the rebate attributable to the amount of premium paid by subscribers of such plans for the benefit of subscribers in one of three prescribed ways. These provisions were put in place to ensure that rebates are used for the benefit of enrollees of non-Federal governmental plans, who do not receive the protections of Employee Retirement Income Security Act of 1974 (ERISA), as amended. Under ERISA and implementing regulations, most plan participants are assured that the rebate (when the rebate is determined to be a plan asset) is applied for their benefit within 3 months of receipt by the policyholder.
To afford similar protection to subscribers of non-Federal governmental plans, we proposed to amend the provisions for distribution of rebates in § 158.242(b) to require group policyholders of non-Federal governmental plans to use the subscribers' portion of the rebate for the subscribers' benefit within 3 months of receipt of the rebate by the group policyholder. Under the proposal, plans would continue to be able to use the rebate to reduce the subscribers' portion of premium for the subsequent policy year (including by spreading it over the 12 months of the policy year) as long as the subsequent policy year commences within 3 months of receipt of the rebate by the group policyholder. If the subsequent policy year commences outside this 3-month window, the group policyholder of a non-Federal governmental plan must distribute the subscribers' portion of the rebate within 3 months in the form of a cash refund or by applying a mid-policy year premium credit to the subscriber's portion of the premium. We also noted that, because under § 158.242(b)(3) group health plans that are not governmental plans and are not subject to ERISA (such as church plans) must follow the same rebate distribution rules in order to receive the rebate directly, the same distribution deadline would apply to such plans.
We are finalizing the amendments as proposed. In addition, we are finalizing the December 7, 2011 interim final rule (76 FR 76596) with minor changes after consideration of the comments received on that rule as noted below.
Under the Paperwork Reduction Act of 1995, we are required to provide 30-day notice in the
In the November 26, 2014 (79 FR 70674) proposed rule, we requested public comment on each of the collection of information requirements contained in the proposed rule. The comments and our responses to them are discussed below:
When an issuer that offers a QHP, a plan otherwise subject to risk corridors, a risk adjustment covered plan, or a reinsurance-eligible plan experiences a change of ownership as recognized by the State in which the plan is offered, the issuer is required to notify HHS in a manner to be specified by HHS and provide the legal name, Health Insurance Oversight System (HIOS) plan identifier,
Under § 154.301(b)(2), if a State intends to make the information contained in Parts I, II, and III of the rate filing justification regarding proposed rate increases subject to review available to the public prior to the date specified in guidance by the Secretary, or if it intends to make the information contained in Parts I, II, and III of the rate filing justification regarding final rate increases available to the public prior to the first day of the annual open enrollment period in the individual market for the applicable calendar year, the State must notify CMS in writing of its intent to publish this information at least 30 days before it makes the information public and the date it intends to make the information public. We intend to seek OMB approval and solicit public comment on this information collection requirement, in accordance with the Paperwork Reduction Act of 1995, at a future date.
In § 155.222, we describe the information collection and disclosure requirements that pertain to the approval of vendors' FFE agent and broker training programs, including information verification and administration of identity proofing. The burden estimate associated with these disclosure requirements includes the time and effort required for vendors to develop, compile, and submit the application information and any documentation or agreement necessary to support oversight in the form and manner required by HHS. We estimate that HHS will receive applications from nine or fewer vendors, and that it will take each vendor approximately 10 hours to complete an application and the agreement, at a cost of $24.10 per hour. Therefore, we estimate a total burden of approximately 90 hours and a cost of $2,169 as a result of this requirement. HHS will develop a model vendor application that will include data elements necessary for HHS review and approval. HHS will estimate the burden on vendors for complying with this provision of the regulation, and submit the application for OMB approval in the future. For vendors that choose to charge for their training, HHS will consider current training costs for State-licensed agents and brokers for comparable training to comparable audiences when reviewing vendor applications with proposed fee structures.
In § 155.222(d), we establish a process through which HHS will monitor approved vendors for ongoing compliance. HHS may require additional information from approved vendors to be submitted periodically to ensure continued compliance related to the obligations described in this section. We estimate that HHS will receive applications from nine or fewer vendors. We estimate that it will take no longer than 10 hours (at a cost of $24.10 per hour) for each vendor to comply with any additional monitoring by HHS. Therefore, we estimate a total annual burden of 90 hours for all vendors for a total cost burden estimate of $2,169. In § 155.222(e), we establish a process by which a vendor whose application is not approved or whose approval is revoked by HHS can appeal HHS's determination. We discuss the costs associated with the appeals process in the Regulatory Impact Analysis (RIA) section of this rule.
This section establishes a new method by which agents and brokers may complete training and information verification components of the registration process to be authorized to assist with enrollment in individual market and SHOP coverage through the FFE. The information collection associated with the current process by which agents and brokers may be authorized to assist with enrollment through the Exchange is approved under OMB Control Number 0938–1204. We intend to revise the current collection request to incorporate this new method by which agents and brokers may complete training and information verification components of the registration process. Based on information not available when the current collection request was developed in 2013, we also expect a significant reduction in the overall burden, both in terms of the total number of respondents and the time required for each response. We intend to seek OMB approval and solicit public comment on this information collection requirement in accordance with the Paperwork Reduction Act of 1995.
Section § 155.720(e) has been amended to refer to enrollees and not qualified employees. This amendment establishes that issuers must provide a coverage effective date notice to anyone who enrolled in coverage through a SHOP under the new definition of “enrollee,” including dependents (including a new dependent of the employee, when the dependent separately joins the plan), former employees of a qualified employer, and certain business owners, who might be enrolled in coverage through a SHOP. We specify that when a primary subscriber and his or her dependents live at the same address, a separate notice need not be sent to each dependent at that address, so long as the notice sent to each primary subscriber at that address contains all the required information about the coverage effective date for the primary subscriber and each of his or her dependents at that address. When dependents live at a different address from the primary subscriber, a separate notice must be sent to those dependents. We note that the notices required under this proposal could be incorporated into existing notifications that QHPs provide to their new customers, for example in a welcome document. We are also making a conforming amendment to § 156.285(c)(3) to ensure that QHP issuers participating in a SHOP provide notice to a new enrollee of the enrollee's effective date of coverage. We note that the effective date for this notice requirement will take effect in plan years beginning on or after January 1, 2017 for enrollees that are not qualified employees. Issuers have already been providing these notices to qualified employees and are expected to continue sending these notices under the current rule. This final rule also expands issuers' obligation to send notices to former employees under the amended definition of a qualified employee.
The burden estimate associated with this requirement includes the time and effort needed to develop the notice and to distribute it through an automated process to enrollees, as appropriate. We estimate that approximately 445 QHP issuers (including dental issuers) will
In § 156.120, we require States that select a base-benchmark plan or an issuer that offers a default base-benchmark plan to submit to HHS certain information in a form and manner, and by a date, determined by HHS. We are also finalizing our proposal to allow each State to select a new base-benchmark plan and supplement if necessary for the 2017 plan year. The information collection associated with State or issuer submission of benchmark plan data is currently approved under OMB Control Number 0938–1174. We expect to collect less information for the 2017 plan year than we previously collected for this purpose, and therefore we have revised our current burden estimate to reflect the reduced burden on issuers. The burden estimate associated with this requirement includes the time and effort needed for issuers and States to file an electronic submission describing the benefits, limits, and exclusion of the plan chosen as the State benchmark for the 2017 benefit year. We estimate that approximately 51 entities are subject to the reporting requirements and that it will take approximately 1.5 hours annually to identify and submit the responsive records to CMS, including 1.5 hours for an issuer or health policy analyst (at an hourly wage rate of $58.05). Therefore, we estimate an aggregate burden of 76.5 hours and $4,440.83 for issuers and States as a result of this requirement.
We released information regarding this data collection requirement, in accordance with the Paperwork Reduction Act of 1995, on November 26, 2014 in CMS–10448,
In § 156.122, we require health plans that are required to comply with EHB, as part of a committee that meets the standards established in that section. We expect that health plans have already established P&T committees that meet these standards and follow these processes. These processes include recordkeeping requirements for the P&T committee. Because we believe that issuers are already required to maintain such documentation, such as for accreditation purposes, and that issuers tend to use the same formulary drug list for multiple plans, we believe that the recordkeeping requirement will only impose a minimal additional burden on issuers. Therefore, we estimate that it will take a compliance officer approximately 8 hours (at an hourly wage rate of $43.34) to prepare for and attend meetings on a quarterly basis, and maintain the required documentation. Therefore, for approximately 2,400 plans in the individual and small group market that would be subject to this requirement, we estimate an aggregate annual burden of 76,800 hours and $3,328,512.
In the proposed rule, we solicited comment regarding the type of information that QHP issuers would be required to provide and make available to the public in plain language under § 156.220. We intend to provide further detail regarding the proposed implementation approach in the future. We believe that the 2016 implementation date finalized in this rule will allow sufficient time for HHS to provide details regarding the data collection, review, and public display of transparency elements. We intend to seek public comments on a proposed information collection detailing the specific data elements, frequency of updates, file types, and other crucial information for OMB approval at a future date.
In § 156.285(d)(1)(ii) and § 155.735(d)(1)(iii) and (g) we require QHP issuers participating in the SHOP to provide notices to qualified employers and enrollees related to terminations of enrollment or coverage through the SHOP due to rescission in accordance with § 147.128 and due to the QHP's termination, decertification, or non-renewal of certification, while shifting the burden of notifying qualified employers and enrollees of terminations due to loss of eligibility or nonpayment of premiums to the SHOP. The amendments to § 156.285(d)(1)(ii) and new § 155.735(g) will take effect January 1, 2016. We note that, while our current rules require issuers to provide notice of terminations when coverage through the SHOP is rescinded in accordance with § 147.128, or when the issuer elects not to seek recertification for a QHP offered through the SHOP, this provision will expand QHP issuers' notice requirements to circumstances in which the QHP terminates or is decertified in accordance with § 155.1080. The notices must inform the enrollee and qualified employer of the termination effective date and the reason for the termination. We specify that when a primary subscriber and his or her dependents live at the same address, a separate notice need not be sent to each dependent at that address, so long as the notice sent to each primary subscriber at that address contains all the required information about the termination of coverage for the primary subscriber and each of his or her dependents at that address. We note that when dependents live at a different address from the primary subscriber, a separate notice must be sent to those dependents. The burden estimate associated with this requirement includes the time and effort needed to develop the notice and to distribute it through an automated process to qualified employer and the enrollee, as appropriate. We estimate that approximately 445 QHP issuers (including dental issuers) will participate on the SHOPs in all States. We estimate that it will take approximately 35 hours annually to develop and transmit this notice, including 4 hours for a health policy analyst (at an hourly wage rate of $58.05), 3 hours for an operations analyst (at an hourly wage rate of
Based on the above per-notice development wage rates and hours, we believe that each State-based SHOP will spend roughly 70 hours annually to prepare the two termination notices (35 hours per notice), for a total cost of $3,550 to design and implement the notices proposed under § 155.735(g). We estimate that there will be approximately 18 State-based SHOPs, and that all State-based SHOPs will be subject to this requirement. Therefore, we estimate an aggregate burden of 1,260 hours and $63,900 for State-based SHOPs as a result of this requirement.
In § 156.420(h), we require an issuer to provide a summary of benefits and coverage (SBC) for each plan variation of a QHP it offers in accordance with the rules set forth under § 156.420 (referred to in this section as a “plan variation SBC”), in a manner that is consistent with the standards set forth in § 147.200. In § 156.425(c), we provide that if an individual's assignment to a plan variation or standard plan without cost-sharing reductions changes in the course of a benefit year (in accordance with § 156.425(a)), an issuer must provide an SBC in a manner consistent with the standards set forth in § 147.200, as soon as practicable after receiving notice from the Exchange of the individual's change in eligibility and no later than 7 business days following receipt of notice. The burden associated with this requirement is the time and effort for an issuer to create and provide plan variation SBCs to affected individuals under § 156.420.
Nearly all issuers affected by this requirement have already incurred one-time start-up costs related to implementing the SBC requirements established under § 147.200, and are already providing SBCs that reflect the standard QHPs they offer.
Because stand-alone dental plans are not required to complete SBCs, we exclude these plans from the number of QHPs that we estimate are required to comply with the requirement. We estimate that approximately 575 issuers participate in the Exchange, and that each issuer offers one QHP per metal level, with four zero cost-sharing plan variations and four limited cost-sharing plan variations (two per metal level per QHP) and three silver plan variations.
We are unable to estimate the number of cost-sharing reduction-eligible enrollees at this time and the related burden on issuers to provide for these disclosures. We expect that the vast majority (approximately 95 percent) of the total number of plan variation SBCs provided in accordance with § 156.420(h) would be sent prior to enrollment and electronically at minimal cost, under the timing and form requirements set forth in § 147.200(a)(1)(iv) and (a)(4)(iii). Of the remaining number of plan variation SBCs, we estimate that approximately 4 percent of these disclosures will be sent in other instances, in accordance with the other timing requirements that may apply, including, requests for a plan variation SBC made by a consumer in the course of the benefit year. We expect that the vast majority of these disclosures will be provided electronically at minimal cost. We assume that there are costs for paper disclosures, but no costs for electronic disclosures.
In § 156.425(c), we require an issuer to provide adequate notice to the individual about the availability of the SBC that accurately reflects the applicable plan variation of the QHP (or the standard QHP without cost-sharing reductions) if an enrollee's eligibility for cost-sharing reductions changes in the course of a benefit year. Similarly, if an enrollee changes QHPs as the result of a special enrollment period in accordance with § 155.420(d)(6), the issuer of the new QHP will be required to provide the individual with an SBC that accurately reflects the new QHP. We are unable to estimate the number of cost-sharing reduction-eligible enrollees who would experience a change in eligibility for cost-sharing reductions at this time and the related burden on issuers to provide for these disclosures. We expect that the vast majority (approximately 99 percent) of the total number of SBCs provided in accordance with § 156.425(c) will be sent electronically at minimal cost. We estimate that the labor costs associated with producing each SBC will be approximately $1.63 (3 minutes for an administrative assistant at an hourly wage rate of $32.59), and that printing, and mailing costs will be $0.69 ($0.05 to print each page and $0.49 for first class postage), for a total cost of $2.32 per SBC. We estimate a total annual cost of $165 for each QHP issuer and $95,120 for all QHP issuers that are subject to this requirement.
In § 156.1130, we established requirements for QHP issuers related to data collection and submission of information regarding a quality improvement strategy (QIS). QIS standards will establish the minimum requirements for the FFEs, States with plan management functions and that State-based Exchanges must follow. State-based Exchanges can, if desired, build additional reporting requirements in accordance with their needs.
Because SADPs will not be included in the initial years, this estimate assumes 575 QHP issuers (all issuers in all Marketplaces excluding SADPs) and covers the annual costs for a QHP issuer over a 3-year period (2016–2018). The burden associated with submitting initial attestations as part of the QHP certification process is currently accounted for under OMB Control Number 0938–1187. We estimate that it will take each QHP issuer 48 hours (at a cost of $3,372) to collect this QIS data and to submit this information to the Exchange. Therefore, we estimate an aggregate burden of 27,600 hours and $1,938,900 for 575 QHP issuers as a result of these requirements.
Copies of the supporting statement and any related forms for information collections identified above can be found at:
This final rule sets forth standards related to the premium stabilization programs (risk adjustment, reinsurance, and risk corridors) for the 2016 benefit year, as well as certain modifications for the 2015 benefit year, that will protect issuers from the potential effects of adverse selection and protect consumers from increases in premiums due to issuer uncertainty. The Premium Stabilization Rule and the 2014 and 2015 Payment Notices provided detail on the implementation of these programs, including the specific parameters for the 2014 and 2015 benefit years applicable to these programs. This final rule sets forth
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 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995, Pub. L. 104–4), Executive Order 13132 on Federalism (August 4, 1999), and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. A regulatory impact analysis (RIA) must be prepared for rules with economically significant effects ($100 million or more in any 1 year).
OMB has determined that this final rule is “economically significant” within the meaning of section 3(f)(1) of Executive Order 12866, because it is likely to have an annual effect of $100 million in any 1 year. Accordingly, we have prepared an RIA that presents the costs and benefits of this rule.
Although it is difficult to discuss the wide-ranging effects of these provisions in isolation, the overarching goal of the premium stabilization, market standards, and Exchange-related provisions and policies in the Affordable Care Act is to make affordable health insurance available to individuals who do not have access to affordable employer-sponsored coverage. The provisions within this final rule are integral to the goal of expanding access to affordable coverage. For example, the premium stabilization programs help prevent risk selection and decrease the risk of financial loss that health insurance issuers might otherwise expect in 2016 and the advance payments of the premium tax credit and cost-sharing reduction programs assist low- and moderate-income consumers and American Indians/Alaska Natives in purchasing health insurance. The combined impacts of these provisions affect the private sector, issuers, and consumers, through increased access to health care services including preventive services, decreased uncompensated care, lower premiums, establishment of quality improvement strategy standards, and increased plan transparency. Through the reduction in financial uncertainty for issuers and increased affordability for consumers, these provisions are expected to increase access to affordable health coverage.
HHS anticipates that the provisions of this final rule will help further the Department's goal of ensuring that all consumers have access to quality, affordable health care and are able to make informed choices, that Exchanges operate smoothly, that premium stabilization programs work as intended, that SHOPs are provided flexibility, and that employers and consumers are protected from fraudulent and criminal activities. Affected entities such as QHP issuers will incur costs to comply with the provisions specified in the final rule, including administrative costs related to notices, quality improvement strategy requirements, training and recertification requirements, and, in some cases, establishing a larger provider network. In accordance with Executive Order 12866, HHS believes that the benefits of this regulatory action justify the costs.
In accordance with OMB Circular A–4, Table 13 below depicts an accounting statement summarizing HHS's assessment of the benefits, costs, and transfers associated with this regulatory action.
This final rule implements standards for programs that will have numerous effects, including providing consumers with affordable health insurance coverage, reducing the impact of adverse selection, and stabilizing premiums in the individual and small group health insurance markets and in an Exchange. We are unable to quantify certain benefits of this rule—such as improved health outcomes and longevity due to continuous quality improvement and increased insurance enrollment—and certain costs—such as the cost of providing additional medical services to newly-enrolled individuals. The effects in Table 13 reflect qualitative impacts and estimated direct monetary costs and transfers resulting from the provisions of this final rule for reinsurance contributing entities and health insurance issuers. The annualized monetized costs described in Table 13 reflect direct administrative costs to these entities as a result of these provisions, and include administrative costs related to notices, quality improvement strategy requirements, and training and recertification requirements that are estimated in the Collection of Information section of this final rule. The annual monetized transfers described in Table 13 include costs associated with the reinsurance contribution fee, FFE user fees, and the risk adjustment user fee paid to HHS by issuers, and additional MLR rebate payments from issuers to consumers. We also note that reinsurance administrative expenses, included in the reinsurance contribution rate, will increase slightly from 2015 to 2016. In addition, as a result of HHS's increased contract costs related to risk adjustment operations and risk adjustment data validation, we will collect a total of $50 million in risk adjustment user fees or $1.75 per enrollee per year from risk adjustment issuers, which is greater than the $0.96 per-enrollee-per-year risk adjustment user fee amount established for benefit year 2015. This increase is due in large part to risk adjustment data validation costs that will occur in 2016. The increase in FFE user fee collections is a result of a constant user fee rate from 2015 to 2016 (3.5 percent) but expected growth in enrollment in the FFEs. We are also including costs associated with administrative appeals under § 156.1220 in the RIA of this final rule.
This RIA expands upon the impact analyses of previous rules and utilizes the Congressional Budget Office's (CBO) analysis of the Affordable Care Act's impact on Federal spending, revenue collection, and insurance enrollment. Table 14 summarizes the effects of the risk adjustment and reinsurance programs on the Federal budget from fiscal years 2015 through 2018, with the additional, societal effects of this proposed rule discussed in this RIA. We do not expect the provisions of this final rule to significantly alter CBO's estimates of the budget impact of the risk adjustment, reinsurance, and risk corridors programs that are described in Table 14. For this RIA, we are shifting the estimates for the risk adjustment and reinsurance programs to reflect the 4-year period from fiscal years 2015 through 2018, because these payments and charges will begin in the 2015 calendar year for the 2014 benefit year. We note that transfers associated with the risk adjustment and reinsurance programs were previously estimated in the Premium Stabilization Rule; therefore, to avoid double-counting, we do not include them in the accounting statement for this final rule (Table 13).
In addition to utilizing CBO projections, HHS conducted an internal analysis of the effects of its regulations on enrollment and premiums. Based on these internal analyses, we anticipate that the quantitative effects of the provisions finalized in this rule are consistent with our previous estimates in the 2015 Payment Notice for the impacts associated with the cost-sharing reduction program, the advance payments of the premium tax credit program, the premium stabilization programs, and FFE user fee requirements.
The final rule will trigger review of rate increases that meet or exceed the applicable review threshold when such increases happen at the “plan” level rather than at the “product” level. This will protect consumers against unreasonable rate increases for their plans, since, under current regulations,
This final rule provides that when an issuer of a QHP, a plan otherwise subject to risk corridors, a risk adjustment covered plan, or a reinsurance-eligible plan, experiences a change in ownership as recognized by the State in which the plan is offered, the issuer must notify HHS in a manner specified by HHS, by the latest of (1) the date the transaction is entered into; or (2) the 30th day prior to the effective date of the transaction. We expect that upon notification, issuers may need to work with HHS to clarify operational processes related to the HHS-administered programs, and will follow with guidance related to such operational processes. We estimate the administrative costs associated with the notification requirement in the Collection of Information section of this final rule.
In § 155.222, we proposed information collection and disclosure requirements that pertain to the approval of vendors to have their FFE agent and broker training and information verification programs recognized as sufficient for agents and brokers to satisfy the training requirement to assist or facilitate enrollment in individual market or SHOP coverage through the FFEs. We also establish a monitoring and appeals process for such HHS-approved vendors. We estimate that five vendors that apply may not have their application approved, and one vendor may have their approval revoked, and all of those vendors will appeal HHS's determination and submit additional documentation to HHS. We estimate that filing an appeal with HHS will take no longer than 1 hour. Therefore, at an hourly wage rate of $24.10, we estimate a total cost of $144.60 as a result of this appeals process.
The risk adjustment program is a permanent program created by the Affordable Care Act that transfers funds from lower risk, non-grandfathered plans to higher risk, non-grandfathered plans in the individual and small group markets, inside and outside the Exchanges. We established standards for the administration of the risk adjustment program in subparts D and G of part 45 of the CFR.
A State approved or conditionally approved by the Secretary to operate an Exchange may establish a risk adjustment program, or have HHS do so on its behalf. As described in the 2014 and 2015 Payment Notices, if HHS operates risk adjustment on behalf of a State, it will fund its risk adjustment program operations by assessing a risk adjustment user fee on issuers of risk adjustment covered plans. For the 2016 benefit year, we estimate that the total cost for HHS to operate the risk adjustment program on behalf of States for 2016 will be approximately $50 million, and that the risk adjustment user fee would be approximately $1.75 per enrollee per year. The increased risk adjustment user fee for 2016 is the result of the increased contract costs to support the risk adjustment data validation process.
The Affordable Care Act directs that a transitional reinsurance program be established in each State to help stabilize premiums for coverage in the individual market by helping to pay the cost of treating high-cost enrollees. In the 2014 and 2015 Payment Notices, we expanded upon the standards set forth in subparts C and E of the Premium Stabilization Rule and established the 2014 and 2015 uniform reinsurance payment parameters and national contribution rate. In this rule, we finalize the 2016 uniform reinsurance payment parameters and contribution rate and a modification to the 2015 benefit year attachment point.
Section 153.220(c) provides that HHS will publish the uniform per capita reinsurance contribution rate for the upcoming benefit year in the annual HHS notice of benefit and payment parameters. Section 1341(b)(3)(B)(iii) of the Affordable Care Act specifies that $10 billion for reinsurance contributions is to be collected from contributing entities for the 2014 benefit year (the reinsurance payment pool), $6 billion for the 2015 benefit year, and $4 billion for the 2016 benefit year. Additionally, sections 1341(b)(3)(B)(iv) and 1341(b)(4) of the Affordable Care Act direct that $2 billion in funds is to be collected for contribution to the U.S. Treasury for the 2014 benefit year, $2 billion for the 2015 benefit year, and $1 billion for the 2016 benefit year. Finally, section 1341(b)(3)(B)(ii) of the Affordable Care Act allows for the collection of additional amounts for administrative expenses. Taken together, these three components make up the total dollar amount to be collected from contributing entities for 2014, 2015 and 2016 benefit years for the reinsurance program under the uniform per capita contribution rate.
In the 2015 Payment Notice, we estimated that the Federal administrative expenses of operating the reinsurance program would be $25.4 million, based on our estimated contract and operational costs. We used the same methodology to estimate the administrative expenses for the 2016 benefit year. We estimate this amount to be approximately $32 million for the 2016 benefit year. This estimate increased for the 2016 benefit year due to increased audit and data validation contract costs. We believe that this figure reflects the Federal government's significant economies of scale, which helps to decrease the costs associated with operating the reinsurance program. Based on our estimate of covered lives for which reinsurance contributions are to be made for 2016, we are finalizing a uniform reinsurance contribution rate of $0.17 annually per capita for HHS administrative expenses. If a State establishes its own reinsurance program, HHS would transfer $0.085 of the per capita administrative fee to the State for purposes of administrative expenses incurred in making reinsurance payments, and retain the remaining $0.085 to offset the costs of collecting contributions. We note that the administrative expenses for reinsurance payments will be distributed to those States that operate their own reinsurance program in proportion to the State-by-State total requests for reinsurance payments made
The Affordable Care Act creates a temporary risk corridors program for the years 2014, 2015, and 2016 that applies to QHPs, as defined in § 153.500. Section 1342 of the Affordable Care Act directs the Secretary to establish a temporary risk corridors program that protects issuers against inaccurate rate setting from 2014 through 2016. The Affordable Care Act establishes the risk corridors program as a Federal program; consequently, HHS will operate the risk corridors program under Federal rules with no State variation.
We finalize a clarification to the risk corridors transitional adjustment for benefit year 2014. We clarify that we intend to implement the risk corridors transitional adjustment for transitional plans only, as stated in the 2015 Payment Notice. This clarification does not affect the impact of the risk corridors transitional adjustment.
For benefit year 2016, we are finalizing the treatment of excess risk corridors collections that may remain after the 3-year duration of the program. We will adjust the allowable administrative cost ceiling and profit floor so that any excess risk corridors collections that remain in benefit year 2016 are paid out to eligible QHP issuers. We anticipate that collections will fully offset payments over the 3-year duration of the program. Consequently, we do not believe that this provision will have a monetary impact on QHP issuers or the Federal government.
The SHOP facilitates the enrollment of eligible employees of small employers into small group health insurance plans. A qualitative analysis of the costs and benefits of establishing a SHOP was included in the RIA published in conjunction with the Exchange Establishment Rule.
Please see the Collection of Information section of this proposed rule for the costs expected to be incurred by State-based SHOPs and QHP issuers participating in the SHOP related to the notification requirements related to terminations of coverage or enrollment through the SHOP and the notification requirement for the coverage effective date under the new definition of an enrollee. We believe the cost associated with termination notices is justified because SHOPs are best positioned to provide meaningful notice regarding terminations due to loss of eligibility and nonpayment of premiums in a timely manner, while issuers are best positioned to provide meaningful notice when coverage or enrollment through the SHOP is terminated due to a rescission in accordance with § 147.128 or when the QHP is terminated, decertified, or its certification is not renewed, as well as notices of the effective date of coverage. We believe expanding the notice requirement under § 155.720(e) benefits all individuals with coverage, including dependents, former employees of a qualified employer, and certain business owners, with a notification of effective date of coverage.
To support the operation of FFEs, we require in § 156.50(c) that a participating issuer offering a plan through an FFE must remit a user fee to HHS each month equal to the product of the user fee rate specified in the annual HHS notice of benefit and payment parameters for the applicable benefit year and the monthly premium charged by the issuer for each policy under the plan where enrollment is through an FFE. For the 2016 benefit year, we are finalizing a monthly user fee rate equal to 3.5 percent of the monthly premium. As described in the Budget of the United States Government, Fiscal Year 2016, we expect approximately $1.514 billion in user fee collections would be obligated in fiscal year 2016. For the user fee charge assessed on issuers in the FFE, we received an exception to OMB Circular No. A–25R, which requires that the user fee charge be sufficient to recover the full cost to the Federal government of providing the special benefit. This exception ensures that the FFEs can support many of the goals of the Affordable Care Act, including improving the health of the population, reducing health care costs, and providing access to health coverage as advanced by § 156.50(d).
Issuers may incur minor administrative costs associated with altering benefits, cost-sharing and/or AV parameters of their plan designs to ensure compliance with the EHB requirements in this rule. For example, issuers that do not currently meet the standards for EHB prescription drug coverage will incur contracting and one-time administrative costs to bring their prescription drug benefits into compliance. HHS expects that the process for compliance with the revised EHB requirements will not significantly add to existing compliance costs because issuers have extensive experience in offering products with various benefits and levels of cost sharing and these modifications are expected to be relatively minor for most issuers.
In addition, we are adding standards for a health plan's formulary exception process that includes an external review. We believe that issuers that provide EHB already have formulary exceptions processes and procedures in place that allow an enrollee to request and gain access to clinically appropriate drugs not covered by the plan. We do not expect these requirements to significantly increase the volume of reviews conducted under issuers' contracts with Independent Review Organizations. Therefore, we do not anticipate that these requirements would result in any significant new cost for issuers.
Issuers may incur minor administrative costs associated with updating their provider directory to ensure compliance with the requirements under this final rule. Since issuers already maintain a directory and the expected modification is to re-locate that directory to a more user-friendly location on the issuer Web site, HHS expects that compliance will not demand any additional resources.
We revised § 156.200(b)(7), to clarify that a QHP issuer is required to comply with the standards under part 153 and not just the standards related to the risk adjustment program. Under § 156.340, notwithstanding any relationship(s) that a QHP issuer may have with delegated and downstream entities, a QHP issuer maintains responsibility for its compliance and the compliance of any of its delegated or downstream entities, as applicable, with all applicable standards, including the standards of subpart C of part 156 for each of its QHPs on an ongoing basis. Because we believe that QHP issuers have existing agreements with downstream entities that define responsibilities, we do not believe that this requirement will impose an additional burden on QHP issuers.
The Affordable Care Act provides for the reduction or elimination of cost sharing for certain eligible individuals enrolled in QHPs offered through the Exchanges. This assistance will help
To support the administration of the cost-sharing reduction program, we set forth in this final rule the reductions in the maximum annual limitation on cost sharing for silver plan variations. Consistent with our analysis in the 2014 and 2015 Payment Notices, we developed three model silver level QHPs and analyzed the impact on their AVs of the reductions described in the Affordable Care Act to the estimated 2016 maximum annual limitation on cost sharing for self-only coverage ($6,850). We do not believe these changes will result in a significant economic impact.
We are also finalizing the premium adjustment percentage for the 2016 benefit year. Section 156.130(e) provides that the premium adjustment percentage is the percentage (if any) by which the average per capita premium for health insurance coverage for the preceding calendar year exceeds such average per capita premium for health insurance for 2013. The annual premium adjustment percentage sets the rate of increase for three parameters detailed in the Affordable Care Act: The annual limitation on cost sharing (defined at § 156.130(a)), the required contribution percentage by individuals for minimum essential health coverage the Secretary may use to determine eligibility for hardship exemptions under Section 5000A of the Code, and the section 4980H(a) and section 4980H(b) assessable payment amounts (finalized at 26 CFR 54.4980H in the “Shared Responsibility for Employers Regarding Health Coverage,” published in the
The final rule provides continued recognition of State high risk pools as minimum essential coverage. This will facilitate the transition of State high risk pool enrollees into QHPs through the Exchange or into other forms of minimum essential coverage, while ensuring continued access to coverage. It will also help ensure that this vulnerable population will not be subject to the shared responsibility payment during this transition, and thereby avoid an increase in out-of-pocket costs.
The standards requiring QHP issuers participating in Exchanges to establish and submit information regarding a quality improvement strategy will encourage continuous quality improvement among QHP issuers to help strengthen system-wide efforts to improve health outcomes at lower costs, promote provider payment models that link quality and value of services, allow for flexibility and innovation of diverse market-based incentive approaches, encourage meaningful improvements as well as provide regulators and stakeholders with information to use for monitoring and evaluation purposes. We discuss the administrative costs associated with submitting this information in the Collection of Information section of this proposed rule.
In § 156.1220, we establish an administrative appeals process to address unresolved discrepancies for advance payments of the premium tax credit, advance payment and reconciliation of cost-sharing reductions, FFE user fees, and the premium stabilization programs, as well as any assessment of a default risk adjustment charge under § 153.740(b). We estimated the burden associated with the administrative appeals process in the 2015 Payment Notice, and in the Supporting Statement approved under OMB Control Number 0938–1155. We will revise the information collection currently approved OMB Control Number 0938–1155 with an October 31, 2015 expiration date. We do not believe that the provisions in this final rule will alter the economic impact of this requirement that was estimated in the 2015 Payment Notice.
This final rule clarifies the treatment of cost-sharing reductions in the MLR calculations. This final rule also ensures timely distribution of rebates for the benefit of subscribers of group health plans not subject to ERISA. Specifically, the amendments to the MLR provisions governing the distribution of rebates to group enrollees in non-Federal governmental and other group health plans not subject to ERISA ensure that group policyholders of such plans do not withhold the benefit of rebates from the enrollees for longer than 3 months. This final rule also provides an additional option for distribution of rebates by such policyholders. We do not anticipate that these provisions will have any significant effect on MLR program estimates. This final rule also amends the MLR regulations to provide that premium in MLR and rebate calculations should not be reduced by the amount of Federal and State employment taxes. Based on MLR data for the 2013 MLR reporting year, the clarification regarding the treatment of such taxes in the MLR and rebate calculations may result in additional rebate payments to consumers of approximately $35 million from issuers that previously interpreted the MLR December 1, 2010 interim final rule to permit the reduction of premium by the amount of such taxes.
When considering the final 2016 reinsurance payment parameters we also considered a set of uniform reinsurance payment parameters that would have substantially lowered the reinsurance cap, but believe those uniform reinsurance payment parameters would have raised the complexity of estimating the effects of reinsurance for issuers.
We also considered expanding the risk corridors transitional adjustment to apply to early renewal plans. This approach would have increased the impact of the risk corridors adjustment and altered the impact analysis related to the risk corridors transitional adjustment that was published in the 2015 Payment Notice. However, we decided not to propose or finalize this alternate policy.
We considered for the 2016 benefit year requiring issuers to separate visit limits for rehabilitative and habilitative services and devices. However, we determined that issuers' claims systems are unable to distinguish rehabilitative and habilitative services and devices at this time. Therefore, we determined that this requirement should not be effective until 2017 to allow issuers to modify their claims systems.
We considered ending the good faith compliance policy for QHP issuers. However, we determined that subjecting QHP issuers to increased punitive actions in the early years of the Exchange would be less effective than working with issuers to address compliance issues. We also considered
We considered not suppressing QHPs on the FFE, but this approach would have resulted in less flexibility for the FFE to address situations that could affect consumers' interests. For example, this alternative could cause disruption by requiring consumers to select a new QHP mid-year if their QHP was decertified rather than just suppressed for new enrollments.
We also considered not recognizing vendors as an alternative avenue for FFE training and information verification of agents and brokers. However, we believe that recognizing vendors will make it easier for agents and brokers to identify appropriate vendors who meet HHS standards for training and registration.
Additionally, we considered not requiring QIS reporting for QHP issuers. However, we decided to finalize the policy in this rule because we believe that QIS reporting will result in higher quality QHPs being offered in the Exchange and make it easier for consumers to select a high-quality QHP.
The Regulatory Flexibility Act (5 U.S.C. 601,
In this final rule, we set forth standards for the risk adjustment, reinsurance, and risk corridors programs, which are intended to stabilize premiums as insurance market reforms are implemented and Exchanges facilitate increased enrollment. Because we believe that insurance firms offering comprehensive health insurance policies generally exceed the size thresholds for “small entities” established by the SBA, we do not believe that an initial regulatory flexibility analysis is required for such firms.
For purposes of the RFA, we expect the following types of entities to be affected by this rule:
• Health insurance issuers.
• Group health plans.
• Reinsurance entities.
We believe that health insurance issuers and group health plans would be classified under the North American Industry Classification System (NAICS) code 524114 (Direct Health and Medical Insurance Carriers). According to SBA size standards, entities with average annual receipts of $35.5 million or less would be considered small entities for these NAICS codes. Issuers could possibly be classified in 621491 (HMO Medical Centers) and, if this is the case, the SBA size standard would be $32.5 million or less.
In this final rule, we set forth standards for employers that choose to participate in a SHOP Exchange. Until 2017, the SHOPs are limited by statute to employers with at least one but not more than 100 employees. For this reason, we expect that many employers who would be affected by these requirements would meet the SBA standard for small entities. We do not believe that these provisions impose requirements on employers offering health insurance through the SHOP that are more restrictive than the current requirements on small businesses offering employer-sponsored insurance. We believe the processes that we have established constitute the minimum amount of requirements necessary to implement the SHOP program and accomplish our policy goals, and that no appropriate regulatory alternatives could be developed to further lessen the compliance burden.
Based on data from MLR annual report submissions for the 2013 MLR reporting year, approximately 141 out of 500 issuers of health insurance coverage nationwide had total premium revenue of $38.5 million or less. This estimate may overstate the actual number of small health insurance companies that may be affected, since 77 percent of these small companies belong to larger holding groups, and many if not all of these small companies are likely to have non-health lines of business that would result in their revenues exceeding $38.5 million. Only 16 of these small entities owed a rebate for the 2013 reporting year, and none of these small entities are estimated to experience a rebate increase of more than 0.1 percent of total premium revenue under the MLR provisions of this final rule. None of the small entities that did not previously owe rebates are expected to owe rebates as a result of the provisions of this final rule. Based on data from MLR annual report submissions for the 2013 MLR reporting year, approximately 286,750 out of 1.6 million small group policyholders and 13,500 out of 228,000 large group policyholders nationwide were owed rebates for the 2013 reporting year. It is uncertain how many of the group policyholders obtaining coverage from health insurance issuers subject to MLR are both (a) small entities that fall below the size thresholds set by the SBA for various industries, and (b) enrolled in group health plans not subject to ERISA, and would therefore be subject to the proposed provisions related to MLR. However, the provisions of this final rule only establish a deadline for the use of MLR rebates by certain policyholders similar to the deadline that is already followed by most group policyholders, and do not otherwise alter the requirements for rebate use by such policyholders. In addition, the clarification regarding how health insurance issuers must treat cost-sharing reductions in their MLR calculations simply aligns the MLR regulatory language with the risk corridors program.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a rule that includes any Federal mandate that may result in expenditures in any 1 year by a State, local, or Tribal governments, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. In 2015, that threshold is approximately $141 million. Although we have not been able to quantify all costs, the combined administrative cost and user fee impact on State, local, or Tribal governments and the private sector may be above the threshold. Earlier portions of this RIA constitute our UMRA analysis.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule that imposes substantial direct costs on State and local governments, preempts State law, or otherwise has Federalism implications. Because States have flexibility in designing their Exchange and Exchange-related programs, State decisions will ultimately influence both administrative expenses and overall premiums. States are not required to establish an Exchange or risk adjustment or reinsurance program. For States electing to operate an Exchange, risk adjustment
In HHS's view, while this rule would not impose substantial direct requirement costs on State and local governments, this regulation has Federalism implications due to direct effects on the distribution of power and responsibilities among the State and Federal governments relating to determining standards relating to health insurance that is offered in the individual and small group markets. Each State electing to establish an Exchange must adopt the Federal standards contained in the Affordable Care Act and in this rule, or have in effect a State law or regulation that implements these Federal standards. However, HHS anticipates that the Federalism implications (if any) are substantially mitigated because under the statute, States have choices regarding the structure and governance of their Exchanges and risk adjustment and reinsurance programs. Additionally, the Affordable Care Act does not require States to establish these programs; if a State elects not to establish any of these programs or is not approved to do so, HHS must establish and operate the programs in that State.
In compliance with the requirement of Executive Order 13132 that agencies examine closely any policies that may have Federalism implications or limit the policy making discretion of the States, HHS has engaged in efforts to consult with and work cooperatively with affected States, including participating in conference calls with and attending conferences of the National Association of Insurance Commissioners, and consulting with State insurance officials on an individual basis.
Throughout the process of developing this proposed rule, HHS has attempted to balance the States' interests in regulating health insurance issuers, and Congress' intent to provide access to Affordable Insurance Exchanges for consumers in every State. By doing so, it is HHS's view that we have complied with the requirements of Executive Order 13132.
This rule is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801,
Health care, Health insurance, and Reporting and recordkeeping requirements.
Health care, Health insurance, Reporting and recordkeeping requirements, and State regulation of health insurance.
Administrative practice and procedure, Adverse selection, Health care, Health insurance, Health records, Organization and functions (Government agencies), Premium stabilization, Reporting and recordkeeping requirements, Reinsurance, Risk adjustment, Risk corridors, Risk mitigation, State and local governments.
Administrative practice and procedure, Claims, Health care, Health insurance, Health plans, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Health care access, Health insurance, Reporting and recordkeeping requirements, State and local governments, Required Contribution Percentage, Cost-sharing reductions, Advance payments of the premium tax credit, Administration and calculation of advance payments of the premium tax credit, Plan variations, Actuarial value.
Administrative appeals, Administrative practice and procedure, Administration and calculation of advance payments of the premium tax credit, Advertising, Advisory Committees, American Indian/Alaska Natives, Brokers, Conflict of interest, Consumer protection, Cost-sharing reductions, Grant programs-health, Grants administration, Health care, Health insurance, Health maintenance organization (HMO), Health records, Hospitals, Individuals with disabilities, Loan programs-health, Organization and functions (Government agencies), Medicaid, Payment and collections reports, Public assistance programs, Reporting and recordkeeping requirements, State and local governments, Sunshine Act, Technical assistance, Women, and Youth.
Administrative practice and procedure, Claims, Health care, Health insurance, Health plans, Medical loss ratio, Penalties, Premium revenues, Rebating Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Department of Health and Human Services amends 45 CFR parts 144, 147, 153, 154, 155, 156, and 158 as set forth below.
Secs. 2701 through 2763, 2791, and 2792 of the Public Health Service Act, 42 U.S.C. 300gg through 300gg–63, 300gg–91, and 300gg–92.
(1) The plan will be considered to be the same plan if it:
(i) Has the same cost-sharing structure as before the modification, or any variation in cost sharing is solely related to changes in cost or utilization of medical care, or is to maintain the same metal tier level described in sections 1302(d) and (e) of the Affordable Care Act;
(ii) Continues to cover a majority of the same service area; and
(iii) Continues to cover a majority of the same provider network. For this purpose, the plan's provider network on the first day of the plan year is compared with the plan's provider
(2) The plan will not fail to be treated as the same plan to the extent the modification(s) are made uniformly and solely pursuant to applicable Federal and State requirements if—
(i) The modification is made within a reasonable time period after the imposition or modification of the Federal or State requirement;
(ii) The modification is directly related to the imposition or modification of the Federal or State requirement.
(3) A State may permit greater changes to the cost-sharing structure, or designate a lower threshold for maintenance of the same provider network or service area for a plan to still be considered the same plan.
Secs 2701 through 2763, 2791 and 2792 of the Public Health Service Act (42 U.S.C. 300gg through 300gg–63, 300gg–91, and 300gg–92), as amended.
The revisions and addition read as follows:
(b) * * *
(1) * * *
(i) * * *
(C) With respect to coverage in the small group market, and in the large group market if such coverage is offered through a Small Business Health Options Program (SHOP) in a State, coverage must become effective consistent with the dates described in § 155.725 of this subchapter, except as provided in paragraph (b)(1)(iii) of this section.
(2)
(4)
(ii) In the individual market, enrollees must be provided 60 calendar days after the date of an event described in paragraph (b)(2) and (3) of this section to elect coverage, as well as 60 calendar days before certain triggering events as provided for in § 155.420(c)(2) of this subchapter.
(f)
The addition reads as follows:
(g)
(1) The date the transaction is entered into; or
(2) The 30th day prior to the effective date of the transaction.
Secs. 1311, 1321, 1341–1343, Pub. L. 111–148, 24 Stat. 119.
(c)
(a) * * *
(1) * * *
(iii) Such plan or coverage is expatriate health coverage, as defined by the Secretary, or for the 2015 and 2016 benefit years only, is a self-insured group health plan with respect to which enrollment is limited to participants who reside outside of their home country for at least 6 months of the plan year, and any covered dependents; or
(c)
The revisions read as follows:
(b)
(c) * * *
(1) Following submission of the annual enrollment count described in paragraph (b) of this section, HHS will notify the contributing entity of the reinsurance contribution amount allocated to reinsurance payments, administrative expenses, and the U.S. Treasury to be paid for the applicable benefit year.
(2) A contributing entity must remit reinsurance contributions to HHS no later than January 15, 2015, 2016, or 2017, as applicable, or, if such date is not a business day, the next business day, if making a combined contribution or the first payment of the bifurcated contribution, and no later than November 15, 2015, 2016, or 2017, as applicable, or, if such date is not a business day, the next business day, if making the second payment of the bifurcated contribution.
(d)
(g) * * *
(4) * * *
(i)
(ii)
(1) For benefit year 2014—
(i) For a QHP offered by a health insurance issuer with allowable costs of at least 80 percent of after-tax premium in a transitional State, the percentage specified by HHS for such QHPs in the transitional State; and otherwise
(ii) Zero percent.
(2) For benefit year 2015, for a QHP offered by a health insurance issuer in any State, 2 percent.
(3) For benefit year 2016—
(i) For a QHP offered by a health insurance issuer with allowable costs of at least 80 percent of after-tax premium, the percentage specified by HHS; and otherwise
(ii) Zero percent.
(a)
(c)
Section 2794 of the Public Health Service Act (42 U.S.C. 300gg–94).
The revisions and addition read as follows:
(1) For coverage effective prior to January 1, 2017, any increase of the rates for a specific product offered in the individual or small group market.
(2) For coverage effective on or after January 1, 2017, any increase of the rates for a specific product or plan within a product offered in the individual or small group market.
(a) A rate increase filed in a State, or effective in a State that does not require a rate increase to be filed, is subject to review if:
(1) The rate increase is 10 percent or more applicable to a 12-month period
(2) The rate increase meets or exceeds a State-specific threshold applicable to a 12-month period that begins on January 1, as calculated under paragraph (c) of this section, determined by the Secretary. A State-specific threshold shall be based on factors impacting rate increases in a State to the extent that the data relating to such State-specific factors is available by August 1. States interested in proposing a State-specific threshold for approval are required to submit a proposal to the Secretary by August 1.
(c) A rate increase meets or exceeds the applicable threshold set forth in paragraph (a) of this section if—
(1) For rates filed for coverage beginning before January 1, 2017, the average increase for all enrollees weighted by premium volume meets or exceeds the applicable threshold.
(2) For rates filed for coverage beginning on or after January 1, 2017, an increase in the plan-adjusted index rate (as described in § 156.80 of this subchapter) for any plan within the product meets or exceeds the applicable threshold.
(a) If any plan within a product is subject to a rate increase, a health insurance issuer must submit a Rate Filing Justification for all products in the single risk pool, including new or discontinuing products, on a form and in a manner prescribed by the Secretary.
A health insurance issuer must submit a Rate Filing Justification for all rate increases that are filed in a State, or effective in a State that does not require the rate increase to be filed, as follows:
(a) For rate increases for coverage effective prior to January 1, 2016:
(1) If a State requires that a proposed rate increase be filed with the State prior to the implementation of the rate, the health insurance issuer must submit to CMS and the applicable State the Rate Filing Justification on the date on which the health insurance issuer submits the proposed rate increase to the State.
(2) For all other States, the health insurance issuer must submit to CMS and the State the Rate Filing Justification prior to the implementation of the rate increase.
(b) For rate increases for coverage effective on or after January 1, 2016, the health insurance issuer must submit to CMS and the applicable State a Rate Filing Justification by the earlier of the following:
(1) The date by which the State requires that a proposed rate increase be filed with the State; or
(2) The date specified in guidance by the Secretary.
(b)
(i) For proposed rate increases subject to review, access from its Web site to at least the information contained in Parts I, II, and III of the Rate Filing Justification that CMS makes available on its Web site (or provide CMS's Web address for such information), and have a mechanism for receiving public comments on those proposed rate increases, no later than the date specified in guidance by the Secretary.
(ii) Beginning with rates filed for coverage effective on or after January 1, 2016, for all final rate increases (including those not subject to review), access from its Web site to at least the information contained in Parts I, II, and III of the Rate Filing Justification (as applicable) that CMS makes available on its Web site (or provide CMS's Web address for such information), no later than the first day of the annual open enrollment period in the individual market for the applicable calendar year.
(2) If a State intends to make the information in paragraph (b)(1)(i) of this section available to the public prior to the date specified by the Secretary, or if it intends to make the information in paragraph (b)(1)(ii) of this section available to the public prior to the first day of the annual open enrollment period in the individual market for the applicable calendar year, the State must notify CMS in writing, no later than 30 days prior to the date it intends to make the information public, of its intent to do so and the date it intends to make the information public.
(3) A State with an Effective Rate Review Program must ensure the information in paragraphs (b)(1)(i) and (ii) of this section is made available to the public at a uniform time for all proposed and final rate increases, as applicable, in the relevant market segment and without regard to whether coverage is offered through or outside an Exchange.
Title I of the Affordable Care Act, sections 1301, 1302, 1303, 1304, 1311, 1312, 1313, 1321, 1322, 1331, 1332, 1334, 1402, 1411, 1412, 1413, Pub. L. 111–148, 124 Stat. 119 (42 U.S.C. 18021–18024, 18031–18033, 18041–18042, 18051, 18054, 18071, and 18081–18083).
The revisions read as follows:
(2) An employer, employee, or former employee seeking eligibility for enrollment in a QHP through the SHOP for himself or herself, and, if the qualified employer offers dependent coverage through the SHOP, seeking eligibility to enroll his or her dependents in a QHP through the SHOP.
(c) * * *
(2) * * *
(i) For all entities subject to this standard, oral interpretation.
(A) For Exchanges and QHP issuers, this standard also includes telephonic interpreter services in at least 150 languages.
(B) For an agent or broker subject to § 155.220(c)(3)(i), beginning November 1, 2015, or when such entity been registered with the Exchange for at least 1 year, whichever is later, this standard also includes telephonic interpreter services in at least 150 languages.
(iii) For all entities subject to this standard, taglines in non-English languages indicating the availability of language services.
(A) For Exchanges and QHP issuers, beginning no later than the first day of the individual market open enrollment period for the 2017 benefit year, this standard also includes taglines on Web site content and any document that is critical for obtaining health insurance coverage or access to health care services through a QHP for qualified individuals, applicants, qualified employers, qualified employees, or enrollees. A document is deemed to be critical for obtaining health insurance coverage or access to health care services through a QHP if it is required to be provided by law or regulation to a qualified individual, applicant, qualified employer, qualified employee, or enrollee. Such taglines must indicate the availability of language services in at least the top 15 languages spoken by the limited English proficient population of the relevant State, as determined in guidance published by the Secretary.
(B) For an agent or broker subject to § 155.220(c)(3)(i), beginning on the first day of the individual market open enrollment period for the 2017 benefit year, or when such entity has been registered with the Exchange for at least 1 year, whichever is later, this standard also includes taglines on Web site content and any document that is critical for obtaining health insurance coverage or access to health care services through a QHP for qualified individuals, applicants, qualified employers, qualified employees, or enrollees. A document is deemed to be critical for obtaining health insurance coverage or access to health care services through a QHP if it is required to be provided by law or regulation to a qualified individual, applicant, qualified employer, qualified employee, or enrollee. Such taglines must indicate the availability of language services in at least the top 15 languages spoken by the limited English proficient population of the relevant State, as determined in guidance published by the Secretary.
(iv) For Exchanges, QHP issuers, and an agent or broker subject to § 155.220(c)(3)(i), Web site translations.
(A) For an Exchange, beginning no later than the first day of the individual market open enrollment period for the 2017 benefit year, content that is intended for qualified individuals, applicants, qualified employers, qualified employees, or enrollees on a Web site that is maintained by the Exchange must be translated into any non-English language that is spoken by a limited English proficient population that reaches 10 percent or more of the population of the relevant State, as determined in guidance published by the Secretary.
(B) For a QHP issuer, beginning no later than the first day of the individual market open enrollment period for the 2017 benefit year, if the content of a Web site maintained by the QHP issuer is critical for obtaining health insurance coverage or access to health care services through a QHP, within the meaning of § 156.250 of this subchapter, it must be translated into any non-English language that is spoken by a limited English proficient population that reaches 10 percent or more of the population of the relevant State, as determined in guidance published by the Secretary.
(C) For an agent or broker subject to § 155.220(c)(3)(i), beginning on the first day of the individual market open enrollment period for the 2017 benefit year, or when such entity has been registered with the Exchange for at least 1 year, whichever is later, content that is intended for qualified individuals, applicants, qualified employers, qualified employees, or enrollees on a Web site that is maintained by the agent or broker must be translated into any non-English language that is spoken by a limited English proficient population that reaches 10 percent or more of the population of the relevant State, as determined in guidance published by the Secretary.
(h)
(i)
(a)
(2) As part of the training program, the vendor must require agents and brokers to provide identifying information and proof of valid State licensure, and successfully complete the
(3) HHS will approve vendors on an annual basis for a given plan year, and each vendor must submit an application for each year that approval is sought.
(b)
(1) Submit a complete and accurate application by the deadline established by HHS, which includes demonstration of the following:
(i) Prior experience with successfully conducting online training, verification of valid State license, as well as providing technical support to a large customer base; and
(ii) The ability to conduct identity proofing.
(2) Adhere to HHS specifications for content, format, and delivery of training and information verification, which include offering continuing education units (CEUs) for at least five States in which a Federally-facilitated Exchange is operating.
(3) Collect, store, and share with HHS all data from agent and broker users of the vendor's training and information verification in a manner, format, and frequency specified by HHS, and protect the data in accordance with applicable privacy and security laws and regulations.
(4) Execute an agreement with HHS, in a form and manner to be determined by HHS, which requires the vendor to comply with HHS guidelines for interfacing with HHS data systems, the implementation of the training and information verification processes, and the use of all data collected.
(5) Permit any individual who holds a valid State license or equivalent State authority to sell health insurance products to access the vendor's training and information verification.
(c)
(d)
(e)
(e)
(1) In a Federally-facilitated Exchange, for first month (or binder payment) premiums:
(i) For coverage being effectuated under regular coverage effective dates, as provided for in §§ 155.410(f) and 155.420(b)(1), premium payment deadlines must be no earlier than the coverage effective date, but no later than 30 calendar days from the coverage effective date; and
(ii) For coverage being effectuated under special effective dates, as provided in § 155.420(b)(2), premium payment deadlines must be 30 calendar days from the date the issuer receives the enrollment transaction.
(2) [Reserved]
(e)
(2) For the benefit year beginning on January 1, 2016, the annual open enrollment period begins on November 1, 2015 and extends through January 31, 2016.
(f)
(i) January 1, 2015, for QHP selections received by the Exchange on or before December 15, 2014.
(ii) February 1, 2015, for QHP selections received by the Exchange from December 16, 2014 through January 15, 2015.
(iii) March 1, 2015, for QHP selections received by the Exchange from January 16, 2015 through February 15, 2015.
(2) For the benefit year beginning on January 1, 2016, the Exchange must ensure that coverage is effective—
(i) January 1, 2016, for QHP selections received by the Exchange on or before December 15, 2015.
(ii) February 1, 2016, for QHP selections received by the Exchange from December 16, 2015 through January 15, 2016.
(iii) March 1, 2016, for QHP selections received by the Exchange from January 16, 2016 through January 31, 2016.
The revisions and additions read as follows:
(b) * * *
(2) * * *
(i) In the case of birth, adoption, placement for adoption, or placement in foster care as described in paragraph (d)(2)(i) of this section, the Exchange must ensure that coverage is effective for a qualified individual or enrollee on the date of birth, adoption, placement for adoption, or placement in foster care, or it may permit the qualified individual or enrollee to elect a coverage effective date of the first of the month following the date of birth, adoption, placement for adoption, or placement in foster care, or in accordance with paragraph (b)(1) of this section. If the Exchange permits the qualified individual or enrollee to elect a coverage effective date of either the first of the month following the date of birth, adoption, placement for adoption or placement in foster care or in accordance with paragraph (b)(1) of this section, the Exchange must ensure
(iv) If a consumer loses coverage as described in paragraph (d)(1) or (d)(6)(iii), or gains access to a new QHP as described in paragraph (d)(7) of this section, if the plan selection is made on or before the day of the triggering event, the Exchange must ensure that the coverage effective date is on the first day of the month following the loss of coverage. If the plan selection is made after the day of the triggering event, the Exchange must ensure that coverage is effective in accordance with paragraph (b)(1) of this section or on the first day of the following month, at the option of the Exchange.
(v) In the case of a court order as described in paragraph (d)(2)(i) of this section, the Exchange must ensure that coverage is effective for a qualified individual or enrollee on the date the court order is effective, or it may permit the qualified individual or enrollee to elect a coverage effective date in accordance with paragraph (b)(1) of this section. If the Exchange permits the qualified individual or enrollee to elect a coverage effective date in accordance with paragraph (b)(1) of this section, the Exchange must ensure coverage is effective on the date duly selected by the qualified individual or enrollee.
(vi) If an enrollee or his or her dependent dies as described in paragraph (d)(2)(ii) of this section, the Exchange must ensure that coverage is effective on the first day of the month following the plan selection, or it may permit the enrollee or his or her dependent to elect a coverage effective date in accordance with paragraph (b)(1) of this section. If the Exchange permits the enrollee or his or her dependent to elect a coverage effective date in accordance with paragraph (b)(1) of this section, the Exchange must ensure coverage is effective on the date duly selected by the enrollee or his or her dependent.
(c) * * *
(2)
(3)
(d) * * *
(1) * * *
(ii) Is enrolled in any non-calendar year group health plan or individual health insurance coverage, even if the qualified individual or his or her dependent has the option to renew such coverage. The date of the loss of coverage is the last day of the plan or policy year;
(2)(i) The qualified individual gains a dependent or becomes a dependent through marriage, birth, adoption, placement for adoption, or placement in foster care, or through a child support order or other court order.
(ii) At the option of the Exchange, the enrollee loses a dependent or is no longer considered a dependent through divorce or legal separation as defined by State law in the State in which the divorce or legal separation occurs, or if the enrollee, or his or her dependent, dies.
(4) The qualified individual's or his or her dependent's, enrollment or non-enrollment in a QHP is unintentional, inadvertent, or erroneous and is the result of the error, misrepresentation, misconduct, or inaction of an officer, employee, or agent of the Exchange or HHS, its instrumentalities, or a non-Exchange entity providing enrollment assistance or conducting enrollment activities. For purposes of this provision, misconduct includes the failure to comply with applicable standards under this part, part 156 of this subchapter, or other applicable Federal or State laws as determined by the Exchange.
(6) * * *
(iv) A qualified individual in a non-Medicaid expansion State who was previously ineligible for advance payments of the premium tax credit solely because of a household income below 100 percent of the FPL, who was ineligible for Medicaid during that same timeframe, and who has experienced a change in household income that makes the qualified individual newly eligible for advance payments of the premium tax credit.
The revisions and additions read as follows:
(a)
(b) * * *
(1)
(ii) The Exchange must provide an opportunity at the time of plan selection for an enrollee to choose to remain enrolled in a QHP if he or she becomes eligible for other minimum essential coverage and the enrollee does not request termination in accordance with paragraph (b)(1)(i) of this section. If an enrollee does not choose to remain enrolled in a QHP in such a situation, the Exchange must initiate termination of his or her enrollment in the QHP upon completion of the redetermination process specified in § 155.330.
(iii) The Exchange must establish a process to permit individuals, including enrollees' authorized representatives, to report the death of an enrollee for purposes of initiating termination of the enrollee's Exchange enrollment. The Exchange may require the reporting party to submit documentation of the death. Any applicable premium refund, or premium due, must be processed by the deceased enrollee's QHP in accordance with State law.
(2)
(vi) Any other reason for termination of coverage described in § 147.106 of this subchapter.
(c)
(1) Establish mandatory procedures for QHP issuers to maintain records of termination of enrollment in a QHP through the Exchange;
(2) Send termination information to the QHP issuer and HHS, promptly and without undue delay in accordance with § 155.400(b).
(3) Require QHP issuers to make reasonable accommodations for all individuals with disabilities (as defined by the Americans with Disabilities Act) before terminating enrollment of such individuals through the Exchange; and
(4) Retain records in order to facilitate audit functions.
(d)
(2) In the case of a termination in accordance with paragraph (b)(1) of this section, the last day of enrollment through the Exchange is—
(iv) If the enrollee is newly eligible for Medicaid, CHIP, or the BHP, if a BHP is operating in the service area of the Exchange, the last day of enrollment in a QHP through the Exchange is the day before the individual is determined eligible for Medicaid, CHIP, or the BHP.
(v) The retroactive termination date requested by the enrollee, if specified by applicable State laws.
(3) In the case of a termination in accordance with paragraph (b)(2)(i) of this section, the last day of enrollment in a QHP through the Exchange is the last day of eligibility, as described in § 155.330(f), unless the individual requests an earlier termination effective date per paragraph (b)(1) of this section.
(4) In the case of a termination in accordance with paragraph (b)(2)(ii)(A) of this section, the last day of enrollment in a QHP through the Exchange will be the last day of the first month of the 3-month grace period.
(5) In the case of a termination in accordance with paragraph (b)(2)(ii)(B) of this section, the last day of enrollment in a QHP through the Exchange should be consistent with existing State laws regarding grace periods.
(6) In the case of a termination in accordance with paragraph (b)(2)(v) of this section, the last day of coverage in an enrollee's prior QHP is the day before the effective date of coverage in his or her new QHP, including any retroactive enrollments effectuated under § 155.420(b)(2)(iii).
(7) In the case of a termination due to death, the last day of enrollment in a QHP through the Exchange is the date of death.
(8) In cases of retroactive termination dates, the Exchange will ensure that appropriate actions are taken to make necessary adjustments to advance payments of the premium tax credit, cost-sharing reductions, premiums, claims, and user fees.
(e) * * *
(1)
(2)
(g) * * *
(3)
(6) * * *
(i) The Exchange must determine an applicant eligible for an exemption for any month if he or she is an Indian eligible for services through an Indian health care provider, as defined in 42 CFR 447.51 and not otherwise eligible for an exemption under paragraph (f) of this section, or an individual eligible for services through the Indian Health Service in accordance with 25 U.S.C. 1680c(a), (b), or (d)(3).
(iii) The IRS may allow an applicant to claim the exemption specified in paragraph (g)(6) of this section without obtaining an exemption certificate number from an Exchange.
(b) * * *
The additions and revisions read as follows:
(b) * * *
(4) * * *
(i) * * *
(B) Collect from each employer the total amount due and make payments to QHP issuers in the SHOP for all enrollees except as provided for in paragraph (b)(4)(ii)(A) of this section; and
(ii) * * *
(A) The SHOP may, upon an election by a qualified employer, enter into an agreement with a qualified employer to facilitate the administration of continuation coverage by collecting premiums for continuation coverage enrolled in through the SHOP directly from a person enrolled in continuation coverage through the SHOP consistent with applicable law and the terms of the group health plan, and remitting premium payments for this coverage to QHP issuers. A Federally-facilitated SHOP may elect to limit this service to the collection of premiums related to continuation coverage required under 29 U.S.C. 1161,
(7)
(10)
(i) For plan years beginning before January 1, 2016, subject to § 147.104 of this subchapter, a Federally-facilitated SHOP must use a minimum participation rate of 70 percent, calculated as the number of qualified employees accepting coverage under the employer's group health plan, divided by the number of qualified employees offered coverage, excluding from the calculation any employee who, at the time the employer submits the SHOP application, is enrolled in coverage through another employer's group health plan or through a governmental plan such as Medicare, Medicaid, or TRICARE. For purposes of this calculation, qualified employees who are former employees will not be counted.
(ii) For plan years beginning on or after January 1, 2016, subject to § 147.104 of this subchapter, a Federally-facilitated SHOP must use a minimum participation rate of 70 percent, calculated as the number of full-time employees accepting coverage offered by a qualified employer plus the number of full-time employees who, at the time the employer submits the SHOP group enrollment, are enrolled in coverage through another group health plan, governmental coverage (such as Medicare, Medicaid, or TRICARE), coverage sold through the individual market, or in other minimum essential coverage, divided by the number of full-time employees offered coverage.
(iii) Notwithstanding paragraphs (b)(10)(i) and (ii) of this section, a Federally-facilitated SHOP may utilize a different minimum participation rate in a State if there is evidence that a State law sets a minimum participation rate or that a higher or lower minimum participation rate is customarily used by the majority of QHP issuers in that State for products in the State's small group market outside the SHOP.
(e)
The revisions read as follows:
(e)
(2) For plan years beginning on or after January 1, 2017, the SHOP must ensure that a QHP issuer notifies an enrollee enrolled in a QHP through the SHOP of the effective date of his or her coverage.
(3) When a primary subscriber and his or her dependents live at the same address, a separate notice of the effective date of coverage need not be sent to each dependent at that address, provided that the notice sent to each primary subscriber at that address contains all required information about the coverage effective date for the primary subscriber and his or her dependents at that address.
(a)
(b)
(g)
(2) The effective date of coverage for a QHP selection received by the SHOP from a newly qualified employee must always be the first day of a month, and must generally be determined in accordance with § 155.725(h), unless the employee is subject to a waiting period consistent with § 147.116 of this subchapter, in which case the effective date may be on the first day of a later month, but in no case may the effective date fail to comply with § 147.116 of this subchapter.
(h)
(2) For a QHP selection received by the Federally-facilitated SHOP from a qualified employee in his or her initial or annual open enrollment period:
(i) Between the first and fifteenth day of any month, the Federally-facilitated SHOP must ensure a coverage effective date of the first day of the following month.
(ii) Between the 16th and last day of any month, the Federally-facilitated SHOP must ensure a coverage effective date of the first day of the second following month.
(i)
(i) The qualified employee terminates coverage from such QHP in accordance with standards identified in § 155.430;
(ii) The qualified employee enrolls in another QHP if such option exists; or
(iii) The QHP is no longer available to the qualified employee.
(2) The SHOP may treat a qualified employer offering coverage through the SHOP as offering the same coverage under § 155.705(b)(3) at the same level of contribution under § 155.705(b)(11) unless:
(i) The qualified employer is no longer eligible to offer such coverage through the SHOP;
(ii) The qualified employer elects to offer different coverage or a different contribution through the SHOP;
(iii) The qualified employer withdraws from the SHOP; or
(iv) In the case of a qualified employer offering a single QHP, the single QHP is no longer available through the SHOP.
(j) * * *
(5) The effective dates of coverage for special enrollment periods are determined using the provisions of § 155.420(b).
(k)
The revisions and additions read as follows:
(a)
(b)
(2) In the Federally-facilitated SHOP, an employer may terminate coverage or enrollment for all enrollees covered by the employer group health plan effective on the last day of any month, provided that the employer has given notice to the Federally-facilitated SHOP on or before the 15th day of any month. If notice is given after the 15th of the month, the Federally-facilitated SHOP may terminate the coverage or enrollment on the last day of the following month.
(c) * * *
(2) * * *
(ii) If premium payment is not received 31 days from the first of the coverage month, the Federally-facilitated SHOP may terminate the qualified employer for lack of payment. The termination would take effect on the last day of the month for which the Federally-facilitated SHOP received full payment.
(iii) If a qualified employer is terminated due to lack of premium payment, but within 30 days following its termination the qualified employer requests reinstatement, pays all premiums owed including any prior premiums owed for coverage during the grace period, and pays the premium for the next month's coverage, the Federally-facilitated SHOP must reinstate the qualified employer in its previous coverage. A qualified employer may be reinstated in the Federally-facilitated SHOP only once per calendar year.
(iv) Enrollees enrolled in continuation coverage required under 29 U.S.C. 1161,
(3)
(d)
(iii) The QHP in which the enrollee is enrolled terminates, is decertified as described in § 155.1080, or its certification as a QHP is not renewed;
(e)
(g)
(1) Except as provided in paragraph (g)(3) of this section, if any enrollee's coverage or enrollment through the SHOP is terminated due to non-payment of premiums or due to a loss of the enrollee's eligibility to participate in the SHOP, including where an enrollee loses his or her eligibility because a qualified employer has lost its eligibility, the SHOP must notify the enrollee of the termination. Such notice must include the termination effective date and reason for termination, and must be sent within 3 business days if an electronic notice is sent, and within 5 business days if a mailed hard copy notice is sent.
(2) Except as provided in paragraph (g)(3) of this section, if an employer group's coverage or enrollment through the SHOP is terminated due to non-payment of premiums or, where applicable, due to a loss of the qualified employer's eligibility to offer coverage through the SHOP, the SHOP must notify the employer of the termination. Such notice must include the termination effective date and reason for termination, and must be sent within 3 business days if an electronic notice is sent, and within 5 business days if a mailed hard copy notice is sent.
(3) Where State law requires a QHP issuer to send the notices described in paragraphs (g)(1) and (2) of this section, a SHOP is not required to send such notices.
(4) When a primary subscriber and his or her dependents live at the same address, a separate termination notice need not be sent to each dependent at that address, provided that the notice sent to each primary subscriber at that address contains all required information about the termination for the primary subscriber and his or her dependents at that address.
(d)
(b)
Title I of the Affordable Care Act, sections 1301–1304, 1311–1313, 1321–1322, 1324, 1334, 1342–1343, 1401–1402, Pub. L. 111–148, 124 Stat. 119 (42 U.S.C. 18021–18024, 18031–18032, 18041–18042, 18044, 18054, 18061, 18063, 18071, 18082, 26 U.S.C. 36B, and 31 U.S.C. 9701).
(c)
(c) * * *
(4) The plan described in paragraph (b)(2)(i) of this section for pediatric oral care benefits; and
(5) The plan described in paragraph (b)(3)(i) of this section for pediatric vision care benefits.
(a) * * *
(5) With respect to habilitative services and devices—
(i) Cover health care services and devices that help a person keep, learn, or improve skills and functioning for daily living (habilitative services). Examples include therapy for a child who is not walking or talking at the expected age. These services may include physical and occupational therapy, speech-language pathology and other services for people with disabilities in a variety of inpatient and/or outpatient settings;
(ii) Do not impose limits on coverage of habilitative services and devices that are less favorable than any such limits imposed on coverage of rehabilitative services and devices; and
(iii) For plan years beginning on or after January 1, 2017, do not impose combined limits on habilitative and rehabilitative services and devices.
(6) For plan years beginning on or after January 1, 2016, for pediatric services that are required under § 156.110(a)(10), provide coverage for enrollees until at least the end of the month in which the enrollee turns 19 years of age.
(a)
(b)
(1) Administrative data necessary to identify the health plan;
(2) Data and descriptive information for each plan on the following items:
(i) All health benefits in the plan;
(ii) Treatment limitations;
(iii) Drug coverage; and
(iv) Exclusions.
(a) * * *
(1) Subject to the exception in paragraph (b) of this section, covers at least the greater of:
(i) One drug in every United States Pharmacopeia (USP) category and class; or
(ii) The same number of prescription drugs in each category and class as the EHB-benchmark plan;
(2) Submits its formulary drug list to the Exchange, the State or OPM; and
(3) For plans years beginning on or after January 1, 2017, uses a pharmacy and therapeutics (P&T) committee that meets the following standards.
(i)
(A) Have members that represent a sufficient number of clinical specialties to adequately meet the needs of enrollees.
(B) Consist of a majority of individuals who are practicing physicians, practicing pharmacists and other practicing health care professionals who are licensed to prescribe drugs.
(C) Prohibit any member with a conflict of interest with respect to the issuer or a pharmaceutical manufacturer from voting on any matters for which the conflict exists.
(D) Require at least 20 percent of its membership to have no conflict of interest with respect to the issuer and any pharmaceutical manufacturer.
(ii)
(A) Meet at least quarterly.
(B) Maintain written documentation of the rationale for all decisions regarding formulary drug list development or revision.
(iii)
(A) Develop and document procedures to ensure appropriate drug review and inclusion.
(B) Base clinical decisions on the strength of scientific evidence and standards of practice, including assessing peer-reviewed medical literature, pharmacoeconomic studies, outcomes research data, and other such information as it determines appropriate.
(C) Consider the therapeutic advantages of drugs in terms of safety and efficacy when selecting formulary drugs.
(D) Review policies that guide exceptions and other utilization management processes, including drug utilization review, quantity limits, and therapeutic interchange.
(E) Evaluate and analyze treatment protocols and procedures related to the plan's formulary at least annually.
(F) Review and approve all clinical prior authorization criteria, step therapy protocols, and quantity limit restrictions applied to each covered drug.
(G) Review new FDA-approved drugs and new uses for existing drugs.
(H) Ensure the issuer's formulary drug list:
(
(
(c) A health plan providing essential health benefits must have the following processes in place that allow an enrollee, the enrollee's designee, or the enrollee's prescribing physician (or other prescriber, as appropriate) to request and gain access to clinically appropriate drugs not otherwise covered by the health plan (a request for exception). In the event that an exception request is granted, the plan must treat the excepted drug(s) as an essential health benefit, including by counting any cost-sharing towards the plan's annual limitation on cost-sharing under § 156.130 and when calculating the plan's actuarial value under § 156.135.
(1)
(i) A health plan must have a process for an enrollee, the enrollee's designee, or the enrollee's prescribing physician (or other prescriber) to request a standard review of a decision that a drug is not covered by the plan.
(ii) A health plan must make its determination on a standard exception and notify the enrollee or the enrollee's designee and the prescribing physician (or other prescriber, as appropriate) of its coverage determination no later than 72 hours following receipt of the request.
(iii) A health plan that grants a standard exception request must provide coverage of the non-formulary drug for the duration of the prescription, including refills.
(2)
(ii) Exigent circumstances exist when an enrollee is suffering from a health condition that may seriously jeopardize the enrollee's life, health, or ability to regain maximum function or when an enrollee is undergoing a current course of treatment using a non-formulary drug.
(iii) A health plan must make its coverage determination on an expedited review request based on exigent circumstances and notify the enrollee or the enrollee's designee and the prescribing physician (or other prescriber, as appropriate) of its coverage determination no later than 24 hours following receipt of the request.
(iv) A health plan that grants an exception based on exigent circumstances must provide coverage of the non-formulary drug for the duration of the exigency.
(3)
(i) If the health plan denies a request for a standard exception under paragraph (c)(1) of this section or for an expedited exception under paragraph (c)(2) of this section, the health plan must have a process for the enrollee, the enrollee's designee, or the enrollee's prescribing physician (or other prescriber) to request that the original exception request and subsequent denial of such request be reviewed by an independent review organization.
(ii) A health plan must make its determination on the external exception request and notify the enrollee or the enrollee's designee and the prescribing physician (or other prescriber, as appropriate) of its coverage determination no later than 72 hours following its receipt of the request, if the original request was a standard exception request under paragraph (c)(1) of this section, and no later than 24 hours following its receipt of the request, if the original request was an expedited exception request under paragraph (c)(2) of this section.
(iii) If a health plan grants an external exception review of a standard exception request, the health plan must provide coverage of the non-formulary drug for the duration of the prescription. If a health plan grants an external exception review of an expedited exception request, the health plan must provide coverage of the non-formulary drug for the duration of the exigency.
(d)(1) For plan years beginning on or after January 1, 2016, a health plan must publish an up-to-date, accurate, and complete list of all covered drugs on its formulary drug list, including any tiering structure that it has adopted and any restrictions on the manner in which a drug can be obtained, in a manner that is easily accessible to plan enrollees, prospective enrollees, the State, the Exchange, HHS, the U.S. Office of Personnel Management, and the general public. A formulary drug list is easily accessible when:
(i) It can be viewed on the plan's public Web site through a clearly identifiable link or tab without requiring an individual to create or access an account or enter a policy number; and
(ii) If an issuer offers more than one plan, when an individual can easily discern which formulary drug list applies to which plan.
(2) A QHP in the Federally-facilitated Exchange must make available the information described in paragraph (d)(1) of this section on its Web site in an HHS-specified format and also submit this information to HHS, in a format and at times determined by HHS.
(e) For plan years beginning on or after January 1, 2017, a health plan providing essential health benefits must have the following access procedures:
(1) A health plan must allow enrollees to access prescription drug benefits at in-network retail pharmacies, unless:
(i) The drug is subject to restricted distribution by the U.S. Food and Drug Administration; or
(ii) The drug requires special handling, provider coordination, or patient education that cannot be provided by a retail pharmacy.
(2) A health plan may charge enrollees a different cost-sharing amount for obtaining a covered drug at a retail pharmacy, but all cost sharing will count towards the plan's annual limitation on cost sharing under § 156.130 and must be accounted for in the plan's actuarial value calculated under § 156.135.
(c)
(a)
(b) * * *
(7) Comply with the standards under 45 CFR part 153.
(a)
(b)
(2) For plan years beginning on or after January 1, 2016, a QHP issuer must publish an up-to-date, accurate, and complete provider directory, including information on which providers are accepting new patients, the provider's location, contact information, specialty, medical group, and any institutional affiliations, in a manner that is easily accessible to plan enrollees, prospective enrollees, the State, the Exchange, HHS and OPM. A provider directory is easily accessible when—
(i) The general public is able to view all of the current providers for a plan in the provider directory on the issuer's public Web site through a clearly identifiable link or tab and without creating or accessing an account or entering a policy number; and
(ii) If a health plan issuer maintains multiple provider networks, the general public is able to easily discern which providers participate in which plans and which provider networks.
(c)
(a)
(2) A plan applying for QHP certification to be offered through a Federally-facilitated Exchange has a sufficient number and geographic distribution of ECPs if it demonstrates in its QHP application that—
(i) The network includes as participating providers at least a minimum percentage, as specified by HHS, of available ECPs in each plan's service area with multiple providers at a single location counting as a single ECP toward both the available ECPs in the plan's service area and the issuer's satisfaction of the ECP participation standard; and
(ii) The issuer of the plan offers contracts to—
(A) All available Indian health care providers in the service area, applying the special terms and conditions required by Federal law and regulations as referenced in the recommended model QHP addendum for Indian health care providers developed by HHS; and
(B) At least one ECP in each of the ECP categories (Federally Qualified Health Centers, Ryan White Providers, Family Planning Providers, Indian Health Care Providers, Hospitals and other ECP providers) in each county in the service area, where an ECP in that category is available and provides medical or dental services that are covered by the issuer plan type.
(3) If a plan applying for QHP certification to be offered through a Federally-facilitated Exchange does not satisfy the ECP standard described in paragraph (a)(2) of this section, the issuer must include as part of its QHP application a narrative justification describing how the plan's provider network provides an adequate level of service for low-income enrollees or individuals residing in Health Professional Shortage Areas within the plan's service area and how the plan's provider network will be strengthened toward satisfaction of the ECP standard prior to the start of the benefit year.
(4) Nothing in paragraphs (a)(1) through (3) of this section requires any QHP to provide coverage for any specific medical procedure.
(5) A plan that provides a majority of covered professional services through physicians employed by the issuer or through a single contracted medical group may instead comply with the alternate standard described in paragraph (b) of this section.
(b)
(2) A plan described in paragraph (a)(5) of this section applying for QHP certification to be offered through a Federally-facilitated Exchange has a sufficient number and geographic distribution of employed or contracted providers if it demonstrates in its QHP application that—
(i) The number of its providers that are located in Health Professional Shortage Areas or five-digit zip codes in which 30 percent or more of the population falls below 200 percent of the Federal Poverty Line satisfies a minimum percentage, specified by HHS, of available ECPs in the plan's service area with multiple providers at a single location counting as a single ECP; and
(ii) The issuer's integrated delivery system provides all of the categories of services provided by entities in each of the ECP categories in each county in the plan's service area as outlined in the general ECP standard, or otherwise offers a contract to at least one ECP outside of the issuer's integrated delivery system per ECP category in
(3) If a plan does not satisfy the alternate ECP standard described in paragraph (b)(2) of this section, the issuer must include as part of its QHP application a narrative justification describing how the plan's provider networks provide an adequate level of service for low-income enrollees or individuals residing in Health Professional Shortage Areas within the plan's service area and how the plan's provider network will be strengthened toward satisfaction of the ECP standard prior to the start of the benefit year.
(c)
(d)
(e)
A QHP issuer must provide all information that is critical for obtaining health insurance coverage or access to health care services through the QHP, including applications, forms, and notices, to qualified individuals, applicants, qualified employers, qualified employees, and enrollees in accordance with the standards described in § 155.205(c) of this subchapter. Information is deemed to be critical for obtaining health insurance coverage or access to health care services if the issuer is required by law or regulation to provide the document to a qualified individual, applicant, qualified employer, qualified employee, or enrollee.
(d)
(a)
(b)
(1) Provide the enrollee with a notice of termination that includes the termination effective date and reason for termination.
(2) [Reserved]
(c)
(g)
(i)
The revisions and addition read as follows:
(b) * * *
(1) Enroll a qualified employee in accordance with the qualified employer's initial and annual employee open enrollment periods described in § 155.725 of this subchapter;
(4) Adhere to effective dates of coverage established in accordance with § 155.725 of this subchapter.
(c) * * *
(3) Notify new enrollees of their effective date of coverage consistent with § 155.720(e) of this subchapter.
(d)
(1) Comply with the following requirements with respect to termination of enrollees in the SHOP:
(i)(A) Effective in plan years beginning on or after January 1, 2015, requirements regarding termination of
(B) General requirements regarding termination of coverage or enrollment established in § 156.270(a).
(iii)(A) Effective in plan years beginning on or after January 1, 2015, requirements regarding termination of coverage or enrollment effective dates as set forth in § 155.735 of this subchapter, if applicable to the coverage or enrollment being terminated; otherwise
(B) Requirements regarding termination of coverage or enrollment effective dates as set forth in § 156.270(i).
(2) [Reserved]
(d) * * *
(1) * * *
(ii) If a QHP issuer terminates an enrollee's coverage or enrollment through the SHOP in accordance with § 155.735(d)(1)(iii) or (v) of this subchapter, the QHP issuer must notify the qualified employer and the enrollee of the termination. Such notice must include the termination effective date and reason for termination, and must be sent within 3 business days if an electronic notice is sent, and within 5 business days if a mailed hard copy notice is sent. When a primary subscriber and his or her dependents live at the same address, a separate termination notice need not be sent to each dependent at that address, provided that the notice sent to each primary subscriber at that address contains all required information about the termination for the primary subscriber and his or her dependents at that address.
(a) * * *
(1) Notify the Exchange of its decision prior to the beginning of the recertification process and adhere to the procedures adopted by the Exchange in accordance with § 155.1075 of this subchapter;
(2) Fulfill its obligation to cover benefits for each enrollee through the end of the plan or benefit year through the Exchange;
(5) Terminate the coverage or enrollment through the Exchange of enrollees in the QHP in accordance with § 156.270, as applicable.
(c)
(d) * * *
(4) * * *
(iii) If the excess cost sharing was not paid by the provider, then, if the enrollee requests a refund, the refund must be provided to the enrollee within 45 calendar days of the date of the request.
(h)
(c)
(c) * * *
(2) * * *
(i) For reconciliation of cost-sharing reduction amounts advanced for the 2014 and 2015 benefit years, an issuer of a QHP using the standard or simplified methodology may calculate claims amounts attributable to EHB, including cost sharing amounts attributable to EHB, by reducing total claims amounts by the plan-specific percentage estimate of non-essential health benefit claims submitted on the Uniform Rate Review Template for the corresponding benefit year, if the following conditions are met:
(A) The non-essential health benefits percentage estimate is less than 2 percent; and
(B) Out-of-pocket expenses for non-EHB benefits are included in the calculation of amounts subject to a deductible or annual limitation on cost sharing, but copayments and coinsurance rates on non-EHB benefits are not reduced under the plan variation.
(ii) [Reserved]
(d)
(c)
(a)
(b)
(1) The QHP issuer notifies HHS of its intent to withdraw the QHP from a Federally-facilitated Exchange when one of the exceptions to guaranteed renewability of coverage related to discontinuing a particular product or discontinuing all coverage under § 147.106(c) or (d) of this subchapter applies;
(2) Data submitted for the QHP is incomplete or inaccurate;
(3) The QHP is in the process of being decertified as described in § 156.810(c) or (d), or the QHP issuer is appealing a completed decertification as described in subpart J of this part;
(4) The QHP issuer offering the QHP is the subject of a pending, ongoing, or final State regulatory or enforcement action or determination that could affect the issuer's ability to enroll consumers or otherwise relates to the issuer offering QHPs in the Federally-facilitated Exchanges; or
(5) One of the exceptions to guaranteed availability of coverage related to special rules for network plans or financial capacity limits under § 147.104(c) or (d) of this subchapter applies.
(c) A multi-State plan as defined in § 155.1000(a) of this subchapter may be suppressed as described in paragraph (a) of this section if OPM notifies the Exchange that:
(1) OPM has found a compliance violation within the multi-State plan, or
(2) One of the grounds for suppression in paragraph (b) of this section exists for the multi-State plan.
(a)
(b)
(c)
(d)
(c)
(2) After receiving a request for review, the Administrator of CMS has the discretion to elect to review the CMS hearing officer's decision or to decline to review the CMS hearing officer's decision. If the Administrator of CMS elects to review the CMS hearing officer's decision, the Administrator of CMS will also review the statements of the issuer and CMS, and any other information included in the record of the CMS hearing officer's decision, and will determine whether to uphold, reverse, or modify the CMS hearing officer's decision. The issuer or CMS must prove its case by clear and convincing evidence for issues of fact. The Administrator of CMS will send the decision and the reasons for the decision to the issuer.
(3) The Administrator of CMS's determination is final and binding.
Section 2718 of the Public Health Service Act (42 U.S.C. 300gg–18), as amended.
(b) * * *
(1) * * *
(iii) Cost-sharing reduction payments received by the issuer to the extent not reimbursed to the provider furnishing the item or service.
(a) * * *
(2) Federal taxes not excluded from premium under subpart B of this part which include Federal income taxes on investment income and capital gains, as well as Federal employment taxes, as other non-claims costs.
(b) * * *
(2) * * *
(iv) State employment and similar taxes and assessments.
The revision and addition read as follows:
(b) * * *
(1) * * *
(iii) A cash refund to subscribers of the group health plan option for which the issuer is providing a rebate, who were enrolled in the group health plan option either during the MLR reporting year that resulted in the issuer providing the rebate or at the time the rebate is received by the policyholder;
(v) All rebate distributions made under paragraphs (b)(1)(i), (ii), or (iii) of this section must be made within 3 months of the policyholder's receipt of the rebate. Rebate distributions made after 3 months must include late payment interest at the current Federal Reserve Board lending rate or 10 percent annually, whichever is higher, on the total amount of the rebate, accruing from the date payment was due under this section.
Architectural and Transportation Barriers Compliance Board.
Notice of proposed rulemaking.
The Architectural and Transportation Barriers Compliance Board (Access Board or Board), is proposing to revise and update, in a single document, both its standards for electronic and information technology developed, procured, maintained, or used by federal agencies covered by section 508 of the Rehabilitation Act of 1973, and its guidelines for telecommunications equipment and customer premises equipment covered by Section 255 of the Communications Act of 1934. The proposed revisions and updates to the section 508-based standards and section 255-based guidelines are intended to ensure that information and communication technology covered by the respective statutes is accessible to and usable by individuals with disabilities.
Submit comments by May 28, 2015. Two hearings will be held on the proposed rule on:
1. March 5, 2015, 9:30 to 11:30 a.m., San Diego, CA and
2. March 11, 2015, 9:30 to 11:30 a.m., Washington, DC.
To preregister to testify at either of the hearings, contact Kathy Johnson at (202) 272–0041 (voice), (202) 272–0082 (TTY), or
Submit comments by any one of the following methods:
• Federal eRulemaking Portal:
• Email:
• Fax: 202–272–0081.
• Mail or Hand Delivery/Courier: Office of Technical and Information Services, Access Board, 1331 F Street NW., Suite 1000, Washington, DC 20004–1111.
All comments, including any personal information provided, will be posted without change to
The hearing locations are:
1. San Diego, CA: Manchester Grand Hyatt Hotel (Mission Beach A & B, 3rd floor), One Market Place, San Diego, CA 92101.
2. Washington, DC: Access Board conference room, 1331 F Street NW., Suite 800, Washington, DC 20004.
Witnesses can testify in person at the hearing in San Diego. Witnesses can testify in person or by telephone at the hearing in Washington, DC. Copies of the rule will not be available at the hearings. Call-in information and a communication access real-time translation (CART) web streaming link for the Washington, DC hearing will be posted on the Access Board's Web site at
Timothy Creagan, Access Board, 1331 F Street NW., Suite 1000, Washington, DC 20004–1111. Telephone: (202) 272–0016 (voice) or (202) 272–0074 (TTY). Email address:
In this preamble, the Architectural and Transportation Barriers Compliance Board is referred to as “Access Board,” “Board,” “we,” or “our.”
The Access Board encourages all persons interested in the rulemaking to submit comments on this proposed rule, as well as the preliminary assessment of its estimated benefits and costs. While the Board invites comment on any aspect of our proposed rule and regulatory assessment, we particularly seek information and data in response to the questions posed throughout this preamble. Instructions for submitting and viewing comments are provided under the
We are proposing to update our existing Electronic and Information Technology Accessibility Standards under section 508 of the Rehabilitation Act of 1973, (“508 Standards”), as well as our Telecommunications Act Accessibility Guidelines under Section 255 of the Communications Act of 1934 (“255 Guidelines”). Since the guidelines and standards were issued in 2000 and 1998 respectively, there has been a technological revolution, accompanied by an ever-expanding use of technology and a proliferation of accessibility standards globally. Technological advances have resulted in the widespread use of multifunction devices that call into question the ongoing utility of the product-by-product approach used in the Access Board's existing 508 Standards and 255 Guidelines. For example, since the existing 508 Standards were issued in 2000, mobile phones moved from devices with voice-only capability, to so-called “smartphones” offering voice, text, and video communications. Desktop computers are no longer the only information processing hardware: Mobile devices and tablets, which have very different input and output characteristics, can typically process vast amounts of electronic information and function like desktop computers or telephones. In recognition of these converging technologies, one of the primary purposes of the proposed rule is to replace the current product-based approach with requirements based on functionality, and, thereby, ensure that accessibility for people with disabilities keeps pace with advances in electronic and information technology.
Additionally, a number of voluntary consensus standards have been developed by standards organizations worldwide over the past decade. Examples of these standards include: The Web Accessibility Initiative's Web Content Accessibility Guidelines (WCAG) 2.0, EN 301 549 V1.1.1 (2014–02), “Accessibility requirements for public procurement of ICT products and services in Europe,” and the Human Factors Ergonomics Society's ANSI/HFES 200.2 (2008) ergonomics specifications for the design of accessible software. The harmonization with such international standards and guidelines creates a larger marketplace
These dramatic changes have led the Access Board to propose revisions to the existing 508 Standards and 255 Guidelines. We are proposing to update the two sets of regulatory provisions jointly to ensure consistency in accessibility across the spectrum of communication and electronic and information technologies and products. The proposed standards and guidelines would support the access needs of individuals with disabilities, while also taking into account the costs to federal agencies and manufacturers of telecommunications equipment of providing accessible electronic information and communication technology.
The term “information and communication technology” (ICT) is used widely throughout this preamble and the proposed rule. Unless otherwise noted, it is intended to broadly encompass electronic and information technology covered by Section 508, as well as telecommunications products, interconnected Voice over Internet Protocol (VoIP) products, and Customer Premises Equipment (CPE) covered by Section 255. Examples of ICT include computers, information kiosks and transaction machines, telecommunications equipment, multifunction office machines, software, Web sites, and electronic documents.
This proposed rule would eliminate 36 CFR part 1193 in its entirety, revise 36 CFR 1194, and add three new appendices to Part 1194 containing the Application and Scoping Requirements for the 508 Standards (Appendix A), the Application and Scoping Requirements for the 255 Guidelines (Appendix B), and new Technical Requirements that apply to both Section 508-covered and Section 255-covered ICT. In this preamble, the Board refers to specific provisions of the proposed new 508 Standards and 255 Guidelines by their proposed new section numbers: E101–103 (508 Chapter 1: Application and Administration); E201–208 (508 Chapter 2: Scoping Requirements); C101–103 (255 Chapter 1: Application and Administration); C201–206 (255 Chapter 2: Scoping Requirements); 301–302 (Chapter 3: Functional Performance Criteria); 401–413 (Chapter 4: Hardware); 501–504 (Chapter 5: Software); and 601–603 (Support Documentation and Services).
The proposed standards replace the current product-based approach with a functionality-based approach. The proposed technical requirements, which are organized along the lines of ICT functionality, provide standards to ensure that covered hardware, software, electronic content, and support documentation and services are accessible to people with disabilities. In addition, the proposed standards include functional performance criteria, which are outcome-based provisions for cases in which the proposed technical requirements do not address one or more features of ICT. The four major changes in the proposed 508 Standards are:
•
•
•
•
Given the trend toward convergence of technologies and ICT networks, the Access Board is updating the 255 Guidelines at the same time that it is updating the 508 Standards. The existing guidelines include detailed requirements for the accessibility, usability, and compatibility of telecommunications equipment and customer premises equipment. For example, the guidelines require input, output, display, control, and mechanical functions to be accessible to individuals with disabilities. The compatibility requirements focus on the need for standard connectors, compatibility of controls with prosthetics, and TTY compatibility. The guidelines define “usable” as providing access to information about how to use a product, and direct that instructions, product information, documentation, and technical support for users with disabilities be functionally equivalent to that provided to individuals without disabilities. The proposed guidelines include many non-substantive revisions to the existing requirements for clarity along with a few important new provisions. Two notable proposed additions to the proposed 255 Guidelines are:
•
•
Consistent with the obligation that federal agencies under Executive Orders 12866 and 13563 propose and adopt regulations only upon a reasoned determination that benefits justify costs, the proposed rule has been evaluated from a benefit-cost perspective in a preliminary regulatory impact analysis (Preliminary RIA) prepared by the Board's consulting economic firm. The focus of the Preliminary RIA is to define and, where possible, quantify and monetize the potential economic benefits and costs of the proposed 508 Standards and 255 Guidelines. We summarize its methodology and results below; a complete copy of this regulatory assessment is available on the Access Board's Web site (
To estimate likely incremental compliance costs attributable to the proposed rule, the Preliminary RIA estimates, quantifies, and monetizes costs in the following broad areas: (1) Costs to federal agencies and contractors related to policy development, employee training, development of accessible ICT, evaluation of ICT, and creation or remediation electronic documents; and (2) costs to manufacturers of telecommunications equipment and customer premises equipment of ensuring that that their respective Web sites and electronic support documentation conform to accessibility standards, including WCAG 2.0.
On the benefits side, the Preliminary RIA estimates likely incremental benefits by monetizing the value of three categories of benefits expected to accrue from the proposed 508 Standards: (a) Increased productivity of federal employees with certain disabilities who are expected to benefit from improved ICT accessibility; (b) time saved by members of the public with certain disabilities when using more accessible federal Web sites; and (c) reduced phone calls to federal agencies as members of the public with certain disabilities shift their inquiries and transactions online due to improved accessibility of federal Web sites. The Preliminary RIA, for analytical purposes, defines the beneficiary population as persons with vision, hearing, and speech disabilities, as well as those with manipulation, reach, or strength limitations. The Preliminary RIA does not formally quantify or monetize benefits accruing from the proposed 255 Guidelines due to insufficient data and methodological constraints.
Table 1 below summarizes the results from the Preliminary RIA with respect to the likely monetized benefits and costs, on an annualized basis, from the proposed 508 Standards and 255 Guidelines. All monetized benefits and costs are incremental to the applicable baseline, and were estimated for a 10-year time horizon using discount rates of 7 and 3 percent.
While the Preliminary RIA monetizes likely incremental benefits and costs attributable to the proposed rule, this represents only part of the regulatory picture. Today, though ICT is now woven into the very fabric of everyday life, millions of Americans with disabilities often find themselves unable to use—or use effectively—computers, mobile devices, federal agency Web sites, or electronic content. The Board's existing standards and guidelines are greatly in need of a “refresh” to keep up with technological changes over the past fifteen years. The Board expects this proposed rule to be a major step toward ensuring that ICT is accessible to and usable by individuals with disabilities—both in the federal workplace and society generally. Indeed, much—if not most—of the significant benefits expected to accrue from the proposed rule are difficult if not impossible to quantify, including: Greater social equality, human dignity, and fairness. Each of these values is explicitly recognized by Executive Order 13563 as important qualitative considerations in regulatory analyses.
Moreover, American companies that manufacture telecommunications equipment and ICT-related products would likely derive significant benefits from the harmonized accessibility standards. Given the relative lack of existing national and globally-recognized standards for accessibility of mobile technologies, telecommunications equipment manufacturers would greatly benefit from harmonization of the 255 guidelines with consensus standards. Similar benefits would likely accrue more generally to all ICT-related products as a result of harmonization.
It is also equally important to note that some potentially substantial incremental costs arising from the proposed rule are not evaluated in the Preliminary RIA, either because such costs could not be quantified or monetized (due to lack of data or for other methodological reasons) or are inherently qualitative. The impact of the proposed 255 Guidelines on telecommunications equipment manufacturers is, as the Preliminary RIA notes, particularly difficult to quantify due to lack of cost data and a dynamic telecommunications marketplace. As a consequence, for example, the Preliminary RIA thus neither quantifies nor monetizes potential compliance costs related to the proposed requirement that ICT providing real-time, two-way voice communication support RTT functionality.
The Access Board welcomes comments on all aspects of the Preliminary RIA to improve the assumptions, methodology, and estimates of the incremental benefits and costs of the proposed rule. The full Preliminary RIA posted on the Board's Web site poses numerous regulatory assessment-related questions or areas for public comment, and interested parties are encouraged to review that document and provide responsive data and other information. In addition, the Board sets forth below—in the section providing a more in-depth discussion of the Preliminary RIA—several additional questions on which it seeks input. See Section VIII.A.6 (Regulatory Process Matters—Preliminary Regulatory Impact Analysis—Conclusion).
Section 508 of the Rehabilitation Act of 1973, as amended (hereafter, “Section 508”), calls for the Access Board to issue and publish standards setting forth the technical and functional performance criteria necessary to implement the Act's accessibility requirements for electronic and information technology. The statute also provides that the Board shall periodically review and, as appropriate, amend the standards to reflect technological advances or changes in electronic and information technology. This proposed rule uses the term “508 Standards” to refer to the standards called for by the Rehabilitation Act.
Section 255 of the Communications Act of 1934, as amended (hereafter, “Section 255”), tasks the Access Board with the development of guidelines for accessibility of telecommunications equipment and customer premises equipment, and provides that the Board shall review and update the guidelines periodically. Note that reference is made here to “Section 255 of the Communications Act,” rather than the commonly used reference to “Section 255 of the Telecommunications Act of 1996” because the Telecommunications Act does not itself contain a section 255. Instead, the Telecommunications Act amended the Communications Act by adding a new section 255 to it. Therefore, for the sake of simplicity and accuracy, this proposed rule uses the term “255 Guidelines” to refer to the guidelines called for by the amended Communications Act.
As noted in the Summary above, this proposed rule seeks to revise and update both the 508 Standards and 255 Guidelines in a single rulemaking. The Access Board is taking this approach because we feel that the two sets of requirements, by virtue of their subject matter, are inextricably linked from a regulatory and policy perspective.
We issued the 255 Guidelines in 1998, 63 FR 5608 (Feb. 3, 1998), and these are available on our Web site at
The existing 508 Standards require federal agencies to ensure that persons
The existing 255 Guidelines require manufacturers of telecommunications equipment and customer premises equipment to ensure that new and substantially upgraded existing equipment is accessible to, and usable by, individuals with disabilities when readily achievable. See 36 CFR part 1193. The existing guidelines, as with the 508 Standards, define key terms (such as “telecommunications equipment” and “readily achievable”) and establish technical requirements for covered equipment, software, and support documentation. These guidelines also require manufacturers of covered equipment to consider inclusion of individuals with disabilities in their respective processes for product design, testing, trials, or market research.
In the years following our initial promulgation of the 508 Standards and 255 Guidelines, technology continued to evolve at a rapid pace. Pursuant to our statutory mandate, the Board deemed it necessary and appropriate to review and update the 508 Standards and 255 Guidelines in order to make them consistent with one another and reflective of technological changes. The Board formed the Telecommunications and Electronic and Information Technology Advisory Committee (hereafter, “Advisory Committee”) in 2006 to review the existing 508 Standards and 255 Guidelines and recommend amendments. The Advisory Committee's forty-one members comprised a broad cross-section of stakeholders representing industry, disability groups, and government agencies. The Advisory Committee also included representatives from the European Commission, Canada, Australia, and Japan. The Advisory Committee recognized the importance of standardization across markets worldwide and coordinated its work with standard-setting bodies in the U.S. and abroad, such as the World Wide Web Consortium (W3C®), and with the European Commission. The Advisory Committee addressed a range of issues, including new or convergent technologies, market forces, and international harmonization.
On April 3, 2008, the Advisory Committee presented us with its report (hereafter, “TEITAC Report”) recommending amendments to the 508 Standards and 255 Guidelines. The TEITAC Report is available at
Based on the TEITAC Report, the Board developed an Advance Notice of Proposed Rulemaking in 2010 (2010 ANPRM) to update the 508 Standards as well as the 255 Guidelines. On the recommendation of the Advisory Committee, the Board used the phrase “Information and Communication Technology” (ICT) to collectively refer to the products addressed by the rules. A complete discussion of this proposed change is found in Section VI.B (Section-by-Section Analysis—508 Standards: Application and Scoping—E103), and Section VI.C (Section-by-Section Analysis—255 Guidelines: Application and Scoping—C103). The 2010 ANPRM was published in the
The 2010 ANPRM began with two separate introductory chapters. “508 Chapter 1: Application and Administration,” contained provisions preceded by the letter “E,” and included scoping, application, and definition provisions particular to the 508 Standards. “255 Chapter 1: Application and Administration,” contained provisions preceded by the letter “C,” and included similar provisions particular to the 255 Guidelines. The 2010 ANPRM also included, in Chapter 2, a common set of functional performance criteria for the 508 Standards and the 255 Guidelines that required ICT to provide access to all functionality in at least one of each of ten specified modes. Chapter 3 contained technical requirements applicable to features of ICT found across a variety of platforms, formats, and media.
Chapters 4, 5, and 6 all contained technical requirements that were closely adapted from the Web Content Accessibility Guidelines (WCAG) 2.0 Success Criteria but rephrased as mandatory requirements. Chapter 4 addressed platforms, applications, interactive content, and applications. Chapter 5 covered access to electronic documents and common interactive elements found in content, and Chapter 6 addressed access to audio and visual content, as well as players of such content.
Chapter 7 addressed hardware aspects of ICT, such as standard connections and reach ranges. Chapter 8 addressed ICT with audio output functionality when that output is necessary to inform, alert, or transmit information or data. Chapter 9 addressed ICT supporting real-time simultaneous conversation in audio, text, or video formats and Chapter 10 covered product support documentation and services.
The Access Board held two public hearings on the 2010 ANPRM—March 2010 (San Diego, CA) and July 2010 (Washington, DC). We also received 384 written comments during the comment period. Comments came from industry, federal and state governments, foreign and domestic companies specializing in information technology, disability advocacy groups, manufacturers of hardware and software, trade associations, institutions of higher education, research and trade organizations, accessibility consultants, assistive technology industry and related organizations, and individuals.
In general, commenters agreed with our approach to addressing the accessibility of ICT through functionality rather than discrete product types. Commenters also expressed strong support for our efforts to update the 508 Standards and 255 Guidelines, as well as our decision to follow the Advisory Committee's recommendation to require harmonization with WCAG 2.0. However, many commenters expressed concern that the 2010 ANPRM was not user-friendly,
Upon reviewing the extensive and detailed comments on the 2010 ANPRM, the Board realized the need to reorganize the structure of the proposed rule. More importantly, we needed to obtain further public comment on major issues and harmonize with the European Commission's ICT standardization efforts that were already underway at that time. Accordingly, the Board issued a second ANPRM (2011 ANPRM) that, as discussed in detail below, differed significantly from the 2010 ANPRM in terms of both structure and content. The 2011 ANPRM was published in the
In response to public comments on the 2010 ANPRM that the length and organization of the document made it unwieldy, the Board consolidated and streamlined provisions into six chapters (from ten), consolidated advisories, and reduced the page count from close to 100 to less than 50. The Board also removed scoping and application language from the chapters containing technical provisions and relocated them to new chapters applicable to Section 508 (508 Chapters 1 and 2) and Section 255 (255 Chapters 1 and 2) respectively. We revised the overall structure of the functional performance criteria so that the provisions had parallel structure, and grouped technical requirements for similar functions together in the same chapter. To address inconsistencies in the 2010 ANPRM, where some chapters focused on features of products and others addressed specific types of products, the Board standardized its approach by removing references to types of products while focusing instead on specific features of products. We also removed specific proposed requirements relating to Web and non-Web content, documents and user applications, and referenced WCAG 2.0 instead.
Hearings were held in January 2012 in Washington, DC and in March 2012 in San Diego, CA. Additionally, ninety-one written comments were received in response to the 2011 ANPRM. Comments came from industry, federal and state governments, foreign and domestic companies specializing in information technology, disability advocacy groups, manufacturers of hardware and software, trade associations and trade organizations, institutions of higher education and research, accessibility consultants, assistive technology industry and related organizations, and individual stakeholders who did not identify with any of these groups.
In general, commenters continued to agree with our approach to address ICT accessibility by focusing on features, rather than discrete product types. Commenters supported the conciseness of the proposed provisions in the 2011 ANPRM, and asked for further streamlining where possible. Comments addressed a variety of other topics, which are discussed below in Section IV.E. (Rulemaking History—2010 and 2011 ANPRMs: Significant Issues), and Section V (Major Issues).
In this section, the Board collectively reviews the principle issues from the 2010 ANPRM and 2011 ANPRM in consolidated fashion.
Nearly two decades have passed since promulgation of the existing 508 Standards. Since that time, the types of—and uses for—electronic documents and other content have grown tremendously. This growth, coupled with the fact that the existing standards do not clearly spell out the scope of covered electronic content, led to inconsistencies in accessibility of electronic data and information across federal agencies. One of the goals of this rulemaking is thus to provide updated standards for electronic content that clearly delineate the accessibility requirements applicable to electronic content.
In the 2010 ANPRM, the Board proposed that, when federal agencies communicate using electronic content, that content would be required to comply with the revised 508 Standards when “(a) an official communication by the agency or a representative of the agency to federal employees which contains information necessary for them to perform their job functions; or (b) an official communication by an agency or a representative of the agency to a member of the public, which is necessary for them to conduct official business with the agency as defined by the agency's mission.” Many commenters disagreed with this approach because, in their view, all agency communications would fall into one of the two categories, and therefore no content would be exempt. In addition, commenters feared that our approach would require each employee to be capable of creating accessible content for all of his or her own individual communications. According to the commenters, this, in turn, would require costly training without necessarily resulting in greater accessibility.
We responded to these concerns in the 2011 ANPRM by proposing that electronic content need be made accessible only if it both communicated official agency business to a federal employee or a member of the public and fell into one of nine specified categories: (1) Content that is public facing; (2) content that is broadly disseminated throughout an agency, including templates; (3) letters adjudicating any cause within the agency's jurisdiction; (4) internal or external program and policy announcements; (5) notices of benefits, program eligibility, and employment opportunities and decisions; (6) forms, questionnaires, and surveys; (7) emergency notifications; (8) formal acknowledgements and receipts; and (9) educational and training materials. This included all formats of official communications by agencies, including Web pages, postings on social media, and email. Our intent was to clarify what information and data would be required to be accessible without placing an undue burden on government communications and operations.
Commenters to the 2011 ANPRM generally supported this approach. However, one commenter expressed concern that limiting coverage of electronic content to certain specific categories could lead to a non-inclusive work environment for employees and that agencies would make accessible only that content covered by the 508 Standards to the exclusion of anything else. Some commenters recommended that the Board associate templates with forms in one category and differentiate that category from the category containing questionnaires and surveys. Several commenters—including federal agencies—found the language in the provision on content that was “broadly disseminated” to be vague and
Another key issue addressed in the Board's advance notices of proposed rulemaking was the scope of exceptions to covered content. In the 2010 ANPRM, the Board proposed an exception for content stored solely for archival purposes or retained solely to preserve the exact image of the original hard copy. We retained that exception in the 2011 ANPRM, but added a second exception for “works in progress and drafts that are not public facing and that are intended for limited internal distribution.”
Commenters to the 2011 ANPRM raised many questions as to how those exceptions would apply. For example, some commenters expressed confusion about the exception for archival materials. Many commenters viewed “archival” as referring to content preserved in agencies' internal information technology content management systems, rather than public records preservation generally, and asked us to clarify what the Board meant by the term. Other commenters expressed concern that otherwise accessible materials might be rendered inaccessible during the archiving process.
In addition to making significant revisions in the 2011 ANPRM to covered content under the proposed 508 Standards, the Board also amended our approach to content subject to the 255 Guidelines. We proposed that “electronic content integral to the use of ICT” covered by the 255 Guidelines must conform to Level A and Level AA Success Criteria and Conformance Requirements specified for Web pages in WCAG 2.0, as incorporated by reference in C102 (Referenced Standards). The Board received no comments on this provision in the 2011 ANPRM.
In this proposed rule, the Board clarifies areas of confusion and makes various other changes to the scope of covered electronic content. We discuss our approach in further detail in Section V.A (Major Issues—Electronic Content), Section VI.B (Section-by-Section Analysis—508 Standards: Application and Scoping—E205), and Section VI.C (Section-by-Section Analysis—Technical Requirements—C203).
The Access Board and the World Wide Web Consortium (W3C)—the leading international standards organization for the World Wide Web—share a rich history of collaboration on guidelines for Web site accessibility. The existing 508 Standards and WCAG 1.0 were under development around the same time period in the late 1990s; WCAG 1.0 was finalized in May 1999, and the existing 508 Standards shortly thereafter in December 2000. The existing 508 Standards, § 1194.22—which addresses “Web-based Intranet and Internet Information and Applications”—has two endnotes, the first of which notes the Board's view that eleven out of our sixteen provisions of the standards are consistent with Web Content Accessibility Guidelines (WCAG) 1.0 Priority 1 Checkpoints. The remaining five provisions in that section do not have close analogs to WCAG 1.0 Priority 1 checkpoints, but they strongly influenced the development of the next iteration of WCAG, WCAG 2.0.
As part of the 508 Standards refresh, the Advisory Committee recommended—and the Access Board agreed—that closer harmonization with WCAG 2.0 was necessary to promote greater accessibility. Consequently, in the 2010 ANPRM, the Board proposed to include most Level A and Level AA WCAG 2.0 Success Criteria. However, rather than using the text of relevant portions of WCAG 2.0 verbatim, the Board restated those Success Criteria in mandatory language thought to be better suited for a regulatory environment. Comments to the 2010 ANPRM identified three major problems with that approach. First, many expressed concern that rephrasing WCAG 2.0's Success Criteria would introduce discrepancies in, and fragmentation of, the 508 Standards. Second, other commenters feared that rephrasing of success criteria, rather than incorporating WCAG 2.0 by reference, would make dynamic linkages in the online version of WCAG 2.0 to important supplementary information less available to the reader. These commenters emphasized the usefulness of the online in-context hypertext links to robust guidance materials as aids for understanding and applying the WCAG 2.0 Success Criteria. Lastly, commenters found our division of provisions (including the many rephrased WCAG Success Criteria) into those respectively oriented towards either documents or software to be somewhat arbitrary and counterproductive.
In response to these comments, the Access Board substantially revised the approach to WCAG 2.0 in the 2011 ANPRM. We proposed to require all covered content to conform to WCAG 2.0, which would be incorporated by reference in the proposed 508 Standards.
Commenters generally voiced strong support for the Board's decision to incorporate by reference WCAG 2.0 and apply it to all types of covered ICT, rather than simply seeking harmonization between WCAG 2.0 and the proposed rule. While commenters expressed concern as to how closely WCAG 2.0 would apply to some types of content, they generally supported the concept of expanding the application of WCAG 2.0 to all types of Web and non-Web ICT. A few commenters, including representatives of the software industry, also suggested that the rule allow for compliance with any subsequent and, as yet unpublished, revisions to WCAG 2.0 by the W3C.
Some commenters, on the other hand, requested that the Board return to its previous approach in the 2010 ANPRM, rather than incorporate WCAG 2.0 by reference. Most of these commenters believed that this approach would make the Board's rule easier to use because the necessary text would be contained in a single document. Some of these commenters also asserted that the structure of WCAG 2.0 is confusing and makes it difficult to separate the normative and non-normative portions.
In this NPRM, the Board is retaining the Level A and Level AA Success Criteria and Conformance Requirements in WCAG 2.0 for all ICT subject to Sections 508 and 255, including documents and software. The Board also proposes, as in the 2011 ANPRM, to incorporate WCAG 2.0 by reference, rather than restating its requirements in the proposed rule. Incorporating the WCAG Success Criteria verbatim in the rule would be unhelpful because they are best understood within the context of the original source materials. WCAG 2.0 incorporates context-sensitive hypertext links to supporting advisory materials. The two core linked resources are Understanding WCAG 2.0 and Techniques for WCAG 2.0. The first provides background information, including discussion of the intention behind each of the success criteria. The second provides model sample code for conformance. The linked expository of documents, which is publicly available online free of charge, comprise a rich and informative source of detailed technical assistance and are updated regularly by standing working committees. These linked resources are not themselves requirements and agencies adopting WCAG 2.0 are not bound by them.
The Board cannot accept the suggestion of software industry representatives that the proposed rule permit compliance with any follow-on versions of WCAG 2.0. Federal agencies cannot “dynamically” incorporate by reference future editions of consensus
We discuss incorporation of WCAG 2.0 in further detail below in Section V.B (Major Issues—WCAG 2.0 Incorporation by Reference), Section VI.B (Section-by-Section Analysis—508 Standards: Application and Scoping—E205 and E207.2), and Section VI.C (Section-by-Section Analysis—255 Guidelines: Application and Scoping—C203 and C205.2).
Over the years, agencies and other stakeholders had expressed confusion concerning the interaction between the technical requirements and functional performance criteria in the existing 508 Standards. To address this confusion, in the 2010 ANPRM, the Board proposed language to clarify that ICT may be deemed accessible if satisfying all applicable technical requirements, irrespective of whether the functional performance criteria had been met. In other words, the Board proposed that the technical requirements took precedence over the functional performance criteria in the sense that agencies should look first to applicable technical provisions, and only turn to the functional performance criteria when such requirements did not fully address the technology at issue. Commenters objected to this approach, citing the concern that ICT procurements satisfying only the technical requirements would not necessarily ensure sufficient access to individuals with disabilities.
We responded to this concern by proposing in the 2011 ANPRM that ICT be required to conform to the functional performance criteria in every case, even when technical provisions were met. We also proposed to use the functional performance criteria (as did the 2010 ANPRM) to evaluate equivalent facilitation. That is, a covered entity would have the option of applying the concept of equivalent facilitation in order to achieve conformance with the intent of the technical requirements, provided that the alternative afforded individuals with disabilities substantially equivalent or greater accessibility and usability than would result from compliance with the technical requirements.
Some commenters, such as those representing federal agencies, the disability community, and other interested parties applauded this approach. Other commenters representing industry objected, noting that functional performance criteria are subjective and cannot be tested objectively. Industry commenters stated that they could not guarantee that the functional performance criteria had been met unless they controlled all the components of the end-to-end solution.
In this NPRM, the Board is not proposing that the functional performance criteria apply in every case. However, the Board does propose application of the functional performance criteria (with some modifications) to determine equivalent facilitation (E101.2 and C101.2), and to assess accessibility when technical provisions do not address one or more features of ICT. The Board discusses this issue in further detail below in Section V.C (Major Issues—Functional Performance Criteria), Section VI.B (Section-by-Section Analysis—508 Standards: Application and Scoping—E203 and E204), and Section VI.C (Section-by-Section Analysis—255 Guidelines: Application and Scoping—C202).
As noted previously, the existing 508 Standards and 255 Guidelines were promulgated nearly fifteen years ago. At that time, TTYs were the most commonly available text-based system for communicating within a voice communication system. Since then, technology has greatly advanced to the point where, in addition to TTYs, multiple text-based means of communication are available in the marketplace. One such emerging means of communication is real-time text technology. RTT technology provides the ability to communicate using text messages that are transmitted in near real-time as each character is typed, rather than as a block of text after the entire message is completed. RTT is important as an equivalent alternative to voice communications for persons who are deaf, or who have limited hearing or speech impairments. It allows the recipient to read the sender's text as soon as it is entered, thus making RTT more conversational and interactive, in a manner similar to a telephone conversation. This also makes RTT particularly useful in an emergency situation when speed and accuracy of a message—or even a partial message—are critical.
The Advisory Committee examined real-time text technology and recommended that the Board update the 508 Standards and 255 Guidelines to include specifications for RTT. More specifically, the Advisory Committee recommended that, when hardware or software provides real-time voice conversation functionality, it must provide at least one means of RTT communication. See TEITAC Report, Part 6, Subpt. C, Rec. 6–A. With respect to interoperability (
In keeping with the Advisory Committee's recommendation, the Board proposed in the 2010 ANPRM, to require ICT providing real-time voice communication to support RTT
Commenters responding to the RTT-related proposals in the 2010 ANPRM generally supported RTT, but offered mixed views on the Board's proposed technical specifications. Commenters representing people with disabilities strongly supported inclusion of RTT functionality requirements in the proposed rule. They emphasized, among other things, that RTT represented a major advance by allowing persons with hearing- or speech-related disabilities to communicate through real-time text on mainstream devices, rather than having to use special and expensive devices (such as TTYs). They were critical, however, of the Board's decision not to incorporate a specific VoIP-related interoperability standard. Commenters representing people with disabilities (and also academia) urged the Board to adopt RFC 4103 for RTT interoperating with VoIP using SIP, and provided information to support its use as a referenceable standard. Commenters from industry, on the other hand, encouraged the Board to take a cautious approach to RTT. They believed that, while RTT technology held promise as a major improvement in text communication (particularly in emergency situations), it was not sufficiently mature at that time to warrant adoption of a particular interoperability standard—including RFC 4103—for Internet-based calls. Commenters also objected to the proposed character and transmission delay rates as being overly prescriptive, thus potentially restricting the development of future technologies. (No commenters took issue with the Board's proposal to incorporate TIA 825–A as the standard for interoperability with PSTN.)
Based on these comments, in the 2011 ANPRM, the Board proposed to retain the references to the TIA 825–A standard for TTY signals on the PSTN, and to add a requirement for conformance with the RFC 4103 standard for VoIP products or systems using SIP. We did not retain the provisions specifying character and transmission delay rates. Overall, commenters largely supported the Board's revisions to RTT-related requirements in the 2011 ANPRM. However, several commenters representing industry and a local government agency asserted that RTT was not sufficiently mature or deployed widely enough to be useful. Some commenters also identified other standards aside from RFC 4103 that were currently in use (
In this NPRM, the Board proposes to require that, where ICT provides real-time, two-way voice communication, such ICT must also support RTT functionality. Proposed 410.6 would require features capable of text generation to be compatible with real-time voice communication used on a network. ICT would be required to interoperate either within its own closed system or outside a network. For example, a closed communication system, such as within a federal agency, would be required to interoperate with either the publicly switched telephone network (PSTN) or Voice over Internet Protocol (VoIP) products or systems to support the transmission of real-time text. The Board believes that RTT is sufficiently mature as a technology (and has sufficiently proliferated in the current ICT marketplace) to warrant coverage in the proposed rule. For example, real-time instant messaging programs—such as Yahoo!®Messenger and AOL Instant Messenger's “Real-Time IM” —have, in the past, used proprietary protocols that were very similar to SIP.
Where federal agencies provide their employees with smartphones or similar technology, this NPRM would require such ICT to have the potential to communicate using RTT. The Board does not, however, thereby intend to require that all phone users (with or without disabilities) communicate using RTT in all circumstances. Similar to several other proposed accessibility features in the proposed rule, RTT must only be enabled and used when needed to ensure comparable access and use of ICT by persons with hearing disabilities. For example, federal managers will need to make clear that, when deaf or hard-of-hearing employees with agency-provided smartphones use RTT, coworkers without disabilities using agency smartphones will also need the RTT feature on their respective phones enabled. Such an approach ensures that communications among deaf and hearing coworkers are equally effective as voice conversations among employees who do not have hearing impairments. Employees who do not need to communicate using RTT would otherwise be able to disable or ignore this feature.
The Board does not suggest that other forms of electronic communication—text or email, for example—would not be used by deaf employees and their colleagues. However, RTT offers many of the same benefits as voice communication. For example, a deaf attorney may need to seek the advice of his supervisor or colleagues during a break in a sensitive negotiation. Given the urgency and time-sensitive nature of the communications between employees, the deaf employee may request that his colleagues make themselves available during the negotiation by enabling RTT on their phones.
The Board did not consider proposing that agencies be permitted to provide RTT-enabled phones to employees only upon request. We did not consider this approach for two significant reasons. First, making accessible ICT available only upon request would run counter to Section 508's basic premise that information and data must be accessible to all employees without special treatment or the necessity for individualized treatment. Permitting issuance of RTT-enabled smartphones only when requested or deemed needed would be no different than permitting agencies to procure inaccessible ICT, such as a copy machine, where they have not identified a need for the accessible features among current staff. Second, while a proposal permitting agencies to issue non-RTT smartphones absent a special request for RTT features might modestly reduce an agency's ICT costs (to the extent, if any, that the purchase cost of RTT-enabled smartphones exceeds the cost of smartphones without this feature) and allow agencies to take user preferences regarding RTT into account, such an alternative would erode the proposed rule's benefits because employees with disabilities who need RTT would not be able to communicate with coworkers who are using government-issued, non-RTT smartphones.
In terms of RTT standards, the Board is proposing to require that ICT interoperating with VoIP products using SIP must support the transmission of RTT that conforms to RFC 4103 (RTP Payload for Text Conversion (2005)). In the Major Issues section, the Board also seeks comment on whether additional standards for real-time text, which are in the process of being finalized (such as XEP–0301), should be referenced. See Section V.D, Question 8. We discuss RTT-related issues in further detail below in Section V.D (Major Issues—Real-Time Text), and Section VI.D (Section-by-Section Analysis—Technical Requirements and Functional Performance Criteria—section 410.6).
Assistive technology (AT) is hardware or software used to increase, maintain, or improve the functional capabilities of individuals with disabilities. Examples of assistive technology commonly used with computers include: Screen readers, screen magnification software, specialized keyboards, refreshable braille displays, and voice recognition software. Assistive technology provides access beyond that offered by so-called “mainstream” hardware or software.
Compatibility with assistive technology is a foundational concept common to the existing 508 Standards and 255 Guidelines. ICT and assistive technologies must generally work together to provide users with necessary interface functions and features. The existing 508 Standards include general requirements for ICT to be compatible with assistive technology. Section 1194.21(b) requires that applications not disrupt or disable activated features of other products that are identified as accessibility features where those features are developed and documented according to industry standards. Additionally, this section requires that applications not disrupt or disable activated features of any operating systems that are identified as accessibility features. Section 1194.21(b) is directed only to applications, and does not require assistive technology to be compatible with other assistive technology. Section 1194.21(d), moreover, obligates mainstream software to provide “sufficient information” about its user interface elements to assistive technology.
The existing 255 Guidelines, though taking a slightly different tact, also require mainstream products to be compatible with assistive technologies. Under these guidelines, telecommunications equipment must be compatible with “peripheral devices and specialized premises equipment commonly used by individuals with disabilities to achieve accessibility.” 36 CFR 1193.51. Compatibility is specified by provisions requiring: External access to controls and information needed for product operation, connection points for external audio processing devices, compatibility of controls with prosthetic devices, and TTY connectability and compatibility.
The existing 508 Standards and 255 Guidelines are, however, equally silent concerning whether (or how) their requirements apply to assistive technology. That is, while these standards and guidelines require ICT to interoperate with assistive technology, they do not directly regulate assistive technology. Over the years, this silence in the 508 Standards has led to confusion. We have thus viewed coverage of assistive technology as a key issue throughout the process of updating the 508 Standards and 255 Guidelines.
The Advisory Committee, when addressing assistive technology, offered several perspectives. First, to improve ICT–AT compatibility, the committee recommended updated—and more comprehensive—technical standards that require mainstream computer operating systems and software with user interfaces to “expose” (
In the 2010 and 2011 ANPRMs, which drew heavily from the TEITAC Report, the Board took similar approaches to assistive technology. These ANPRMs largely adopted the committee's recommended set of updated technical standards governing the program-level accessibility information mainstream operating systems and software must make available to assistive technology. The Board also proposed to require assistive technology to use this accessibility information to achieve interoperability. Commenters generally applauded the Board's proposed refresh of the interoperability requirements for mainstream operating systems and software, and viewed these requirements as a big step forward. Assistive technology vendors and trade organizations, however, uniformly objected to the imposition of requirements on assistive technology. They expressed a need to be wholly unconstrained to best serve consumers. They also expressed concern that accessibility services varied widely from platform to platform, and were often insufficient to support necessary features of their assistive technology products. All other commenter groups—including individuals with disabilities and the mainstream IT industry—advocated maintaining the minimal requirements for assistive technology included in the ANPRMs.
In this NPRM, the Board proposes to retain, with minimal changes, the technical interoperability requirements for mainstream operating systems and software from the prior ANPRMs. The Board also found commenters' arguments for inclusion of minimal requirements for assistive technology to be compelling. Accordingly, the Board has also retained the proposal requiring assistive technology to use the basic set of accessibility information provided by operating systems and software to achieve interoperability. We discuss these issues in further detail below in Section V.E (Major Issues—Assistive Technology), and Section VI.D (Section-by-Section Analysis—Functional
In order to ensure that ICT meets the needs of a wider range of users, the Board proposed in the 2010 ANPRM to revise the functional performance criterion for limited vision. The existing criterion specifies that ICT providing a visual mode of operation must furnish at least one accessible mode that accommodates visual acuity up to 20/70. The Board proposed to increase the covered acuity range to 20/200 (or a field of vision less than 20 degrees)—which is a common legal definition of blindness—to afford more individuals with disabilities the option of a visual mode of operation. Organizations representing persons with disabilities disagreed with the visual acuity proposed requirement, stating that it did not sufficiently address the needs of users with severe low vision. Industry groups suggested that the proposed visual acuity criterion contradicted several technical requirements. These commenters also indicated that our approach did not address features that could improve accessibility for persons with low vision, and were critical of the limitation that only one feature had to be provided for each mode of operation.
In response to these comments, in the 2011 ANPRM, the Access Board dispensed with specified measurements of visual acuity and relied instead on a functional approach reflective of the needs of users with low vision. We proposed that, when ICT provides a visual mode of operation, it must also provide at least one mode of operation that magnifies, one mode that reduces the field of vision, and one mode that allows user control of contrast. These modes would need to be supplied directly in the same ICT or through compatible assistive technology. Commenters to the 2011 ANPRM strongly approved of our approach to functional performance criteria for limited vision.
Accordingly, the Board proposes to retain this approach to functional performance criteria for limited vision in this propose rule. We discuss the issue in further detail in Section VI.B (Section-by-Section Analysis—Section 508 Application and Scoping—E203), Section VI.C (Section-by-Section Analysis—255 Guidelines Application and Scoping—C201.3), and Section VI.D (Section-by-Section Analysis—Functional Performance Criteria and Technical Requirements—302.2).
In its TEITAC Report, the Advisory Committee recommended that the Board make a nomenclature change to “closed functionality” from the existing term “self-contained, closed products” to better reflect a regulatory approach to ICT based on functionality, rather than type of product. The Advisory Committee observed that, due to technological changes since the promulgation of the existing standards and guidelines, some formerly “closed” product types were now open, while some formerly open product types were now closed—frequently by policy, rather than technological constraint. See TEITAC Report, Part 4, section 4.2. It suggested that when the functionality of a technology product is closed for any reason, including policy or technical limitations, then such product should be treated as having closed functionality.
In the 2010 ANPRM, the Board followed the Advisory Committee's recommendation and proposed to substitute the term “closed functionality” for “self-contained, closed products,” as used in the existing 508 Standards. See 36 CFR 1194.4. While both terms refer to ICT with characteristics that limit its functionality, the term “closed functionality”—in the Board's view—better describes situations where the ICT is locked down by policy, rather than design. This may occur, for example, when an agency provides computers with core configurations that cannot be changed or adjusted by a user. We proposed permitting ICT to have closed functionality; however, such ICT still would need to be accessible to and usable by individuals with disabilities without assistive technology. Commenters did not object to the new terminology of “closed functionality” but asked for more detail and clarity in the applicable standards.
In the 2011 ANPRM, the Access Board proposed specific requirements for ICT with closed functionality to ensure accessibility to individuals with disabilities, which included a provision requiring ICT with closed functionality to be speech-output enabled. The term “speech-output enabled” means that the ICT can transmit speech output. These proposed requirements were derived from the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines (ADA and ABA Accessibility Guidelines), 36 CFR Part 1191, Appendix D, section 707.5 Speech Output.
Commenters to the 2011 ANPRM generally supported our proposed requirement for “closed functionality,” and the Board proposes to retain it in this proposed rule. We discuss the issue further in detail below in Section VI.D (Section-by-Section Analysis—Functional Performance Criteria and Technical Requirements—section 402).
In the 2010 ANPRM, the Board reorganized the exceptions in the existing 508 Standards and recommended deleting three others that were unnecessary or had led to confusion. The three exceptions proposed for deletion were: § 1194.3(c) (assistive technology at federal employees' workstations); § 1194.3(d) (access to agency-owned ICT in public locations); and § 1194.3(f) (ICT equipment in maintenance spaces or closets). By proposing deletion of these three exceptions, the Board intended only administrative changes to clarify the 508 Standards; there was no intent to narrow their scope or application.
First, with respect to § 1194.3(c), which provides that assistive technology need not be supplied at all federal employees' workstations, the Board proposed its deletion because, in essence, it provided an exception where none was needed, and thus led to confusion. There is no general rule in the existing 508 Standards that agencies provide assistive technology at all employee workstations; rather, these standards merely require compatibility with assistive technology when ICT is not directly accessible.
Second, the Board proposed deletion of § 1194.3(d) because it conveys the impression that the 508 Standards govern the locations where ICT must be made available to the public. The 508 Standards do not, in any way, control where ICT is located. Therefore, the exception was unnecessary.
Third, the Board proposed to delete the exception in 1194.3(f) for ICT equipment located in maintenance spaces or closets frequented only by service personnel for “maintenance, repair, and occasional monitoring of equipment.” We reasoned that, since maintenance spaces or closets are already exempted from accessibility requirements under section F203.6 of the Architectural Barriers Act (ABA) Standards, there was no need for a similar exception in the 508 Standards.
Commenters' views on the proposed deletion of these three exceptions were mixed. On the one hand, most commenters supported removal of the exceptions pertaining to employee
Lastly, in the 2010 ANPRM, the Access Board proposed to revise and relocate the exception in § 1194.3(b), which exempts ICT acquired by a contractor that is “incidental to a contract” from compliance with 508 Standards. Specifically, the Board proposed deleting the phrase “incidental to a contract” and relocating the exception to a new section relating to federal contracts. We did so in an effort to streamline and clarify the text of this exception. Commenters criticized this approach as confusing, particularly since the phrase “incidental to a contract” is a well-established term within the federal procurement community—a group that would likely be significantly impacted by the provision. Consequently, in the 2011 ANPRM, the Board proposed to restore the exception in § 1194.3(b) to its original language. We retain this approach in this NRPM, and thereby propose to exempt ICT acquired by a federal contractor that is “incidental to a contract” from compliance with the 508 Standards.
We discuss exception issues in further detail below in Section VI.B (Section-by-Section—508 Standards: Application and Scoping—E202.3 and E202.4).
Section 1194.2(a)(2) of the existing 508 Standards requires agencies to provide supporting documentation when determining that procurement of a compliant product would impose an undue burden. In the 2010 ANPRM, the Access Board proposed to broaden the undue burden documentation requirement so that it applied not only to ICT procurement, but also to other situations in which the 508 Standards applied—namely, the development, maintenance, or use of ICT. We did not receive any comments directly related to this approach, but did receive a few comments requesting clarification of the factors to be addressed in the determination of undue burden. In the 2011 ANPRM, the Board retained the broadened scope of the undue burden documentation requirement, but clarified the factors to be applied in the undue burden calculus. We proposed that an agency would be required to consider the extent to which conformance would impose significant difficulty or expense in light of the resources available to the program or component for which the ICT is being procured, developed, maintained or used. Commenters generally supported this approach.
In this NPRM, in proposed E202.5.2, the Board retains the undue burden documentation requirement as proposed in the 2011 ANPRM. This proposed provision is discussed in detail below in Section VI.B (Section-by-Section Analysis—508 Standards: Application and Scoping—E202.5.2).
In 2006, as noted above, the Access Board convened a Telecommunications and Electronic and Information Technology Advisory Committee to review and update the existing standards and guidelines. The Advisory Committee met from 2006 to 2008. Four of the forty-one members of the Advisory Committee were international stakeholders: the European Commission, Canada, Australia, and Japan. Among other issues, the Advisory Committee addressed harmonization of standards across markets and worked closely with standard-setting bodies in the United States and abroad. The Advisory Committee issued its final report in 2008.
While the Access Board was in the process of updating its existing 508 Standards and 255 Guidelines, a similar process began in Europe to create the first European set of ICT accessibility standards. As a result of the 2005 EU–US Economic Initiative, the Access Board and the European Commission began to work closely on the issue of Information and Communications Technology standards (See:
In 2005, the European Commission released Mandate 376, “Standardisation Mandate to CEN, CENELEC, and ETSI in Support of European Accessibility Requirements for Public Procurement of Products and Services in the ICT Domain” (
In 2010, the Board released an ANPRM based on the 2008 TEITAC Report. We then published a second ANPRM in 2011 and took notice of the standardization work going on in Europe at the time, stating:
[T]he Board is interested in harmonizing with standards efforts around the world in a timely way. Accordingly, the Board is now releasing this second Advance Notice of Proposed Rulemaking (2011 ANPRM) to seek further public comment on specific questions and to harmonize with contemporaneous standardization efforts underway by the European Commission.
In February 2013, the European Commission published its draft standard EN 301 549 V1.0.0 (2013–02), “Accessibility requirements for public procurement of ICT products and services in Europe” (
In this NPRM, the Board makes several proposals that are similar to those in the most recently published EN 301 549. Both the proposed rule and EN 301 549 address the functions of technology, rather than categories of technologies. Similarly, both offer technical requirements and functional performance criteria for accessible ICT. For example, our use of the phrase “information and communication technology” (ICT) in this NRPM, as a replacement of the existing term “electronic and information technology,” originates in the common usage of ICT throughout Europe and the rest of the world. Moreover, both documents are organized in similar ways, in that they both have initial scoping and definitions chapters, followed by separate chapters containing technical requirements and functional performance criteria.
Organizationally, the documents differ in several respects. These general differences are outlined in Table 2 below:
In this NPRM, the Board proposes that where ICT provides real-time voice communication, it must also support real-time text (RTT) functionality, as described in 410.6. Most significantly, the Board proposes to require that where ICT interoperates with Voice over Internet Protocol (VoIP) products using Session Initiation Protocol (SIP), it must support the transmission of RTT that conforms to RFC 4103 (RTP Payload for Text Conversion (2005)). In the Major Issues section, the Board asks whether additional standards for real-time text, which are in the process of being finalized (such as XEP–0301), should also be referenced. See Section V.D, Question 8. The proposed rule limits the approach to RTT by proposing to only incorporate by reference a maximum of two standards for RTT interoperating with VoIP.
In contrast, EN 301 549 allows the use of multiple standards for RTT. In addition to referencing RFC 4103 (section 6.3.3(b)), it permits the use of four other standards and an unspecified “common specification” for RTT exchange. The only criterion in the common specification is that it must indicate a method for indicating loss or corruption of characters. For a further discussion of RTT functionality, see Section V.D (Major Issues—Real-Time Text) below.
We are not proposing to adopt the other four standards referenced by EN 301 549 because they are not applicable to the type of technology used in the United States. Just as mobile phones are not directly compatible between the United States and Europe (
The standards referenced by EN 301 549 address more than just real-time text functionality. Some are quite broad and address several communications features, such as video speed and accuracy. One example of such a standard is ETSI TS 126 114 (Universal Mobile Telecommunications System (UMTS)) which covers voice, video, and data transmission rates and speeds. This standard supports an approach to communication known as “total communication.” We are not proposing to adopt this approach. In the 2010 ANPRM, the Board proposed transmission accuracy rates and speeds for video, text and voice data, based on recommendations from the Advisory Committee. In response, we received numerous comments questioning the accuracy of the proposed rates, the sources for the proposals and the research underlying the proposed rates. Consequently, the Board removed those proposals in the 2011 ANPRM.
In this NPRM, the Board proposes that where ICT provides two-way voice communication that includes real-time video functionality, the quality of the video must be sufficient to support communication using sign language (section 410.8). The provision specifies a desired outcome and does not provide specific technical requirements. This approach resulted from public comments in response to our proposal in the 2010 ANPRM. Public commenters noted there were no existing standards supporting the technical requirements the Board had proposed concerning resolution, frame rates, and processing speed. In the 2011 ANPRM, the Board elected to remove those proposed technical requirements in favor of simply requiring the quality of the video to be sufficient to support communications using sign language. We received no comments on this approach, and retain it here in this NPRM.
EN 301 549, on the other hand, takes a different tact. In “6.6 Video Communication,” the standard specifies numeric measurements for such features as resolution (6.6.2), frame rates (6.6.3) and alternatives to video-based services (6.7). This approach is similar to our proposal in the 2010 ANPRM, which, as noted, the Board dropped due to significant negative comments.
In general, the approaches taken in EN 301 549 and this NPRM are similar and complimentary. The Access Board's proposed rule contains less detail in some proposed provisions, as discussed above. We elected to pursue this course in response to public comments and our desire to make use of a number of voluntary consensus standards by incorporating them by reference. This approach will result in better harmonization of accessibility standards worldwide.
The five major issues addressed in this NPRM are: (a) Scope of covered electronic content; (b) incorporation by reference of WCAG 2.0; (c) relationship between functional performance criteria and technical requirements; (d) coverage of real-time text; and (e) interoperability requirements for assistive technology. Each of these areas is discussed below.
In this NPRM, the Board aims to bring needed clarity to the scope of electronic content subject to accessibility requirements in the 508 Standards. Based on the language of the Rehabilitation Act, § 1194.1 of the existing standards speaks of federal agencies ensuring that federal employees and members of the public with disabilities have comparable “access to and the use of [electronic] information and data.” Given its breadth, federal agencies have—not altogether surprisingly—had difficulty applying this mandate. The existing requirement does not adequately address what is meant by comparable access to information and data. Consequently, there has been confusion over whether and how such electronic content must be made accessible. Agencies have been reluctant to apply the existing 508 Standards to electronic information and data, except for Web pages.
The proposed rule would address these deficiencies in the existing 508 Standards by clearly delineating the scope of covered electronic content, as well as specifying concrete, testable, technical requirements to ensure the accessibility of such content. The Board proposes that all covered electronic content would be required to conform to WCAG 2.0 Level A and Level AA Success Criteria and Conformance Requirements specified for Web pages or, where applicable, ISO 14289–1 (PDF/UA–1).
Covered electronic content would, under the proposed rule, include two discrete groups of content. First, the Board proposes in E205.2 that all public-facing content—which encompasses electronic information and data made available by agencies to members of the general public—must satisfy applicable accessibility requirements in the proposed rule (
The central principle underlying the accessibility requirement for public-facing content is the notion that federal agencies must ensure equal access to electronic information that they themselves directly make available to the general public by posting on a public fora. So, for example, if a federal agency posts a PDF version of a recent settlement agreement on its Web site as part of a press release, that document would need to comply with PDF/UA–1. Or, if an agency posts a video created by an advocacy organization on the agency's Web site (or, alternatively, on a social media site hosted by a third party), the agency would also be required to ensure that that electronic information complied with accessibility requirements in proposed E205.2 for public-facing content. On the other hand, if a federal agency is the plaintiff in a lawsuit and serves an electronic version of a legal brief on a corporate defendant, the agency's legal brief would not be considered public-facing content even if the corporation subsequently posts a copy of the agency's document on its own Web site.
Second, with respect to electronic content that is not public facing, the Board aims to limit the scope of covered content to eight discrete categories of agency official communications that are most likely to affect a significant number of federal employees or the general public. Proposed E205.3 would require an agency's non-public facing electronic content to meet the accessibility requirements in the proposed rule (
Specifically, proposed E205.3 sets forth the following eight categories of non-public facing agency official communications that must satisfy the accessibility requirements in the proposed 508 Standards: (1) Emergency notifications (
By limiting the scope of covered electronic content to these proposed eight categories of official communications, the Board intends to encourage agencies to do more to ensure that individuals with disabilities have comparable access to, and use of, electronic information and data. The Board does not intend this proposed approach to disturb or override the independent legal obligations of agencies—whether arising under sections 501 or 504 of the Rehabilitation Act or other statutes—to provide accessible communications as a reasonable accommodation or other required accommodations. For example, draft electronic documents exchanged by federal employees as part of an agency working group would not be covered by proposed E205.3, but might still be required to be accessible by Section 501 when needed by a federal employee with a disability to perform his or her job.
Notably absent from the proposed eight categories of non-public facing content is a type of content—namely, content “broadly disseminated throughout an agency”—that was included in the 2011 ANPRM. Several federal agencies and other commenters found this language to be vague and overbroad, and called for its revision or withdrawal. The Board acknowledges that the “broadly disseminated” category could, in practice, prove challenging to apply and lead to inconsistent implementation across agencies that the proposed 508 Standards are designed to address. Accordingly, the Board has not included “broadly disseminated” content as a category in the proposed rule. The Board nonetheless welcomes comment on this issue, and may include a “widely disseminated”-style category in the final rule should there prove to be a workable definition or metric to assess compliance.
Lastly, with respect to exceptions, the Board proposes in this NPRM an exception in E205.3 for non-public facing records maintained by the National Archives and Records Administration (NARA) for archival purposes under federal recordkeeping requirements. As proposed, such content—even if otherwise meeting the conditions in proposed E205.3 for electronic content that must be made accessible (
Though the 2011 ANPRM included an express exception for draft materials, no such exception is included in either proposed E205.2 (Public Facing) or E205.3 (Agency Official Communications) for two main reasons. First, public-facing content—such as that covered by proposed E205.2—should be equally accessible to all members of the public regardless of whether it is in draft or final form. For example, a draft policy published for comment on an agency Web site should be accessible so that all affected individuals may provide feedback. Secondly, drafts, by their very nature, would typically fall outside the scope of the eight categories of content constituting agency official communications subject to proposed E205.3. Only final electronic documents that are ready for distribution would qualify as the type of content identified in proposed categories 1 through 8 of this provision. For example, a draft memorandum by an agency component announcing a new telework policy would not constitute a “policy announcement” (Category 3) subject to proposed E205.3 until it is finalized and ready to be transmitted to its intended audience of component employees.
As noted above, the Board proposes in this NPRM to incorporate by reference WCAG 2.0. In the following sections, the Board discusses the rationale for, and certain issues related to, incorporation of this consensus standard.
We have four principal reasons for incorporation by reference of WCAG 2.0. They are as follows:
First, our approach is consistent with that taken by other international standards organizations dealing with this issue. Standards developed in Australia, New Zealand, and Canada already directly reference WCAG 2.0. Moreover, WCAG 2.0 serves as the basis for Web accessibility standards in Germany (under “BITV 2”), France (under “RGAA 2.2.1”) and Japan (under “JIS X 83141”) and has so far generated
Second, incorporation by reference of WCAG 2.0 is consistent with section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note), as well as Office of Management and Budget (OMB) Circular A–119, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities (1998), which direct agencies to use voluntary consensus standards in lieu of government-unique standards except where inconsistent with law or otherwise impractical. See
Third, our approach is consistent with that being taken by another federal agency addressing a similar topic, namely the Department of Transportation's recent final rule addressing, among other things, the accessibility of air carrier and ticket agent Web sites. See Nondiscrimination on the Basis of Disability in Air Travel, 78 FR 67882 (Nov. 12, 2013).
Fourth, incorporation of WCAG 2.0 directly serves the best interests of Americans with disabilities because it will help accelerate the spread of Web accessibility. The accessibility of the Web is essential to enable the participation of individuals with disabilities in today's information society.
The Access Board is proposing to require not only Web content to conform to the Level A and Level AA Success Criteria and Conformance Requirements in WCAG 2.0—an approach with which commenters to the 2010 and 2011 ANPRMs unanimously agreed—but also software and non-Web documents. Several commenters to the 2011 ANRPM were critical of this approach, and questioned the propriety of applying WCAG 2.0 to non-Web ICT. For the reasons noted below, the Board believes that applying WCAG 2.0 outside the web browser environment not only ensures greater accessibility for persons with disabilities, but also minimizes the incremental burden on regulated entities by simplifying compliance through incorporation of a technologically-neutral consensus standard.
Because WCAG 2.0 was written to be technology neutral, the language and phrasing of the Success Criteria can be applied to any technology found on the Web. Since most file types are found on the Web and much software is now Web-enabled, it is reasonable to utilize WCAG 2.0 to evaluate off-line documents and software interfaces with straightforward substitution of terms to address this new application. This approach has the potential to significantly simplify accessibility conformance and assessment.
We find support for our approach from two other sources, namely the European Commission's Standardization Mandate M 376 (M376) of March 2012 and the World Wide Web Consortium's WCAG2ICT Task Force (“Task Force”). The W3C formed the Task Force in June 2012 in part to address reservations, expressed by some of the commenters to our 2011 ANPRM, about applying the criteria for accessible Web content to off-line documents and software. W3C invited participation from subject-matter experts from around the world, including representatives of federal agencies and others who had concerns with our approach. The Task Force's final consensus report provides guidance concerning application of WCAG 2.0 to non-Web ICT, specifically non-Web documents and software. See W3C Web Accessibility Initiative, WSC Working Group Note—Guidance on Applying WCAG 2.0 to Non-Web Information and Communications Technologies (Sept. 5, 2013), available at
The Task Force analyzed each of the WCAG 2.0 Success Criteria to determine their suitability for application to non-Web content. There are thirty-eight Level A and Level AA Success Criteria in WCAG 2.0. The Task Force found that the majority of Success Criteria from WCAG 2.0 can be applied to non-Web documents and software with no, or only minimal, changes. Specifically, twenty-six Success Criteria do not include any Web-related terms and, therefore, can be applied directly as written and as described in the “Intent” sections of the most current version of “Understanding WCAG 2.0.” Thirteen of these twenty-six can be applied without any additional notes. The other thirteen also can be applied as written, but the Task Force provided additional informative notes in its report for the sake of clarity.
Of the remaining twelve Success Criteria, the Task Force found that eight of them can be applied as written when certain Web-specific terms or phrases like “Web page” are replaced with non-Web terms or phrases like “non-Web documents and software.” Additional notes are provided in the Task Force report to assist in the application of these Success Criteria to non-Web ICT. One example is Success Criterion 2.4.5 Multiple Ways. The Task Force noted that, when applied to the non-Web environment, this criterion requires that there be more than one way to locate a document (or software program) within a set of documents or programs. For mobile devices, this criterion could be satisfied by an operating system that makes files locatable by directory and search functions—features that are nearly ubiquitous among mobile operating systems in use today.
Another example is Success Criterion 3.2.3 Consistent Navigation. For this criterion, the Task Force noted that application to the non-Web environment would require consistency among navigational elements when such elements were repeated within sets of documents or software programs. To be conformant, navigational elements would be required to occur in the same relative order each time they are presented. It is unlikely that authors would provide navigation elements for a set of related documents and then present them differently from document to document, thereby defeating their purpose.
The Task Force's report also notes that applying the success criteria in WCAG 2.0 to non-Web ICT with closed functionality proves problematic when a success criterion assumes the presence of assistive technologies, since closed functionality—by definition—does not allow attachment or use of assistive technology. This might occur, for example, when an eBook allows assistive technologies to access all of the user interface controls of the eBook program (open functionality), but does not allow such technologies to access the actual content of books (closed functionality). The Task Force identified 14 success criteria for which compliance might prove challenging for developers of ICT products with closed functionality. We propose to resolve this issue by exempting ICT with closed functionality from certain WCAG 2.0 Success Criteria, in conjunction with the addition of requirements specific to such products in Chapter 402, Closed Functionality.
By incorporating WCAG 2.0 by reference, the proposed standards would provide a single set of requirements for Web sites, documents, and software. WCAG 2.0 addresses new technologies and is responsive to the fact that the characteristics of products (
While the WCAG 2.0 Success Criteria build on the heritage of the existing 508 Standards, they are generally more explicit than the standards. Careful attention was given during their development to ensure that the Success Criteria are written as objectively testable requirements. In addition, unlike the existing 508 Standards, WCAG 2.0 is written in a technologically neutral fashion, which makes it directly applicable to a wide range of content types and formats.
For example, operability of ICT through keyboards (or alternate keyboard devices) is often critical to accessibility. Persons who are blind or who have limited vision often use screen readers to navigate Web pages using only the keyboard. Keyboard operability is also essential for many individuals with motor impairments who use alternate keyboards, or input devices that act as keyboard emulators when accessing ICT because they find mouse pointing to be cumbersome or impossible. Keyboard emulators include voice recognition software, sip-and-puff software, and on-screen keyboards. The existing 508 Standards envision keyboard operability from both software and Web-based information or applications, but such requirements were not necessarily explicit. Section 1194.21(a) expressly mandates that, when software is designed to run on a keyboard, all product functions must generally be executable through a keyboard. With respect to Web-based information and applications, the 508 Standards are not so explicit. At the time these standards were promulgated, Web pages created with HyperText Markup Language (HTML®) were always keyboard operable. Therefore, an express requirement for keyboard operability by Web pages was unnecessary. The existing 508 Standards expressly require keyboard operability for Web pages that require applets and plug-ins to interpret page content since keyboard operation in these contexts was not ubiquitous. See 36 CFR 1194.22(m). Collectively, the existing 508 Standards thus address keyboard operability both within and outside the Web environment, but do so in a variety of ways.
Over the years, however, Web technologies have become more complex. Use of keyboards is often secondary to mouse or touch-only interfaces. Success Criterion 2.1.1 requires all functionality to be operable through a keyboard interface. Section 1194.21(a) of the existing 508 Standards requires that “[w]hen software is designed to run on a system that has a keyboard, product functions shall be executable from a keyboard where the function itself or the result of performing a function can be discerned textually.” This current wording is phrased as an input requirement based on output, and it leaves “discerned textually” as an undefined term. These are both flaws that may create accessibility gaps in application. For example, an operating system feature like “mouse keys” (where the keyboard cursor keys are used to steer the mouse pointer) satisfies this provision on its face, even though that feature is of no use to someone who cannot see the screen and relies on screen reading software. Success Criterion 2.1.1, on the other hand, while longer, only references input and uses no special jargon. This success criterion reads: “All functionality of the content [must be] operable through a keyboard interface without requiring specific timings for individual keystrokes, except where the underlying function requires input that depends on the path of the user's movement and not just the endpoints.”
The Access Board has created a comprehensive table comparing WCAG 2.0 Level A and AA Success Criteria to the corresponding requirements in the existing 508 Standards. The table can be found on our Web site at
In sum, there are 38 WCAG 2.0 Level A and AA Success Criteria. After careful comparison of these success criteria to the existing 508 Standards, the Access Board deems 22 success criteria to be substantially equivalent in substance to our existing standards. The Board estimates that agencies with content that meets this group of existing 508 Standards will incur no or minimal costs by virtue of incorporation of WCAG 2.0 into our proposed rule. For the remaining 16 success criteria the Board deems to be new, it is anticipated that agencies would, to a greater or lesser extent (depending on the content and criteria at issue), incur some costs when implementing WCAG 2.0.
Along with the incorporation by reference of WCAG 2.0, the Board also proposes to update six provisions in the existing 508 Standards related to Web content to account for technological changes or their respective obsolescence. These six provisions for which the Board proposes deletion or replacement are as follows:
We propose to replace § 1194.21(g) of the existing 508 Standards, which prohibits applications from overriding user-selected contrast and color selections and other individual display attributes, with a new section 503.2 User Preferences. As with § 1194.21(g), this proposed provision requires applications to permit user preferences from platform settings for display settings. However, proposed 503.2 also provides an exception for applications—such as Web software—that are designed to be isolated from their operating systems. By design, Web applications (such as, for example, software used to create interactive
We propose to delete § 1194.22(d) of the existing 508 Standards, which requires that Web documents be organized so they are readable without requiring an associated style sheet. Cascading style sheets (CSS) are now well supported by assistive technology and, consequently, this provision is unnecessary. For example, contemporary techniques using CSS to selectively hide irrelevant content from all users also selectively hides irrelevant content from users of assistive technology.
We propose to delete § 1194.22(k) of the existing 508 Standards, which permits text-only Web pages under certain circumstances, because incorporation of WCAG 2.0 success criteria renders this provision obsolete. While WCAG 2.0 does permit “conforming alternate versions,” text-only pages could not provide equivalent information or functionality for all but the most trivial Web content. The WCAG requirement for a conforming alternate version significantly exceeds the expectations for text only pages.
We propose to delete § 1194.22(l) of the existing 508 Standards, which applies when pages utilize scripting languages to display content or to create interface elements and requires the scripted information to be identified with functional text that can be read by assistive technology. Because WCAG 2.0 is technology neutral, inclusion of a separate provision applicable to scripting languages would be redundant; the same requirements that apply to HTML and other Web technologies also apply to scripting languages.
We propose to delete § 1194.22(m) of the existing 508 Standards, which applies when a Web page needs an applet, plug-in, or other application present on the client system to interpret page content and requires that such page provide a link to a plug-in or applet that complies with other referenced standards (in § 1194.21) relating to software applications. Because WCAG 2.0 applies directly to applets, plug-ins, and Web applications, § 1194.22(m) is redundant.
Lastly, the Board proposes to delete § 1194.24(e) of the existing 508 Standards, which requires that the non-permanent display or presentation of alternate text presentation or audio descriptions be user-selectable. Section 1194.24(e) essentially duplicates requirements for video and multimedia products already set forth in other provision in the same section (
The functional performance criteria are outcome-based provisions that address barriers to using ICT by individuals with certain disabilities, such as those related to vision, hearing, color blindness, speech, and manual dexterity. Both the existing 508 Standards and 255 Guidelines provide functional performance criteria. However, the existing 508 Standards do not expressly define the relationship between its functional performance criteria and technical requirements. To address this gap, the Board proposes to clarify when application of the functional performance criteria in the 508 Standards is required. (We are not proposing to change the application of the functional performance criteria in the 255 Guidelines.) The Board also proposes, in this NPRM, to update several functional performance criteria in Chapter 3 to refine some criteria and to make editorial changes necessitated by revisions elsewhere in the proposed rule.
Section 1194.31 of the existing 508 Standards, which sets forth six specific functional performance criteria, does not specify when federal agencies and other covered entities should or must apply these criteria. As described in the preamble to the final rule for the existing standards:
This section [1194.31] provides functional performance criteria for overall product evaluation and for technologies or components for which there is no specific requirement under other sections. These criteria are also intended to ensure that the individual accessible components work together to create an accessible product. (65 FR 80519 (Dec. 21, 2000))
Over the ensuing years, some have raised questions about application of the functional performance criteria in the existing 508 Standards. The General Services Administration's IT Accessibility and Workforce (GSA/ITAW)—which is the federal government's principal coordinator for Section 508 implementation—provides the following information in a “Q&A” format concerning application of the functional performance criteria:
How should an agency proceed in identifying “applicable” technical provisions in Subparts B [technical provisions], C [functional performance criteria], and D [information, documentation, and support] of the Access Board's standards to ensure acquired products provide comparable access?
Agencies should first look to the provisions in Subpart B [technical provisions] to determine if there are specific technical provisions that apply to the [ICT] need they are seeking to satisfy.
If there are applicable provisions in Subpart B [technical provisions] that fully address the product or service being procured, then the agency need not look to Subpart C [functional performance criteria]. Acquired products that meet the specific technical provisions set forth in Subpart B [technical provisions] will also meet the broader functional performance criteria in Subpart C [functional performance criteria].
If an agency's procurement needs are not fully addressed by Subpart B [technical provisions], then the agency must look to Subpart C [functional performance criteria] for applicable functional performance requirements.
The GSA/ITAW's Q&A document also suggests that the functional performance criteria in the existing 508 Standards be used to evaluate ICT products for equivalent facilitation. Id.
As recounted previously, the Board's approach to specifying requirements for application of the functional performance criteria has evolved over the course of this rulemaking. The Advisory Committee recommended that the Board clarify the relationship
Concerns expressed by commenters led the Board to propose redefining the relationship between the functional performance criteria and the technical provisions in the 508 Standards. In the 2011 ANPRM, the Board proposed that ICT would be required to conform to the functional performance criteria, even when the technical provisions were met. This proposal, too, received mixed reviews from commenters. While some commenters supported this approach, industry groups objected to it as unworkable. They viewed the functional performance criteria as overly subjective and not subject to objective testing. As one commenter from the IT industry noted: “[A] supplier cannot guarantee that the functional performance criteria have been met unless the supplier controls all the components of the end-to-end solution.”
In this NPRM, the Board heeds the concerns of industry groups and effectively returns to our original proposal whereby the functional performance criteria in the 508 Standards apply only in two specific circumstances—when there are “gaps” in the technical requirements and when evaluating equivalent facilitation. Specifically, agencies would be required to apply the functional criteria as follows. First, where the proposed requirements in Chapter 4 for hardware and Chapter 5 for software do not address one or more of the features of ICT, sections E204.1 and C202.1 would require the features that are not addressed in those chapters to conform to the functional performance criteria in Chapter 3. This is consistent with the GSA/ITAW's recommended approach under the existing 508 Standards. It is also consistent with §§ 1193.21 and 1193.41 of the existing 255 Guidelines. Second, section E101.2 proposes to require the functional performance criteria to be used when evaluating ICT for equivalent facilitation. This is consistent with the GSA/ITAW's recommended approach under the existing 508 Standards.
With respect to the 255 Guidelines, neither the Advisory Committee (in its TEITAC Report) nor the Board (in the 2010 and 2011 ANPRMs) previously proposed any changes to the manner in which telecommunications equipment manufacturers must apply the functional performance criteria. Likewise, the Board proposes no changes in this NPRM. See Section VI.D (Section-by-Section Analysis—Functional Performance Criteria and Technical Requirements—C201.3 and C202).
As noted above, the Board is also proposing in this NPRM to update several functional performance criteria in Chapter 3 (located in Appendix C—Technical Requirements)—which applies to both the 508 Standards and the 255 Guidelines—by refining some criteria and making editorial changes necessitated by revisions elsewhere in the proposed rule. We highlight below several of the principle revisions to the functional performance criteria proposed in this NPRM. In addition, Table 3, which follows at the end of this section, provides a detailed comparison of the functional performance criteria in the existing 508 Standards (§ 1194.31), 255 Guidelines (1193.41), and the proposed rule (section 302).
First, while the functional performance criteria in proposed 302 no longer reference assistive technology, this amounts to an editorial change only. The existing 508 Standards and 255 Guidelines allow certain functional performance criteria to be satisfied either directly or indirectly through support for assistive technology. (See,
Second, as discussed in Section IV.E.6, the Board proposes to revise the criteria for users with limited vision in section 302.2. The existing 508 Standards require at least one mode of operation and information retrieval that does not require visual acuity greater than 20/70 to be provided in audio and enlarged print output working together or independently. The existing 255 Guidelines are similar, except that they define users with limited vision as users possessing visual acuity that ranges between 20/70 and 20/200. The proposed rule would require at least one mode of operation that magnifies, one mode that reduces the field of vision required, and one mode that allows user control of contrast where a visual mode of operation is provided. The proposed rule does not refer to visual acuity since comments in response to proposals in the 2010 and 2011 ANPRMs recommended that the criteria should address features that would improve accessibility for users with limited vision instead of using visual acuity as a measure of limited vision.
Third, there are two functional performance provisions in the existing 255 Guidelines that are not found in the functional performance criteria for existing 508 Standards: operations without time-dependent controls (255 Guidelines § 1193.41(g)) and operations with limited cognitive skills (255 Guidelines § 1193.41(i)). There is a technical provision in the existing 508 Standards that corresponds to 255 Guidelines § 1193.41(g) requiring the operation of ICT without time-dependent controls (508 Standards § 1194.22(p)). This is addressed in the proposed rule in WCAG 2.0 Success Criteria 2.2.1 Timing Adjustable and 2.2.2 Pause, Stop and Hide. We propose to incorporate by reference WCAG 2.0 Success Criteria in proposed E207.2 and C205.2.
Fourth, the Board proposes not to include a functional performance criteria relating to limited cognitive skills. The existing 255 Guidelines provide a criterion for at least one mode of operation that minimizes cognitive skills required of the user (§ 1193.41(i)), while the existing 508 Standards have no parallel provision. Such a criterion has not been included in the proposed rule on the advice of the Advisory Committee, which recommended deletion of this criteria pending future research. (See Section VI.C (Section-by-Section Analysis—Application and Scoping).
Table 3 below provides a provision-by-provision summary of how the proposed rule would revise the existing functional performance criteria by comparing the criteria in proposed 302 (in the left-hand column of the table) to its counterparts in existing 508 Standards § 1194.31 (in the middle column of the table) and existing 255 Guidelines § 1193.41 (in the right-hand column of the table).
In this NPRM, the Board proposes to require that ICT support RTT functionality whenever such ICT also provides real-time, two-way voice communication. This proposal represents a significant shift in approach for both the 508 Standards and the 255 Guidelines to better align with current technology. The existing 508 Standards and 255 Guidelines were published over a decade ago. At the time, TTYs were the most commonly available text-based system for communicating within a voice communication system. Since then, technology has greatly advanced. There are now, in addition to TTYs, multiple text-based means of communication available in the marketplace. This proposed revision will update the standards to reflect changes in telecommunications technology.
Section 410.6 of the proposed rule would require ICT with real-time voice communication features to also support communication through real-time text. Such ICT would be required to support RTT either within its own closed system or outside a network. For example, a closed communication system, such as within a federal agency, would be required to interoperate with either the publicly switched telephone network (PSTN) or Voice over Internet Protocol (VoIP) products or systems to support the transmission of real-time text. When ICT interoperates with VoIP products or systems using Session Initiation Protocol (SIP), the Board proposes to require the transmission of real-time text to conform to the Internet Engineering Task Force's RFC 4103 standard for RTP Payload for Text Conversation. Where ICT interoperates with the PSTN, real-time text would be required to conform to the Telecommunications Industry Association's TIA 825–A standard for TTY signals at the PSTN interface (also known as Baudot). RFC 4103 and TIA 825–A are final standards proposed for incorporation by reference in 508 Chapter 1 and 255 Chapter 1 (see sections E102 and C102, respectively).
Commenters to the 2011 ANPRM noted that other standards aside from RFC 4103—such as XMPP and XEP–0301—were currently in use and could be referenced as specifications for ICT interoperability with VoIP using SIP. XEP–0301 is one of several pending standards developed for use in the Extensible Messaging and Presence Protocol (XMPP). XMPP is a set of open technologies for instant messaging, multi-party chat, voice and video calls, collaboration, and generalized routing of XML data. XMPP was originally developed in the Jabber open-source community to provide an open, secure,
XEP–0301, In-Band Real-time Text, is a specification for real-time text transmitted in-band over an XMPP network. It is used for text messaging. As of the date of this publication, according to the XMPP Standards Foundation, the XEP–0301 standard is under review and not yet final. XEP–0301 has many advantages: It allows transmission of real-time text with minimal delays; it supports message editing in real-time; and, it has reliable real-time text delivery. It can be used for multiple users and allows alternate optional presentations of real-time text, including split screen or other layouts. The standard also allows use within gateways to interoperate with other real-time text protocols, including RFC 4103. It allows immediate conversational text through mobile phone text messaging and mainstream instant messaging. For more information on the benefits of XEP–0301, see
Yet despite its potential benefits, the Board cannot incorporate XEP–0301 until it becomes a final standard. However, should the XEP–0301 standard be finalized before publication of the final rule, the Board plans to incorporate it by reference as an alternative technology to support transmission of RTT when interoperating with VoIP products or systems using XMPP. RFC 4103 would, in any event, be retained for ICT interoperating with VoIP products or systems using SIP technology.
The European standard, EN 301 549 would allow the use of multiple standards for RTT. As discussed in 4.6, Harmonization with European Activities above, EN 301 549 lists several standards for RTT, as well as an unspecified “common specification” for RTT. The common specification must indicate a method for indicating loss of corruption of characters. The Board seeks comment on whether other standards should be incorporated by reference. The other standards are:
• ITU–T v.18, Recommendation ITU–T V.18 (2000) “Operational and interworking requirements for DCEs operating in the text telephone mode” (see EN 301 549 6.3.3(a)). This Recommendation specifies features to be incorporated in data carrier equipment intended for use in, or communicating with, text telephones primarily used by people who are deaf or hard of hearing.
• IP Multimedia Sub-System (IMS) protocols specified in TS 126 114, TS 122 173, and TS 134 229 (see EN 301 549 6.3.3(c)). ETSI TS 126 114, Universal Mobile Telecommunications System (which was referenced in the EAAC Report and Recommendation noted previously in Section IV.F.2) supports a “total communication” approach by establishing a minimum set of codecs and transport protocols that must be supported by all elements in the IMS system for video, real-time text, audio, and high definition (HD) audio. As noted previously, the Board decided not to require standards for video, audio, or HD audio in this proposed rule beyond the technical requirements set forth in proposed 410 (ICT with Two-Way Voice Communication). Both the ETSI TS 122 173 and ETSI TS 134 229 standards are still under development, and, therefore, cannot be referenced at this time.
Based on the work of the Advisory Committee and feedback from commenters, the Board proposes in this NPRM to directly cover some, but not all, aspects of assistive technology (AT). All stakeholders agreed that improving ICT–AT interoperability was critically important, but offered differing perspectives on how to make this happen. There was general consensus on some proposals (
With respect to the ICT side of the ICT–AT interoperability equation, the Board proposes a set of updated technical requirements for platforms and applications that will result in improved interoperation. This proposal received strong support from industry stakeholders who lauded it as an important improvement from the existing requirements because it was comprehensive, testable, and harmonized with international consensus standards for software accessibility. Proposed 502 contains three main subsections. Proposed 502.2 Documented Accessibility Features largely tracks § 1194.21(b) of the existing 508 Standards, and was strongly recommended by the Advisory Committee. Proposed 502.3 (Platform) Accessibility Services incorporates much of existing 508 Standards §§ 1194.21(b), (c), (d), and (f), but proposed 502.3.1 through 502.3.9 provide significantly greater detail. Lastly, in 502.4 Platform Accessibility Features, the Board proposes to require that platforms provide specific accessibility features common to most platforms. This provision is being proposed in response to concerns raised by consumers and the assistive technology industry that the Board was not being sufficiently proactive in spelling out the accessibility features
Second, to address the role of the AT in ICT–AT interoperability, the Board proposes modest requirements for assistive technology. Proposed 503.3 Alternate User Interfaces would require assistive technology to use the basic set of platform accessibility information provided by operating systems and software (
Third, to provide clarification sought by a number of commenters, the Board proposes to expressly exempt assistive technology from compliance with technical requirements generally applicable to hardware (Chapter 4) and software (Chapter 5). Commenters had expressed concern that, if assistive technology was treated as ICT for all purposes, some assistive technology would not be able to fulfill its intended function. For example, an individual with low muscle tone may find that a specialized, flat membrane keyboard best serves his or her needs; however, such a keyboard would not satisfy the requirements of Chapter 4 because, among other things, it does not have tactilely discernable separation between keys (proposed 407.3). Accordingly, proposed 401.1 provides an exception for hardware that is assistive technology, and a similar exception is proposed for assistive technology software (501.1—Exception 2).
As noted above, the Board is proposing to revise and update both the 508 Standards and 255 Guidelines. The existing standards and guidelines are set forth in two separate regulatory parts—36 CFR parts 1194 and 1193—and apply to different types of covered entities (
We are proposing to combine the 508 Standards and 255 Guidelines into a single comprehensive set of requirements with three parts that will appear as Appendices A, B, and C to 36 CFR part 1194. Appendix A covers the proposed application and scoping requirements for ICT subject to Section 508 (“508 Chapter 1” and “508 Chapter 2”). Appendix B addresses the proposed application and scoping requirements for ICT covered by Section 255 (“255 Chapter 1” and “255 Chapter 2”). Appendix C includes the proposed functional performance criteria (Chapter 3) and the proposed technical requirements (Chapters 4 through 6) that are referenced by the Section 508 and Section 255 scoping provisions in Appendices A and B.
Application and scoping includes instructions on when and how the provisions in proposed chapters 3 through 6 would apply under Sections 508 and 255. With this proposed format, it is critical for covered entities to review scoping and application in either Appendix A (508 Chapters 1 and 2) or Appendix B (255 Chapters 1 and 2) before consulting the functional performance and technical criteria in Appendix C (Chapters 3, 4, 5 and 6). For example, under Section 508, federal agencies that wish to procure, use, maintain or develop ICT, must first understand what ICT is covered by the proposed technical requirements and functional performance criteria. This information exists only in Appendix A. Agencies would not consult Appendix B because it applies only to telecommunications equipment manufacturers subject to Section 255. Similarly, telecommunications equipment manufacturers would consult Appendix B to ascertain what ICT is subject to the proposed technical requirements and functional performance criteria under Section 255; they would not be required to comply with Appendix A. Nonetheless, it bears noting that, while a Section 255-covered manufacturer is not obligated to comply with the 508 Standards, such manufacturers may still elect at their discretion to consult the standards if they wish. For example, if a telecommunications equipment manufacturer wished to make certain products (or features of products) more marketable to federal agencies, this manufacturer might choose to consult the 508 Standards to be familiar with standards governing federal agencies' procurement obligations.
Naming conventions used in the Appendices for requirements also help indicate whether a particular provision applies under Section 508, Section 255, or both. In Appendix A, all proposed provisions are preceded by the letter “E” to indicate the provision would be applicable under Section 508 only. In Appendix B, all proposed provisions are preceded by the letter “C” to indicate the provision would be applicable under Section 255 only.
This proposed formatting and organizational structure is based on recommendations made by the Advisory Committee and public comments submitted in response to the 2010 and 2011 ANPRMs. Section VI.B (508 Standards: Application and Scoping) and Section VI.C (255 Guidelines:
This chapter proposes general requirements reflecting the purpose of the 508 Standards (E101.1). It also proposes criteria for equivalent facilitation (E101.2), lists referenced standards and where they may be obtained (E102), and provides definitions of terms used in the standards (E103). 508 Chapter 1 proposes, in large part, to simplify and reorganize similar provisions contained in existing 508 Standards §§ 1194.1 Purpose, 1194.4 Definitions, and 1194.5 Equivalent Facilitation.
This is an introductory section.
This section states that the purpose of the 508 Standards is to provide scoping and technical requirements for ICT that is accessible to and usable by individuals with disabilities. Compliance with these requirements is mandatory for federal agencies subject to Section 508.
This section is based on existing 508 Standards § 1194.5. It would permit the use of an alternative design or technology in lieu of conformance to the proposed technical requirements in Chapters 4 and 5, but only if the alternative design or technology provides substantially equivalent or greater accessibility and usability by persons with disabilities than would be provided by conforming to the proposed technical provisions. This section also would require the proposed functional performance criteria in Chapter 3 to be used to determine whether the alternative design or technology provides individuals with disabilities with substantially equivalent or greater accessibility and usability. The application of the functional performance criteria for this purpose would fill in a gap in the existing 508 Standards, which do not explain how the functional performance criteria are to be used in relation to the technical provisions. We explain our approach in greater detail above in Section V.C (Major Issues—Functional Performance Criteria).
This section would provide that dimensions are subject to conventional industry tolerances except where dimensions are stated as a range. This proposed provision would be new to the 508 Standards and would clarify how dimensions are to be interpreted when specified in the text or a referenced standard.
This section would note measurements are stated in U.S. customary and metric units and that the values stated in each system (U.S. customary and metric units) may not be exact equivalents. This section would also provide that each system be used independently of the other. This proposed section is new to the 508 Standards and would clarify dimensions stated in the text of the proposed rule.
This is an introductory section.
This section lists the technical standards developed by voluntary consensus standard-setting bodies that the Board proposes to incorporate by reference in the proposed 508 Standards. It would require that where there is a difference between a provision of the proposed 508 Standards and the referenced standards, the 508 Standards would apply.
Incorporating these standards complies with the federal mandate—as set forth in the National Technology Transfer and Advancement Act of 1995 and OMB Circular A119—that agencies use voluntary consensus standards in their regulatory activities unless doing so would be legally impermissible or impractical. The standards proposed for incorporation would improve clarity because they are built on consensus standards developed by stakeholders. Most of these standards are widely used and, therefore, should be familiar to many regulated entities.
Incorporation by reference of these standards would be a distinct change and improvement from the existing 508 Standards, which contain no referenced standards. The Advisory Committee strongly recommended the adoption of specific accessibility consensus standards in order to promote harmonization. The adoption of consensus standards results in a more unified regulatory environment in which all participants benefit from clarity and simplicity. As noted in the TEITAC Report:
Industry supports harmonization in principle because it allows the ICT market to address accessibility through a global process—one product developed to be sold world-wide—rather than by trying to meet unique, potentially conflicting standards required by different countries. Harmonization should result in more accessible products, delivered through a more economically efficient market. Consumers thus benefit directly from harmonization; they also benefit indirectly because harmonization allows advocates to focus their efforts on fewer standards development activities. It is this economy of focused effort that may offer the greatest net benefit to people with disabilities. (TEITAC Report, Part 4, section 4.3).
Once incorporated by reference, the referenced standards become part of the 508 Standards. We are unaware of any duplication or overlap among the parts of the proposed standards, including the standards incorporated by reference. However, in order to address any potential conflicts, proposed E102.1 (as well as C102.1) provide that, when a conflict occurs between the 508 Standards (or 255 Guidelines) and a standard incorporated by reference, the 508 Standards (or 255 Guidelines) apply.
While a discussion of the estimated economic impact of the proposed rule—including the proposed incorporation by reference of the consensus technical standards listed in E102.1 and C102.1—follows below in Section VIII, two points bear noting here. First, the cost of implementing this proposed rule can be mitigated, in part, through use of an updated product accessibility template that includes WCAG 2.0 and the other referenced standards. The product accessibility template, available through the GSA Section508.gov site is intended to help agencies understand which provisions apply to particular products. We expect GSA will update this tool so that it will be available for use by agencies on or before the effective date of revised 508 Standards. Second, the W3C WCAG Web site provides readily available technical assistance—free of charge—that is linked to each technical requirement in WCAG 2.0. A great deal of third-party information is also available. Collectively, these resources should also greatly aid federal agencies and other regulated entities become conversant with the provisions in this
The Office of the Federal Register recently promulgated a final rule requiring federal agencies to provide information to the public in regulatory preambles relating to the availability of materials to be incorporated by reference. In Section VII.G (Regulatory Process Matters—Availability of Materials Incorporated by Reference) below, the Board provides information on the availability of ten consensus standards proposed for incorporation by reference in the 508 Standards and 255 Guidelines.
The proposed 508 Standards would incorporate by reference the following standards:
ANSI/HFES 200.2, Human Factors Engineering of Software User Interfaces—Part 2: Accessibility (2008), would be incorporated by reference at 502.4. This standard provides ergonomic guidance and specifications for the design of accessible software for use at work, in the home, in educational settings, and in public places. It covers issues associated with designing accessible software for people with a wide range of physical, sensory and cognitive abilities, including those who are temporarily disabled and the elderly.
This proposed standard would be new to both the 508 Standards and 255 Guidelines. Referencing this standard will ensure that ICT operating systems provide accessibility features (
ANSI/IEEE C63.19–2011, American National Standard for Methods of Measurement of Compatibility between Wireless Communications Devices and Hearing Aids, would be incorporated by reference at 410.4.1. This standard is consistent with current telecommunications industry practices.
Products conforming to this standard minimize interference to hearing aids by wireless telephones. When telephone interference is not minimized, it can create noise in hearing aids that masks the sound of conversation. An added value of this standard is that it provides a uniform method of measurement for compatibility between hearing aids and wireless communications devices.
A/53 Digital Television Standard, Part 5: AC–3 Audio System Characteristics (2010) would be incorporated by reference at 412.1.1. This standard provides technical requirements for digital television tuners when they process audio description. This standard is consistent with current telecommunications industry practice.
RFC 4103, RTP Payload for Text Conversation (2005), would be incorporated by reference at 410.6.3.2. This standard describes how to carry real-time text conversation session contents in RTP packets. Real-time text conversation is used alone, or in connection with other conversational modalities, to form multimedia conversation services. Examples of other conversational modalities are video and voice. When using RTT, text is received at the same time it is generated. For people who communicate without voice, RTT offers a way to interact that more closely resembles a live two-way call. This proposed standard would be new to the 508 Standards (as well as the 255 Guidelines), and represents a significant shift to better align with current technology. IP-based RTT is the only modern technology that offers the same functionality that TTYs have historically provided. Contemporary TTYs do not work with modern IP desk phones because the acoustic signal (Baudot) is garbled due to incompatible compression algorithms. When communication in real time is important, as in emergency situations, RTT allows users to communicate in a manner similar to a live two-way voice call. Parties exchange information in real time and can interrupt each other during the conversation. This technology most closely approximates the useful features of TTYs. Real-time text is also discussed in detail in Section V.D (Major Issues—Real-Time Text) above.
ISO 14289–1 (2012), Document management applications — Electronic document file format enhancement for accessibility — Part 1: Use of ISO 32000–1 (PDF/UA–1), would be incorporated by reference at E205.1 and 602.3.1. This is an international standard for accessible portable document format (PDF) files. PDF/UA–1 provides a technical, interoperable standard for the authoring, remediation, and validation of PDF content to ensure accessibility for people with disabilities who use assistive technology such as screen readers, screen magnifiers, joysticks and other assistive technologies to navigate and read content. This proposed standard is new to both the 508 Standards and the 255 Guidelines. It is offered as an option to WCAG 2.0 for accessible PDFs.
ITU–T Recommendation G.722, General Aspects of Digital Transmission Systems, Terminal Components, 7 kHz Audio-Coding within 64 kbits/s (Sept. 2012), would be incorporated by reference at 410.5. This standard is an ITU–T standard coder-decoder program that provides 7 kHz wideband audio at data rates from 48, 56, and 64 kbits/s. This standard provides a significant improvement in speech quality over earlier standards. It was previously proposed in the 2011 ANPRM and received no objections.
ITU–T Recommendation E.161: Arrangement of digits, letters and symbols on telephones and other devices that can be used for gaining access to a telephone network (Feb. 2001), would be incorporated by reference at section 407.3.2. This standard is an ITU–T standard that defines the assignment of the basic 26 Latin letters (A to Z) to the 12-key telephone keypad. It provides guidance for arranging alphabetic keys in a predictable, consistent manner. This proposed standard is new to the 508 Standards (as well as the 255 Guidelines), though it reflects current industry practice.
TIA 825–A (2003), A Frequency Shift Keyed Modem for Use on the Public Switched Telephone Network, would be incorporated by reference at 410.6.3.1. This is the standard for TTY signals on the public switched telephone network interface (PSTN). This standard is consistent with current industry practice in the telecommunications industry.
TIA 1083 (2007), Telephone Terminal Equipment Handset Magnetic Measurement Procedures and Performance Requirements, would be incorporated by reference at 410.4.2. This standard defines measurement procedures and performance requirements for the handset generated audio band magnetic noise of wire line telephones, including digital cordless telephones. This standard is consistent with current telecommunications industry practice.
Web Content Accessibility Guidelines (WCAG) 2.0, W3C Recommendation,
This is an introductory section.
This section proposes that terms defined in referenced standards, which are not otherwise defined in section E103.4, would have the meaning given them in their respective referenced standards.
This section proposes that the meaning of terms not defined in section E103.4 or in referenced standards shall be given their ordinarily accepted meanings in the sense that the particular context implies.
This section proposes that words, terms, and phrases used in the singular shall include the plural and those used in the plural shall include the singular.
This section includes definitions for terms used in, or integral to, the proposed 508 Standards. Some of the definitions have been carried over in whole or in part from the existing 508 Standards, while others represent terms that are new to these standards. We also propose to delete several definitions from the existing 508 Standards that are either obsolete or no longer needed. A summary of the proposed definitions in E103.4 follows below. Terms that are not discussed remain unchanged from the existing 508 Standards.
For four terms in the existing 508 Standards, the Board proposes to retain the term, but make slight changes to their respective definitions to improve clarity or to account for technological advances. The definition of the term “agency” would be revised to expressly include agencies and departments of the United States as defined in 44 U.S.C. 3502 and the U.S. Postal Service. The term “assistive technology” would include minor editorial changes from the text in the existing 508 Standards. The term “operable controls” would be revised to “operable part,” which would be defined as “a component of ICT used to activate, deactivate, or adjust the ICT.” The proposed definition would not include the requirement for physical contact found in the definition in the existing 508 Standards and would not include examples of controls. The term “TTY” would be updated to reflect modern technologies currently in use, and would specifically mention such examples as devices for real-time text communications, voice and text intermixed communications (
Two other terms are new to the proposed 508 Standards, but have close analogs in the existing standards. First, the term “closed functionality” would replace “self-contained closed products.” The proposed new definition would provide a more accurate description of the characteristics of the ICT that is addressed in the proposed provision in section 402 “Closed Functionality.” In addition, this term would address both those features of ICT that are closed by design and other features that are closed because of policies that may restrict specific functions of ICT, where the ICT might normally be capable of being made accessible to an individual with a disability. For example, a policy not allowing the attachment of data storage devices to ICT would, in the case of an individual with low vision, essentially block that person from being able to attach a device containing magnification software. The new definition would include examples of ICT with closed functionality, such as self-service machines and fax machines.
Second, the term “information and communication technology” (ICT) would replace “electronic and information technology” (E&IT), and revise the definition significantly. The proposed definition for ICT would be broader than the existing definition of E&IT in that it encompasses both electronic and information technology covered by Section 508, and telecommunications products, interconnected Voice over Internet Protocol (VoIP) products, and Customer Premises Equipment (CPE) covered by Section 255. Using a common term that is applicable to both the 508 Standards and 255 Guidelines supports one of the central goals of this rulemaking—namely, development of a single set of comprehensive requirements for two substantive areas that are inseparable from regulatory and policy perspectives. Additionally, to address confusion regarding application of the existing 508 Standards to electronic documents, the proposed ICT definition expressly clarifies that electronic content—such as Web pages and PDFs—falls within the definition of ICT. Lastly, this newly defined term provides an updated set of illustrative examples that better reflect today's technologies.
We developed the definition for ICT by using the concepts from the existing definitions of “electronic and information technology,” “information technology,” and “telecommunications equipment,” albeit with significantly revised language. Defining a common term that covers both Section 508-covered E&IT and Section 255-covered telecommunications products and services is consistent with the overall approach in the proposed rule of presenting a unitary set of regulatory requirements under these two statutes. The proposed definition of ICT is also consistent with the terminology used by the Advisory Committee in its TEITAC report. That report noted:
Section 255 covers telecommunications products and services. Section 508 covers electronic and information technologies (E&IT). For convenience and clarity, wherever these two categories are taken together, we are using the common term “information and communication technologies, or ICT. (TEITAC Report, Part 1 & fn. 1.)
The TEITAC Report further noted that the 255 Guidelines developed by the Access Board “cover customer premises equipment and telecommunications equipment, but do not address services.” (See TEITAC Report, Part 1 & fn. 2.)
We proposed in the 2010 and 2011 ANPRMs that the term “information and communication technology (ICT)” be used to refer to electronic and information technology covered by Section 508 as well as to telecommunications products, interconnected Voice over Internet Protocol (VoIP) products, and Customer Premises Equipment (CPE) covered by Section 255. Commenters to the 2010 and 2011 ANPRMs supported this approach. In the proposed rule, the Board retains this approach.
The remaining 18 terms defined in proposed E103.4 have no counterparts in the existing 508 Standards. We propose adding these terms to the 508 Standards to provide definitions for key terms used in the proposed standards, reflect technological advances since promulgation of the existing 508 Standards, and aid stakeholder understanding. These new terms are described below.
The term “508 Standards” is defined in order to provide consistent cross-reference within the standards to all
The term “audio description” is used in existing 508 Standards § 1194.24(d) but not defined. We would add a definition derived from WCAG 2.0, which would in part explain that “audio description” is “narration added to the soundtrack to describe important visual details that cannot be understood from the main soundtrack alone.”
The term “authoring tool” would be defined to mean “any software, or collection of software components, that can be used by authors, alone or collaboratively, to create or modify content for use by others, including other authors,” and would be included to explain the proposed provision in section 504, “Authoring Tools.”
The term “content” would be defined as “Electronic information and data, as well as the encoding that defines its structure, presentation, and interactions.” The definition is based on WCAG 2.0, and is proposed to promote harmonization and greater clarity in the proposed Standards and Guidelines.
The term “keyboard” would be defined as “a set of systematically arranged alphanumeric keys or a control that generates alphanumeric input by which a machine or device is operated.” This proposed definition would also clarify that a “keyboard” includes “tactilely discernible keys used in conjunction with the alphanumeric keys if their function maps to keys on the keyboard interfaces.” This proposed new definition would clarify the use of the term “keyboard” in Chapter 4 (Hardware).
The term “Voice over Internet Protocol (VoIP)” is new and is defined consistent with current FCC regulations.
The remaining twelve proposed new terms would be added to aid stakeholder understanding of particular requirements or criteria in the 508 Standards. Definitions for the terms “label,” “name,” “programmatically determinable,” and “text” are taken from WCAG 2.0. Additionally, the terms “application,” “hardware,” and “software” are based on definitions provided in the FCC's regulations implementing Section 255 of the Communications Act. See 47 CFR part 14. Definitions for the terms “menu,” “platform accessibility services,” “platform software,” “real-time text,” and “terminal” were drawn from the work of the Advisory Committee and other sources. “Menu,” “platform accessibility services,” and “real-time text” were proposed in the 2010 and 2011 ANPRMs. We received no public comments in response to these definitions in the two ANPRMs.
Lastly, proposed E103.4 would not include several terms that are defined in the existing 508 Standards. There terms are not included in this proposed rule because either the proposed technical requirement associated with the term sufficiently conveys its meaning (
This chapter proposes scoping for ICT that is procured, developed, maintained or used by federal agencies—that is, the types of ICT that would be required to conform to the proposed functional performance criteria and technical requirements in the 508 Standards, as well as the conditions under which these provisions would apply. Chapter 2 would contain provisions currently addressed in existing 508 Standards §§ 1194.2 “Application” and 1194.3 “General Exceptions,” thereby locating all scoping provisions in a single chapter.
This is an introductory section.
This section proposes that ICT procured, developed, maintained, or used by agencies must conform to the proposed requirements set forth (or referenced) in 508 Chapter 2. This provision is consistent with existing 508 Standards § 1194.2.
This section contains proposed exceptions to the general scoping provisions in proposed 201. The structure of the proposed standards reinforces the principle that, under the general scoping provision, all ICT procured, developed, maintained or used by agencies would be required to conform to the proposed requirements, unless otherwise exempted. General exceptions apply broadly and, where applicable, exempt ICT from conformance with the proposed 508 Standards. Most of the proposed general exemptions are the same as those in existing 508 Standards § 1194.3, with only minor editorial changes. A brief discussion of the proposed changes to the General Exceptions follows below.
The Board is proposing to exclude from this rule two exceptions that are contained in the existing 508 Standards: §§ 1194.3(c) and 1194.3(d). Section 1194.3(c) provides that assistive technology need not be provided at the workstations of all federal employees. However, there is no general rule in either the existing or proposed 508 Standards that requires agencies to provide assistive technology at all workstations. Instead, these standards require compatibility with assistive technology when ICT is not directly accessible. The exception in § 1194.3(c) is thus unnecessary and potentially confusing. Consequently, the Board is not retaining it in the proposed rule.
We are also proposing to exclude the exception in § 1194.3(d) of the existing 508 Standards, which provides that when agencies provide the public access to ICT, they are not required to make agency-owned ICT available to individuals with disabilities who are members of the public at non-public locations. We are proposing to remove this exception because there is nothing in the proposed 508 Standards that would require an agency to provide accessible ICT at a specific location, or that would require public access to locations not open to the public. Consequently, this exception is not needed, and its removal from the 508 Standards would have no practical impact. The Board intends to address the continuing obligation of agencies to provide accommodations under Sections 501 and 504 of the Rehabilitation Act in forthcoming guidance material to be posted on our Web site following publication of the final rule.
This section proposes that ICT is exempt from these requirements to the extent specified by section E202.
This section proposes that ICT operated by agencies as part of a national security system, as defined by 40 U.S.C. 11103(a), is exempt from the requirements of this document. This is unchanged from existing 508 Standards § 1194.3(a).
This section proposes that ICT acquired by a contractor that is incidental to a contract would not be required to conform to this document. This proposed exception is unchanged from existing 508 Standards § 1194.3(b), and the Board's approach is discussed in greater detail above in Section IV.E.8 (Rulemaking History—2010 and 2011
This section proposes to revise § 1194.3(f) of the existing 508 Standards to clarify that, where status indicators and operable parts for ICT functions are located in spaces that are only frequented by service personnel for maintenance, such items need not conform to the requirements of 508 Chapter 2. Functions of ICT located in maintenance spaces that can be controlled remotely, however, would still be required to comply with applicable standards. For example, if a server is located on a tall rack in a maintenance closet accessed only by service personnel, the controls on the server need not be accessible. However, any network or other server functions that could be accessed remotely would be required to comply with the proposed 508 Standards. We discuss our approach with respect to this exception in greater detail above in Section IV.E.8 (Rulemaking History—Major Issues Addressed in the 2010 and 2011 ANPRMs—Revisions to Exceptions under 508 Standards).
This section proposes to retain the provisions in existing 508 Standards §§ 1194.3(e) and 1194.2(a)(1), but would combine them in a single provision. This section would require that agencies comply with the requirements of the 508 Standards up to the point where conformance would impose an undue burden on the agency or would result in a fundamental alteration in the nature of the ICT. Proposed subsections E202.5.1 and E202.5.2 respectively set forth criteria for undue burden determinations and establish requirements for written documentation of undue burden and fundamental alteration findings.
This section proposes to incorporate language from the definition of “undue burden” in the existing 508 Standards § 1194.4 into a separate scoping provision. It would require that, when determining whether conformance to the proposed 508 Standards would impose an undue burden on the agency, the agency must consider the extent to which conformance would impose significant difficulty or expense taking into consideration the agency resources available to the program or component for which the ICT is to be procured, developed, maintained, or used. The proposed organizational restructuring of the undue burden provision represents an editorial revision only that is not intended to have substantive impact.
This section proposes to require responsible agency officials to document in writing the basis for determining that compliance with the proposed 508 Standards would either impose an undue burden or result in a fundamental alteration in the nature of the ICT. This proposed documentation requirement is derived from existing 508 Standards § 1194.2(a)(2) applicable to a determination of undue burden in the procurement context. Proposed 202.5.2 would, however, broaden this existing requirement by requiring written determinations in two new settings: (a) When an agency determines that conformance would result in a fundamental alteration in the nature of the ICT; and (b) when an agency determines that conforming to one or more provisions applicable to the development, maintenance, or use of ICT would impose an undue burden. This change is intended to ensure accountability and transparency in agencies' Section 508 implementation efforts by treating documentation obligations equally as between procurement and non-procurement contexts.
Under Section 508, it is the responsibility of each agency to establish policies and procedures describing how they will comply with the standards, including those for making undue burden and fundamental alteration determinations. The Department of Justice's 2012 Biennial Report on Section 508 notes that “[n]early forty percent of agency components reported establishing a formal, written policy to document Section 508 exceptions claimed on [ICT] procurements. Many of these agency components reported that their [ICT] procurements met the Section 508 requirements and that reliance on an exception was unnecessary.”
The Access Board anticipates that the burdens associated with broadening the scope of the documentation requirement will be minimal. First, proposed 202.5.3 deliberately does not prescribe criteria for needed documentation to ensure a deliberative and documented decisional process without being overly prescriptive. In this way, each agency is free to develop documentation policies and practices that best suit its respective needs and resources. Such an approach is consistent with, and respectful of, Section 508's grant of independent responsibility for Section 508 enforcement to each agency.
Second, the Board expects that invocation of the undue burden and fundamental alteration exceptions will be infrequent, which would also mean an infrequent need for written determinations. For example, in the procurement context, the DOJ 2012 Biennial Report notes that many responding agency components reported having never relied on any exception. Agency components that did make occasional use of available exceptions, assertions of undue burden or fundamental alteration were, in turn, relatively uncommon. Use of these exceptions in procurements was limited to “large” and “very large” agencies; small and mid-size agencies (
This section proposes that, when an agency determines that an undue burden or fundamental alteration exists, it must provide individuals with disabilities access to and use of information and data by an alternative means that meets identified needs. The proposed provision is taken from existing 508 Standards § 1194.2(a)(1) addressing undue burden, but adds the reference to fundamental alteration to clarify that agencies must still provide people with disabilities access to and use of information and data when either of these exceptions applies.
This section proposes that, where ICT conforming to one or more provisions of the 508 Standards is not commercially available, the agency must procure the product that best meets these standards consistent with its business needs. This section would editorially revise existing 508 Standards § 1194.2(b).
This section proposes to require that agencies document in writing the basis for determining that ICT fully conforming to applicable 508 Standards is not commercially available. Documenting the exception for commercial non-availability is not a requirement in the existing 508 Standards, though such documentation is mandated under the current federal acquisition regulations. See 48 CFR 39.203. A number of commenters to the 2010 ANPRM requested this change and supported its inclusion in the 2011 ANPRM. A documentation requirement was proposed in the 2011 ANPRM, and the Board did not receive any negative comments.
This section proposes to require agencies to provide individuals with disabilities the information and data that would have been provided by fully conforming ICT when such ICT is commercially unavailable. Proposed E202.6.2 is similar in intent to proposed E202.5.3 (Undue Burden—Alternative Means), and would reinforce the statutory requirement for agencies to ensure that individuals with disabilities have comparable access to information and data.
This is an introductory section.
This section proposes to require agencies to ensure that all functionality of ICT is accessible to and usable by individuals with disabilities, either directly or by supporting the use of assistive technology. While this provision would be new to the 508 Standards, it is consistent with current agency practice. The Board interprets the statutory requirement to provide comparable access to information and data to be consistent with granting access to all functionality of ICT. This proposed requirement was strongly supported by the Advisory Committee, as well as commenters to the 2010 and 2011 ANPRMs.
This section proposes that, when agencies procure, develop, maintain or use ICT, they must identify the business needs of individuals with disabilities affecting vision, hearing, color perception, speech, dexterity, strength, or reach, in order to determine how such users will perform the functions supported by such ICT. The provision would also require agencies to assess how the ICT will be installed, configured, and maintained to support users with disabilities. The list of disabilities in this provision parallels the functional performance criteria proposed in Chapter 3.
The Board intends, through this provision, to reinforce the fundamental principle that agencies have an affirmative, continuing obligation under Section 508 to maintain the accessibility of ICT. While this is not a new requirement under Section 508, it is not expressly addressed in the existing 508 Standards. The Board proposes to include this section in response to many concerns raised over the years about the requirements under Section 508 to maintain ICT accessibility over time. Proposed 203.2 would make clear, for example, that agencies have an affirmative duty to ensure that when an accessible operating system is updated, the current or an updated version of screen reading software is compatible with the updated operating system.
This is an introductory section.
This section proposes that, when the technical provisions of Chapter 4 and 5 do not address one or more features of ICT, any unaddressed features must conform to the Functional Performance Criteria specified in Chapter 3. This proposed section is consistent with current agency practice. The Functional Performance Criteria, and the manner in which they are to be used in evaluating equivalent facilitation under proposed E101.2, is discussed in Section IV.E.3 (Rulemaking History—2010 and 2011 ANPRMs: Significant Issues—Relationship between Functional Performance Criteria and Technical Provisions), and Section V.C (Major Issues—Functional Performance Criteria).
This is an introductory section.
This section proposes that public-facing content, along with eight specific categories of non-public facing content, must conform to proposed E205. In turn, proposed E205 requires conformance to the Level A and Level AA Success Criteria and Conformance Requirements specified for Web pages in WCAG 2.0 or ISO 14289–1 (PDF/UA–1), both of which are incorporated by reference in 508 Chapter 1 and 255 Chapter 1. An exception is provided for non-public facing records maintained by the National Archives and Records Administration (NARA) under federal recordkeeping statutes. These proposed requirements and related exception are also discussed in Section IV.E.1 (Rulemaking History—2010 and 2011 ANPRMs: Significant Issues—Evolving Approaches to Covered Electronic Content), and Section V.A (Major Issues—Electronic Content).
Some file formats, it should be noted, do not directly support accessibility. For example, the JPEG compression standard for digital images does not facilitate embedded text description (commonly referred to as “alt tags”), and the MPEG–4 compression standard for audio and video digital data does not support closed captioning. Conformance may nonetheless be achieved through a variety of techniques, including providing requisite accessibility through the manner in which the inaccessible file is delivered or publicly posted. For example, JPEG photos posted to a Web site can be associated with descriptive identification using HTML. Photos attached to an email could have the text alternative provided in the body of the email. Similarly, there are commonly available methods for displaying caption text so that it is synchronized with MPEG–4 multimedia.
This section proposes that all public-facing content must meet the accessibility requirements in E205.4, which, in turn, requires conformance to WCAG 2.0 Level A and Level AA Success Criteria and Conformance Requirements specified for Web pages or, where applicable, ISO 14289–1 (PDF/UA–1). Public-facing content subject to this provision would include, for example: agency Web sites; electronic documents, images or video posted on agency Web sites; and agency social media sites or postings. Content regardless of form or format—including draft electronic documents—would be covered under this proposed section when public facing. Central to the analysis of whether an electronic document should be considered public facing is the identity of the party making the electronic content available to the public. If a federal agency posts an electronic document on its own Web
This section proposes that an agency's non-public facing content be required to meet the accessibility requirements in E205.4 (
While there is no express exception for draft content in E205.3, the Board expects that drafts, by their very nature, would typically fall outside the scope of agency official communications covered by this section. Generally speaking, only final documents and other electronic materials that are ready for dissemination to their intended audience would qualify as the type of content covered by categories 1 through 8. Draft content would, however, fall within the ambit of proposed E205.3 (and, therefore, be required to conform to WCAG 2.0 or PDF/UA–1) when an agency intends a draft to be “final” in the sense that it is being formally disseminated or published for input or comment by its intended audience. For example, if any agency task force is seeking to improve agency-wide telecommuting policies and circulates a draft policy memorandum by email to the office of human resources for review, neither the email nor draft memorandum would be covered under proposed E205.3. However, if instead, the agency task force had completed its draft policy on telecommuting and circulated the draft policy as an email attachment sent to all agency employees soliciting their input and comments, then both the email and attached draft policy memorandum—regardless of format (
Proposed E205.3 also provides an exception for non-public facing content maintained by NARA for archival purposes even if such content otherwise falls into one of the foregoing eight categories. Such electronic records would not need to conform to the accessibility requirements in proposed E205.4 so long as they remained non-public facing. The Board intends the scope of this exception to be limited, and anticipates that it will extend only to non-public facing electronic materials administered or maintained by NARA in compliance with federal recordkeeping statutes and implementing regulations.
This is an introductory section.
This section proposes that components of ICT that are hardware, and transmit information or have a user interface, must conform to the applicable provisions of Chapter 4.
One hardware provision in the existing 508 Standards that has not been retained in the proposed rule is § 1194.23(a). This section has two parts. First, it requires telecommunications products that provide voice communication to provide a standard non-acoustic connection for a TTY unless the product includes a TTY. Second, it requires microphones to be capable of being turned on and off to allow a user to intermix speech with TTY use. Newer technologies for texting have made the requirement for a standard non-acoustic connection for a TTY obsolete. To address the use of TTYs by individuals also using speech or hearing, the Board is proposing to add section 410.6.5 (HCO and VCO Support). Proposed 410.6.5 would support real-time text functionality and address the capacity for users to intermix speech with text. See Section VI.D. (Section-by-Section Analysis—Technical Requirements—410.6). Comments received in response the 2011 ANPRM did not object to these proposed changes.
This is an introductory section.
This section proposes that components of ICT that transmit information or have a user interface—such as are firmware, platforms, or software applications—must conform to the applicable provisions in Chapter 5.
This section would require that user interface components, along with the content of platforms and applications, conform to Level A and AA Success Criteria and Conformance Requirements specified for Web pages in WCAG 2.0. For a more complete discussion of WCAG conformance requirements in the proposed rule, see the discussion in Section IV.E.2 (Rulemaking History—2010 and 2011 ANPRMs: Significant Issues—Treatment of WCAG 2.0), and Section V.B (Major Issues—WCAG 2.0 Incorporation by Reference).
This is an introductory section.
This section proposes to require agencies, when providing support services or documentation for ICT, to do so in conformance to the provisions of Chapter 6.
These two proposed chapters contain information on the application and administration of the 255 Guidelines. As discussed above, whereas the 508 Standards relate to the accessibility and usability of electronic and information technology, the 255 Guidelines relate to the accessibility and usability of telecommunications equipment and customer premises equipment, as defined by the Communications Act.
Because the technologies covered by the 508 Standards and 255 Guidelines often have similar features and functional and technical aspects, the standards and guidelines share common requirements. For ease of reference, the Board discusses here only those requirements in the 255 Guidelines that differ from those in the 508 Standards. Requirements not discussed in the section below (or mentioned only in brief detail) should be deemed to be the same for both the 255 Guidelines and 508 Standards.
Of note, there are two provisions in the existing 255 Guidelines which the Board proposes to not include in the proposed rule: §§ 1193.41(i) and
In the 2010 ANPRM, the Board followed this recommendation and proposed removal of the existing functional performance criterion specifically directed to cognitive disabilities. The Board did, however, seek public input on whether other proposed functional performance criteria adequately addressed cognitive impairments, and solicited input on how updated ICT rules might best address such impairments. Commenters responded with a variety of views. Some commenters believed that cognitive disabilities were already sufficiently addressed through other criteria and requirements, while others preferred inclusion of a functional performance criterion for cognitive disabilities but offered no substantive proposals. Still other commenters—particularly those representing the IT community—thought more research was needed before meaningful requirements could be crafted. Given the variety of commenters' views and the inherent difficulty in creating a single functional performance criterion that adequately covers the wide spectrum of cognitive and intellectual disabilities, the Board elected not to reinstate this functional performance criterion in either the 2011 ANPRM or this NPRM.
We also propose to exclude existing § 1193.51(d) of the 255 Guidelines relating to TTY connectability from the proposed rule for the reasons outlined above in the discussion regarding proposed E206.1 (which, in turn, addresses proposed deletion of a “sister” existing provision in the 508 Standards). See Section VI.B. (Section-by-Section Analysis—508 Standards: Application and Scoping—E206.1).
This chapter proposes general requirements reflecting the purpose of the 255 Guidelines (C101.1). It lists referenced standards and where they may be obtained (C102), and provides definitions of terms used in the proposed 255 Guidelines (C103). 255 Chapter 1 proposes to simplify and reorganize similar provisions contained in existing §§ 1193.1 “Purpose” and 1193.3 “Definitions” of the 255 Guidelines.
This is an introductory section.
In keeping with the Board's statutory charge under the Communications Act, this section states that the purpose of the proposed 255 Guidelines is the provision of scoping and technical requirements for telecommunications equipment and customer premises equipment to ensure that such equipment is accessible to and usable by individuals with disabilities. This section also emphasizes, moreover, that the proposed guidelines are to be applied to the extent required by regulations issued by the Federal Communications Commission under the Telecommunications Act of 1996 (47 U.S.C. 255). As noted previously, the FCC has exclusive authority to enforce Section 255 and issue implementing regulations; the FCC may—but is not required to—adopt the proposed guidelines when finalized as enforceable accessibility standards for manufacturers of telecommunications equipment and customer premises equipment.
This proposed section addresses when telecommunications equipment manufacturers may use equivalent facilitation, and mirrors a corresponding provision in the proposed 508 Standards (E101.2). While the existing 255 Guidelines do not expressly address equivalent facilitation, the concept of allowing alternative technological solutions for accessibility beyond those specified in the guidelines derives from the Appendix to 36 CFR part 1193—Advisory Guidance, Introduction, paragraph 1, which notes that “Manufacturers are free to use these [suggested strategies in the Appendix] or other strategies in addressing the guidelines.” We proposed inclusion of this equivalent facilitation provision in the 2011 ANPRM and received no comments.
This proposed section, which has a parallel provision in the proposed 508 Standards (E101.3), would provide that dimensions are subject to conventional industry tolerances except where dimensions are stated as a range. This proposed provision would be new to the 255 Guidelines. It is intended to clarify how dimensions should be interpreted when specified in the text of a guideline or referenced standard.
This proposed section, which also has a counterpart in the proposed 508 Standards (E101.4), provides that measurements are stated in metric and U.S. customary units and that the values stated in each system (metric and U.S. customary units) may not be exact equivalents. This section would also provide that each system be used independently of the other. This proposed section is new to the 255 Guidelines, and would clarify dimensions stated in the text of the guidelines or referenced standards.
This section identifies the consensus standards that would be incorporated by reference in the proposed 255 Guidelines. The section also proposes that, where there is a difference between a provision of the proposed 255 Guidelines and a referenced standard, the provision of the 255 Guidelines would take precedence.
Incorporation by reference of these standards would be an improvement from the existing 255 Guidelines, which contain no referenced standards. The Advisory Committee strongly recommended the adoption of specific accessibility consensus standards in order to promote harmonization. The adoption of consensus standards results in a more unified regulatory environment in which all participants benefit from clarity and simplicity.
The standards listed in proposed C102 would apply to ICT subject to the 255 Guidelines to the extent that it is readily achievable to do so. The Board is proposing to incorporate by reference the same standards as those incorporated in the proposed 508 Standards. For a discussion of these standards, see Section VI.B (Section-by-Section Analysis—508 Standards: Application and Scoping—E102).
As noted above, one of the standards proposed for incorporation is WCAG 2.0. As applied telecommunications equipment, this would require manufacturers to conform to WCAG 2.0 when providing electronic content integral to the use of their equipment (under proposed C203.1), a user interface (under proposed C205.2), or support documentation (under proposed C206.1 and 602.3). This would include, for example, consumer manuals for telecommunications equipment posted on manufacturer Web sites, online registration forms, and interactive
This section sets forth definitions of terms used in, or integral to, the proposed 255 Guidelines. Some of the definitions have been carried over in whole or in part from the existing 255 Guidelines, while others represent terms that are new to these guidelines. Proposed C103 would include nearly all of the same defined terms in the proposed 508 Standards, with the exception of one term (
As with the proposed 508 Standards, the Board proposes to replace the term “electronic and information technology (E&IT)”—which appears in both the existing 255 Guidelines and the 508 Standards—with “information and communication technology (ICT).” The scope and application of the term “ICT” are discussed in detail in the Section-by-Section Analysis of the proposed 508 Standards. See Section VI.B (Section-by-Section Analysis—508 Standards: Application and Scoping). We note here that ICT is a broad term that encompasses not only information technology and other electronic systems and processes covered by the 508 Standards, but also telecommunications equipment and customer premises equipment subject to the 255 Guidelines. The term “ICT,” moreover, embraces not only telecommunications equipment, but also its related software and electronic content.
We also propose to revise definitions for “customer premises equipment” (CPE) and “specialized customer premises equipment” found in the existing 255 Guidelines to be consistent with current FCC regulations implementing Section 255 of the Communications Act. (See 47 CFR part 14 (2013)).
Additionally, the Board proposes to add several terms that would be new to the 255 Guidelines. As with the proposed 255 Guidelines, these newly defined terms are being proposed to reflect, among other things, new terminology used in the proposed guidelines or technological changes. One proposed new term is “255 Guidelines.” This term is newly defined in order to provide consistent cross-reference within the guidelines to all chapters that apply to Section 255-covered manufacturers of telecommunications equipment and customer premises equipment, namely: 255 Chapters 1 and 2 (36 CFR part 1194, Appendix B), and Chapters 3 through 6 (36 CFR part 1194, Appendix C). This definition is consistent with proposed § 1194.2, as well as usage of the term throughout this NPRM.
Other newly defined terms in the proposed 255 Guidelines are: “application,” “assistive technologies,” “audio description,” “authoring tool,” “closed functionality,” “content,” “hardware,” “keyboard,” “label,” “name,” “operable part,” “programmatically determinable,” “text,” “menu,” “platform accessibility services,” “platform software,” “real-time text,” “software,” “terminal,” and “Voice over Internet Protocol (VOIP).” Each of these new terms is discussed above in the context of the proposed 508 Standards. See Section VI.B. (Section-by-Section Analysis—508 Standards: Application and Scoping—E103.4).
Lastly, proposed C103.4 would exclude several terms that are defined in the existing 255 Guidelines. These terms are not included in this proposed rule because either the proposed technical requirement associated with the term sufficiently conveys its meaning (
This chapter proposes scoping for requirements applicable to telecommunications equipment manufacturers in the design, development, or fabrication of covered ICT that is newly released, upgraded, or substantially changed from an earlier version or model—that is, the types of ICT that would be required to conform to the proposed functional performance criteria and technical requirements in the 255 Guidelines, as well as the conditions under which these provisions would apply.
Proposed 255 Chapter 2 would differ substantially from its counterpart chapter in the proposed 508 Standards due to the exclusion of several provisions that are inapplicable in the context of Section 255. 255 Chapter 2 also simplifies and reorganizes provisions in existing 255 Guidelines §§ 1193.21, 1193.23, 1193.31, 1193.33, 1193.39 and 1193.41. All scoping provisions would now be located in this chapter.
This is an introductory section.
This section proposes that telecommunications equipment and customer premises equipment, as well as related software, would be required to comply with applicable 255 Guidelines when newly released, upgraded, or substantially modified from an earlier version or model.
The section proposes that, when a telecommunications equipment manufacturer determines that conformance to one or more requirements in Chapter 4 (Hardware) or Chapter 5 (Software) would not be readily achievable, it shall ensure that the equipment or service is compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to the extent readily achievable. This section mirrors § 1193.21 of the existing 255 Guidelines.
This section proposes that telecommunications equipment manufacturers ensure that ICT is accessible to, and usable by, individuals with disabilities by providing direct
This section proposes to prohibit changes in covered ICT that decreases, or has the effect of decreasing, its net accessibility, usability, or compatibility. This provision largely mirrors existing 255 Guidelines § 1193.39. Proposed C201.4 is intended to ensure that accessibility features in existing technology would not be compromised by later alterations in product design. An exception allows for the discontinuation of a product. This provision was proposed in the 2010 ANPRM, but inadvertently omitted from the 2011 ANPRM.
This section proposes a general requirement that telecommunications equipment manufacturers evaluate the accessibility, usability, and interoperability of covered ICT during its design, development, and fabrication. This provision is largely based on § 1193.23(a) of the existing 255 Guidelines. We have not, however, retained § 1193.23(b) of the existing 255 Guidelines, which requires telecommunications equipment manufacturers to consider involving people with disabilities in various aspects of product design and development. We do not include this provision in the proposed 255 Guidelines because it is non-mandatory, advisory material only.
This is an introductory section.
This section proposes that when the technical provisions of Chapter 4 and 5 do not address one or more features of covered ICT, the features not addressed must conform to the Functional Performance Criteria specified in Chapter 3. This proposed section is consistent with 255 Guidelines § 1193.41. For a more complete discussion of this section, see Section V.C (Major Issues—Relationship between Functional Performance Criteria and Technical Provisions).
This is an introductory section.
The section proposes to require content integral to the use of covered ICT to conform to Level A and Level AA Success Criteria and Conformance Requirements specified for Web pages in WCAG 2.0 or ISO 14289–1(PDF/UA–1), both of which are incorporated by reference in 255 Chapter 1. The meaning and application of this provision is discussed in greater detail in Sections V.A (Major Issues—Covered Electronic Content). A similar provision was proposed in the 2011 ANPRM. We received no adverse comments.
This is an introductory section.
This section proposes that, where covered ICT hardware transmits information or has a user interface, such hardware must conform to the applicable provisions in Chapter 4 (Hardware). Two of the main covered hardware components—real-time text and assistive technology—are discussed above in the Major Issues section. See Section V.D (Major Issues—Real-Time Text), and Section V.E (Major Issues—Assistive Technology).
While the requirements applicable to Section 255-covered hardware are generally the same as those applied in the 508 Standards, proposed C204.1 provides one exception, which in turn, excepts Section 255-covered ICT from conforming to five specific requirements. These exceptions are proposed due to considerations unique to telecommunications equipment. Features associated with these proposed exceptions are not typically found on hand-held portable devices subject to the 255 Guidelines, such as mobile phones. The five excepted requirements for which we are proposing relief, along with the underlying rationale, are listed below:
When these five provisions are applicable in the proposed 508 Standards, the exception for commercial non-availability would apply (under proposed E202.6.2), thereby requiring a federal agency to provide a user with disabilities access to, and use of, information by an alternative means that meets his or her identified needs.
This is an introductory section.
This section proposes that, where components of ICT transmit information or have a user interface, they must conform to the applicable provisions in Chapter 5 (Software).
This section proposes that specified components of covered ICT—namely, user interface components, platform content, and application content—must conform to Level A and Level AA Success Criteria and Conformance Requirements specified for Web pages in WCAG 2.0, which is incorporated by reference in Chapter 1. This requirement is new to the 255 Guidelines. In the Major Issues section above, the Board discusses the benefits of, and issues attendant to, incorporation of WCAG 2.0 into the 255 Guidelines and 508 Standards. See Section V.B (Major Issues—WCAG 2.0 Incorporation by Reference).
This is an introductory section.
This section proposes to require that where support documentation or services are provided, they must conform to the proposed provisions of
Appendix C sets forth proposed functional performance criteria (Chapter 3) and technical requirements (Chapters 4 through 6) that are referenced by, and applied in, the Application and Scoping provisions in the 508 Standards (Appendix A) and 255 Guidelines (Appendix B). The proposed requirements in Appendix C are based on recommendations from the Advisory Committee unless otherwise noted.
Chapter 3 contains proposed functional performance criteria, which are outcome-based provisions that apply when applicable technical requirements (
This is an introductory section.
This section proposes that the functional performance criteria in Chapter 3 be applied where either (a) required by 508 Chapter 2 or 255 Chapter 2, or (b) where referenced by other requirements.
This section proposes to revise the criterion for users who are blind. This provision would clarify the requirements in existing 508 Standards § 1194.31(a) and 255 Guidelines § 1193.41(a) by specifying that provision of a mode of operation without vision is required when the ICT otherwise provides a visual mode of operation.
This section proposes to revise the functional performance criterion for users with limited vision so that, where a visual mode of operation is provided, one mode of operation that magnifies, one mode that reduces the field of vision, and one mode that allows user control of contrast would be required. This provision contains significant changes from the functional performance criteria in the existing 508 Standards § 1194.31(b) and existing 255 Guidelines § 1193.41(b). Existing 508 Standards § 1194.31(b) requires at least one mode of operation and information retrieval that does not require visual acuity greater than 20/70 to be provided in both audio and enlarged print output working together or independently. Existing 255 Guidelines § 1193.41(b) is similar, except that it defines users with limited vision as users possessing visual acuity that ranges between 20/70 and 20/200. For a further discussion of the history of these proposed changes, see Section IV.E.6 (Rulemaking History—2010 and 2011 ANPRMs: Significant Issues—Modifications to the Functional Performance Criteria for Limited Vision).
This section proposes to add a new functional performance criterion for users with color blindness to better map to technical specifications in the 508 Standards and 255 Guidelines. Section 302.3 would require at least one mode of operation that does not require user perception of color where a visual mode of operation is provided. The technical provisions in existing 508 Standards §§ 1194.25(g) and 1194.21(i), existing 255 Guidelines § 1193.41(c), as well as proposed 407.7, prohibit color coding from being the only means of conveying information, indicating an action, prompting a response, or distinguishing a visual element.
This section proposes to revise the criterion for users who are deaf. This provision would clarify the requirements in existing 508 Standards § 1194.31(c) and existing 255 Guidelines § 1193.41(d) by specifying that provision of a mode of operation without hearing is required when the ICT otherwise provides an auditory mode of operation.
This section proposes to revise the criterion for users with limited hearing. The existing 508 Standards require at least one mode of operation and information retrieval to be provided in an enhanced auditory fashion. The existing 255 Guidelines require that input, control, and mechanical functions be operable with limited or no hearing. Proposed 302.5 is more specific, and would require at least one mode of operation that improves clarity, one mode that reduces background noise, and one mode that allows user control of volume, when an auditory mode of speech is provided.
This proposed section would clarify the requirements in existing 508 Standards § 1194.31(e) and existing 255 Guidelines § 1193.41(h) by specifying that provision of a mode of operation without speech is only required when the ICT provides a spoken mode of operation. This section is primarily intended to address the needs of users who are unable to speak.
In this section, the Board proposes to address the functional performance criterion for users with limited manipulation. The provision would require that, when ICT provides a manual mode of operation, it must also provide at least one mode of operation that does not require fine motor control or operation of more than one control at the same time. The existing 508 Standards address the needs of users with limited manipulation and users with limited reach or strength in the same criterion (see § 1194.31(f)). By contrast, the existing 255 Guidelines address the needs of users with limited manual dexterity and users with limited reach or strength in different provisions (see §§ 1193.41(e) and (f)). Because these conditions do not necessarily exist together, their respective accessibility solutions are best presented separately. The criterion for users with limited reach or strength is set forth in proposed 302.8.
In this section, the Board proposes to address the functional performance criterion for users with limited reach or strength. The existing 508 Standards address the needs of users with limited manipulation and users with limited reach or strength in the same criterion (see § 1194.31(f)). By contrast, the existing 255 Guidelines address the needs of users with limited manual dexterity and users with limited reach or strength in different criteria (see §§ 1193.41(e) and (f)). Because these conditions do not necessarily exist together, their respective accessibility solutions are best presented separately.
Chapter 4 contains proposed requirements for hardware that transmits information or has a user interface. Examples of such hardware include computers, information kiosks, and multi-function copy machines. This chapter draws substantively from existing 508 Standards, as well as the technical requirements for automatic teller machines and fare machines in the ADA and ABA Accessibility Guidelines. See 36 CFR part 1191, Appendix D, section 707. The requirements in this chapter apply under both the proposed 508 Standards and 255 Guidelines absent an express exception.
Most of the proposed hardware requirements are new to the 255 Guidelines. This is because the existing 255 Guidelines parallel only existing 508 Standards §§ 1194.23 Telecommunications products, 1194.31 Functional performance criteria, and 1194.41 Information, documentation, and support. The existing 255 Guidelines do not currently address the other 508 requirements in Subpart B Technical Standards, namely 508 Standards §§ 1194.21 Software applications and operating systems, 1194.22 Web-based intranet and Internet information and applications, 1194.24 Video and multimedia products, 1194.25 Self-contained, closed products, and 1194.26 Desktop and portable computers. A major objective of this rulemaking is to harmonize the 255 Guidelines and 508 Standards.
Yet, while new to the 255 Guidelines, these proposed hardware rules are generally not expected to have a significant cost impact. Due to convergent technologies, a telecommunications product that previously stood alone may now be part of a more complex system. For example VoIP telephone systems may include a web interface used to operate the telephone. While these products have long been required under existing guidelines to be accessible, see,
With respect to an increasingly ubiquitous type of ICT hardware—self-service transaction machines—the Board has worked collaboratively with the Departments of Justice (DOJ) and Transportation (DOT) to develop a common set of technical requirements that could be referenced and scoped by these agencies in their respective rulemaking initiatives. While each agency has different regulatory authority, self-service transaction machines can be found in a variety of settings, and the accessibility barriers are generally common across these settings. In late 2013, DOT published a final rule implementing the Air Carrier Access Act that addresses accessibility standards for airline Web sites and automated kiosks located at domestic airports. See 78 FR 67882 (Nov. 12, 2013). The DOT requirements for automated kiosks are consistent with existing 508 Standards for self-contained, closed products. In 2010, DOJ published an ANPRM to solicit public comment on accessibility requirements under the Americans with Disabilities Act for furniture and equipment. See 75 FR 43452 (July 26, 2010). Such requirements would cover, among other things, kiosks, interactive transaction machines, and point-of-sale devices. In a future rulemaking, the Board may update the ADA and ABA Accessibility Guidelines to harmonize those guidelines with the proposed 508 Standards and the 255 Guidelines, once finalized.
This is an introductory section.
This section proposes that the technical requirements for hardware in Chapter 4 be applied where (a) required by 508 Chapter 2 or 255 Chapter 2, or (b) where referenced by other requirements. Assistive technology hardware would be excepted from conformance with this chapter. This exception is proposed in response to public comments to the 2010 and 2011 ANPRMs that sought clarification on this point. Commenters expressed the concern that, should this scoping section be read as obligating assistive technology hardware to meet the requirements of this chapter, some assistive technology would not be able to serve its function. For example, people with very low muscle tone might use a specialized membrane keyboard that is completely flat, with no tactilely discernible separation between the keys, because it is the most optimal input device for them. This type of specialized keyboard, however, would not be permitted under proposed 407.3, which addresses tactilely discernible input controls. In light of the specialized nature of assistive technology, the Board proposes it be excepted from the technical requirements in this chapter.
This is an introductory section.
This section proposes to require ICT with closed functionality to be operable without requiring the user to attach or install assistive technology, with the exception of personal headsets or other audio couplers. This provision is needed because, when ICT has closed functionality, the end user typically does not have the option of installing or attaching assistive technology. Closed functionality can also apply to the platform user interface. This is sometimes referred to as “firmware” because it has a software aspect, but is not alterable by the end-user and the user interface is necessarily tied to the hardware platform. The proposed technical requirements for software (Chapter 5) do not specifically address closed functionality, except for the interoperability of software and assistive technology.
Components of ICT subject to the 255 Guidelines would be excepted from the requirements of this section (see C204.1 Exception) because such telecommunications equipment typically has closed functionality. For example, it is often impossible to attach or install assistive technology, such as a specialized keyboard.
Variable message signs (VMS) frequently are installed in federal buildings and facilities to provide information about ongoing events. Some VMS also convey information relevant to emergencies. VMS with closed functionality would be covered by this section. The Board is currently unaware of any VMS technology that provides audible output. However, there is one voluntary consensus standard addressing accessibility of VMS with respect to the needs of persons with low vision. The most recent edition of the International Code Council (ICC)'s “Accessible and Usable Buildings and Facilities” (ICC A117.1–2009) contains specifications for making high-resolution and low-resolution VMS more accessible to people with low vision. For low-resolution signs, these requirements address signage characters (
This section proposes to require ICT with closed functionality that has a display screen to be speech-output enabled. This means that operating instructions and orientation, visible transaction prompts, user input verification, error messages, and all displayed information necessary for full use, would have to be accessible to and usable by individuals with vision impairments. In actual practice, for all but the simplest ICT (
This section proposes to exclude from the requirement for speech output any user inputted content that is not displayed as entered for security purposes, such as when asterisks are shown on-screen instead of personal identification numbers. Excluded material may be delivered as audible tones, rather than as speech.
This section proposes to permit visible output that is not necessary for the transaction being conducted—such as advertisements and similar material—from the requirement for audible output.
This section proposes requirements for user control of speech-enabled output concerning interruption upon selection of a transaction, as well as repeat and pause capabilities. This section is similar to § 1194.25(e) of the existing 508 Standards.
This section proposes that, where displays for ICT with closed functionality are required to have speech output, instructions for initiating the speech mode be provided in braille. Braille instructions would be required to conform to specifications for braille in the ADA and ABA Accessibility Guidelines. See ADA and ABA Accessibility Guidelines, 36 CFR part 1191, Appendix D, section 703.3. This requirement would be new to the 508 Standards. For telecommunications equipment and customer premises equipment subject to Section 255, this requirement is inapplicable; an exception to proposed C204.1 expressly exempts such ICT from this hardware requirement. This proposal was included in the 2011 ANPRM, and the Board received no comments.
This section proposes to require two alternate standards for volume control and output amplification on ICT with closed functionality that delivers sound, depending on whether such sound is being conveyed for private or non-private listening. An exception also provides that ICT conforming to 410.2, which addresses volume gain for ICT with two-way voice communication, would be exempted from complying with this section.
This section proposes to require that, where ICT subject to 402.3 provides a mechanism for private listening—such as a handset or headphone jack—it must have a mode of operation for controlling the volume, and provide a means for effective magnetic wireless coupling to hearing technologies. This proposed requirement would be new to the 508 Standards.
This section proposes to require that, where ICT subject to 402.3 provides non-private listening, incremental volume control must be provided with output amplification up to a level of at least 65 dB. In addition, where the ambient noise level of the environment is above 45 dB, a volume gain of at least 20 dB above the ambient level would be required and must be user selectable. This provision would require a function to be provided to automatically reset the volume to the default level after every use. This section closely corresponds to § 1194.25(f) in the existing 508 Standards.
This section proposes to require that at least one mode of characters displayed on a screen be in sans serif font. In addition, where ICT does not provide a screen enlargement feature, characters would be required to have a minimum height requirement of 3/16 inch based on the uppercase letter “I.” This section would also require that characters contrast with their background with either light characters on a dark background or dark characters on a light background. This section would be new to the 508 Standards.
This is an introductory section.
This section proposes to prohibit biometrics from being the only means for user identification or control unless at least two different biometric options using different biological characteristics are provided. This new exception was recommended by the Advisory Committee. Without the added exception, the language in this section is substantially unchanged from
This is an introductory section.
This section proposes to prohibit ICT that transmits or converts information or communication from removing non-proprietary information provided for accessibility or, if the non-proprietary information or communication is removed, this section would require that it be restored upon delivery. For example, a video or multimedia presentation with closed captioning would be required to retain the caption encoding, or, if removed in transmission, then restore such encoding upon delivery. This provision closely models §§ 1194.23(j) and 1193.37 of the 508 Standards and 255 Guidelines, respectively.
This is an introductory section.
This section proposes that, where ICT emits lights in flashes, there can be no more than three flashes in any one-second period. An exception would allow small flashes not exceeding the general flash and red flash thresholds defined in Success Criterion 2.3.1 of WCAG 2.0 because such flashes do not pose seizure risks to users. This requirement is based on recommendations from the Advisory Committee. This proposed section closely corresponds to existing 508 Standards §§ 1194.21(k), 1194.22(j), and 1194.25(i), and is similar to § 1193.43(f) of the existing 255 Guidelines. The flash rate specification in this section is supported by scientific studies on seizures and photosensitivity.
This is an introductory section.
This section proposes that, where ICT provides data connections used for input and output, at least one of each type of data connection conform to industry standard non-proprietary formats,
This is an introductory section.
This section addresses accessibility features of operable parts—such as keys and controls—when part of the user interface is hardware. This section proposes to require operable parts of ICT to conform to the technical requirements in proposed 407.2, 407.3, and 407.4. This section is consistent with requirements in existing 508 Standards §§ 1194.21 and 1194.25, along with § 1193.41(f) of the existing 255 Guidelines.
This section proposes that keys and controls, where provided, contrast visually from background surfaces. Characters and symbols would have to provide this contrast with either light characters or symbols on a dark background or dark characters or symbols on a light background. The goal of this section is to make operable parts of hardware on ICT more usable for persons with low vision. A contrast requirement for hardware was recommended by the Advisory Committee. It would be new to the 508 Standards and 255 Guidelines.
This section proposes to require that at least one tactilely discernible input control conforming to the requirements of this section be provided for each function. ICT containing touchscreens is widely used in the marketplace. Touchscreens currently are not generally tactilely discernible. This requirement would not prohibit use of touchscreens, membrane keys, or gesture input, provided there is at least one alternative method of input that is tactilely discernible. The intent of this proposed section is to address the difficulty certain people with visual and dexterity impairments often have when using touchscreens. This section, which contains subsections for three types of functions (
The Board is also proposing an exception to the requirement for tactile discernibility for touchscreen-based devices in today's marketplace that have proven to be accessible to—and popular with—people with visual disabilities. Specifically, the proposed exception would exempt devices for personal use offering input controls that (a) are audibly discernible without activation, and (b) operable by touch. Examples of currently available devices without tactilely discernible keyboards that are still navigable and usable by individuals with visual disabilities include devices offered by Apple with the iOS-based VoiceOver feature, such as the iPhone® and iPad®. Technology has evolved to the point where touch screens can be made navigable by blind users. Keyboards are an optional design feature. This proposed exception would be a significant departure from the 508 Standards and 255 Guidelines, but more accurately reflects the state of current technology. We welcome comment on this proposed approach.
In addition, the Board is considering adding to the final rule a requirement that at least one type of input technology on ICT with touch screens be compatible with a prosthetic, similar to the requirement in existing 255 Guidelines § 1193.51(c).
This section proposes to require input controls to be tactilely discernible without activation, as well as operable by touch. It also would require key surfaces outside active areas of display screens to be raised above their surrounding surfaces. The Board notes that, by requiring raised key surfaces, it does not thereby intend to prohibit contouring of keys. Users with limited manual dexterity may prefer concave keys. Contoured keys would be permitted under proposed 407.3.1, for example, by providing keys with raised edges and concave centers, as is often used on computer keyboards and landline telephone keypads. This section is new to the 255 Guidelines, but is similar to existing 508 Standards §§ 1194.23(k)(1), 1194.25(c), and
This section proposes to require alphabetic keys, where provided, to be arranged in a traditional QWERTY layout, with tactilely distinct letter “F” and “J” keys. The requirement for tactilely discernible home row keys derives from existing 508 Standards § 1194.23(k)(1), but would be a new requirement for the 508 Standards and 255 Guidelines. The intent of this section is to address identification and orientation when alphabetic key entry is used. This section was added to the proposed rule at the request of commenters to the 2011 ANPRM, who suggested that a requirement for alphabetic keys was needed to complement the proposed requirement for numeric key layout (proposed 407.3.3). Where a numeric keypad with an alphabetic overlay is provided (such as on a telephone keypad), the relationships between letters and digits would be required to conform to ITU–T Recommendation E.161, as incorporated by reference in 508 Chapter 1 and 255 Chapter 1.
This requirement for a QWERTY layout in keyboards and conformance to ITU–T Recommendation E.161, while new to the 508 Standards and 255 Guidelines, represents current design practice. Accordingly, there should be no additional cost associated with this provision.
This section proposes to require numeric keys, where provided, to be arranged in a 12-key ascending or descending keyboard layout, with a tactilely distinct number “5” key. The requirement for a tactilely discernible “5” key derives from existing 508 Standards § 1194.23(k)(1), but would be a new requirement for the 508 Standards and 255 Guidelines. The intent of this section is to address identification and orientation when numeric data entry is used.
This section proposes to require that, where a keyboard with a key repeat feature is provided, the delay before activation of the key repeat feature must be fixed at, or adjustable to, 2 seconds minimum. The intent of this section is to address the unintentional activation of keys by people with dexterity impairments. The proposed requirement closely corresponds to existing 508 Standards §§ 1194.23(k)(3), 1194.25(c), and 1194.26(b), but is new to the 255 Guidelines. Because telecommunications products generally do not have a key repeat feature, the Board expects the impact of this provision on telecommunications equipment manufacturers to be negligible.
This section proposes to require that where a timed response is required, ICT would have to alert the user visually, as well as by touch or sound. It would also have to provide the user an opportunity to indicate that more time is needed. The intent of this section is to afford people with certain disabilities—namely, those relating to manual dexterity, cognitive disabilities, or otherwise affecting response time—additional time to complete a task, if needed. The proposed requirement is consistent with existing 255 Guidelines § 1193.41(g), and closely corresponds to existing 508 Standards §§ 1194.25(b) and 1194.22(p).
This section would require status indicators, including all locking or toggle controls or keys, such as “Caps Lock” and “Num Lock,” to be discernible visually and by either touch or sound. The intent is to ensure that users who are blind can determine the status of locking or toggle keys audibly or by touch, and that users who are deaf can make this determination visually. This proposed provision closely corresponds to existing 508 Standards §§ 1194.23(k)(4), 1194.25(c), and 1194.26(b), but would be new to the 255 Guidelines. While new to the 255 Guidelines, status indicators for Caps Lock and Num Lock controls represent current design practice. Accordingly, there should be no additional cost associated with this provision.
This section proposes to prohibit color-coding from being the only means of conveying information, indicating an action, prompting a response, or distinguishing a visual element. The proposed section is the same as existing 508 Standards § 1195.25(g), and is consistent with 255 Guidelines § 1193.41(c). The use of color is also addressed in existing 508 Standards § 1194.22(c), which requires that Web pages “be designed so that all information conveyed with color is also available without color, for example from context or mark up.” The intent of the proposed section is to address the needs of people who are color blind or have low vision. The proposed prohibition on color-coding represents current practice in the design of electronic content and, therefore, should not result in any additional cost.
This section proposes to prohibit audio signaling from being the only means of conveying information, indicating an action, or prompting a response. For example, when a landline telephones provides a stutter tone to indicate a voice mail message, such a tone is typically accompanied by an activated light on the phone. This proposal closely parallels the prohibition in existing 508 Standards § 1194.25(g) against use of color as the only means of conveying information. The section is intended to address the needs of individuals with hearing impairments in the same way that proposed 407.7 addresses the needs of persons who have color blindness. Although an express prohibition on audio signaling would be new to the 508 Standards and 255 Guidelines, such a prohibition is implied by the existing functional performance criteria (508 Standards § 1194.31(c)), and represents current industry practice. This proposed provision should not, therefore, result in any significant cost increase.
This section would require ICT with operable parts to provide at least one mode of operation that is operable with one hand, and prohibits operable parts requiring tight grasping, pinching, or twisting of the wrist. The force required to activate operable parts would be limited to 5 lbs. (22.2 N) maximum. The proposed requirement closely corresponds to existing 508 Standards §§ 1194.23(k)(2), 1194.25(c), and 1194.26(b), and is consistent with existing 255 Guidelines §§ 1193.41(e) and (f). This section is aimed at addressing the needs of people with manual dexterity impairments when using operable parts.
This proposed section would require the same degree of privacy of input and output for all individuals. For example,
This section would require that, when kiosks or other ICT provide a key, ticket, or fare card, those objects have a tactilely discernible orientation, if orientation is important to the object's further use. This requirement would be new to the 508 Standards and 255 Guidelines, and is intended to address the needs of individuals with visual impairments. This section is identical to the recently issued final rule by the Department of Transportation concerning the accessibility of tickets and boarding passes issued by shared-use automated kiosks at airport facilities. See Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Web sites and Automated Kiosks at U.S. Airports, 78 FR 67882 (Nov. 12, 2013) (to be codified at 49 CFR part 27). ICT subject to the 255 Guidelines would be expressly exempted from the requirements of this section (by proposed C204.1 Exception) because telecommunications equipment does not typically issue keys, tickets, or fare cards.
This section proposes requirements for the height of side and forward reaches that would enable persons using wheelchairs or other mobility aids to reach and operate at least one of each type of operable part. This proposed section would apply only to ICT that is stationary. By “stationary,” the Board means that the ICT, once put in place, is not intended to be relocated for routine use. Proposed 407.12 parallels existing 508 Standards § 1194.25(j), which applies side reach requirements to ICT that is “freestanding, non-portable, and intended to be used in one location.” We are proposing to use the term “stationary” to address concerns that the word “freestanding” implies an independent supporting structure that may not always be in place, such as with a multifunction printer specifically designed for table-top or desk-top use.
Specifically, this section would establish requirements for position (
This section proposes that the positioning of operable parts for side reaches and forward reaches be determined with respect to a vertical reference plane, with the location and length of the plane dependent on the type of reach. The provisions for a side reach in existing 508 Standards § 1194.25(j)(1) contain references to this same vertical reference plane.
This section proposes that, where a side approach is provided, the vertical reference plane must have a minimum length of 48 inches. The 48-inch dimension is based on the length of a stationary occupied wheelchair. This side reach requirement mirrors existing 508 Standards § 1194.25(j)(1) and Figure 1.
This section proposes that, where a forward reach is provided, the vertical reference plane must be, at a minimum, 30 inches long. The 30-inch dimension is based on the width of a stationary occupied wheelchair. This dimension is consistent with the ADA and ABA Accessibility Guidelines (36 CFR part 1191, Appendix D, section 305.5).
This section specifies proposed requirements for operable parts providing unobstructed or obstructed side reaches. It proposes to limit the height of the portion of the ICT over which a person must reach to access controls to 34 inches maximum in height. Although the existing 508 Standards do not include a maximum height for the portion of the ICT over which a person must reach, the proposed 34 inches maximum height is consistent with ICC A117.1–2009, as well as the ADA and ABA Accessibility Guidelines (36 CFR part 1191, Appendix D, section 308). Without such a height limitation, controls at 48 inches could be out of reach if an obstruction blocked a user's arm and impeded his or her reach to the controls.
This section proposes that, where the operable part is located 10 inches or less behind the vertical reference plane, the operable part must be 48 inches high maximum and 15 inches high minimum above the floor. Although existing 508 Standards § 1194.25(j)(2) permits a maximum reach height of 54 inches, it contains the same minimum height (15 inches) and 10-inch reach depth. The proposed lowering of the maximum height for unobstructed side reach (
This section proposes that, where the operable part is located more than 10 inches, but not more than 24 inches,
This section contains proposed requirements for operable parts providing either an unobstructed or obstructed forward reach. This section proposes to limit the height of an obstruction that must be reached over to operate the control to 34 inches in height. The 34-inch height restriction is consistent with the ADA and ABA Accessibility Guidelines. See 36 CFR part 1191, Appendix D, section 308. The proposed provision would also require the vertical reference plane to be centered on, and intersect with, the operable part.
As noted previously, the existing 508 Standards do not provide specifications for forward reaches. While this requirement (and its subsections) would thus be new to the existing 508 Standards, it nonetheless would provide greater design flexibility by permitting controls to be configured for forward reach (or, alternatively, side reach), at the manufacturer's discretion.
This section proposes that, where an unobstructed forward reach is provided, the operable part must be located 48 inches high maximum and 15 inches high minimum above the floor. An unobstructed forward reach, for purposes of this section, occurs when the operable part is located at the leading edge of the maximum protrusion within the length of the vertical reference plane of the ICT. These dimensions and their resulting geometry are consistent with the ADA and ABA Accessibility Guidelines (36 CFR part 1191, Appendix D, sections 306 and 308).
This section proposes that, where an obstructed forward reach is provided, the maximum allowable forward reach to an operable part would be 25 inches. An obstructed forward reach, for purposes of this section, occurs when the operable part is located behind the leading edge of the maximum protrusion within the length of the vertical reference plane of the ICT. In addition, this proposed section also contains subsections, as discussed below, establishing maximum heights for operable parts with obstructed forward reaches, as well as dimensions for knee and toe spaces. These dimensions and their resulting geometry are consistent with the ADA and ABA Accessibility Guidelines (36 CFR part 1191, Appendix D, sections 306 and 308).
This section, presented in tabular form (Table 407.12.3.2.1), proposes alternative maximum heights for operable parts with obstructed forward reaches depending on reach depth. As specified in this table, if the reach depth of the operable part is less than 20 inches, then the operable part must be no higher than 48 inches. If the reach depth of the operable part is 20 inches to 25 inches, then the operable part must be no higher than 44 inches. These dimensions and their resulting geometry are consistent with the ADA and ABA Accessibility Guidelines (36 CFR part 1191, Appendix D, sections 306 and 308).
This section proposes dimensions for knee and toe space under ICT when an obstructed forward reach is provided. The dimensions necessary to accommodate the full knee and toe space under ICT would be 27 inches high minimum, 25 inches deep maximum, and 30 inches wide minimum. This knee and toe space would also have to be clear of obstructions. These dimensions and their resulting geometry are consistent with the ADA and ABA Accessibility Guidelines (36 CFR part 1191, Appendix D, sections 306 and 308).
There are two proposed exceptions to this knee and toe space requirement. First, toe space with a reduced clear height of 9 inches (rather than 27 inches) would be permitted for a depth of no more than 6 inches. Building on this exception, the second exception would allow further reduction in the height of the space along the profile of the knee to the toe sloping at 6:1 toward the maximum protrusion of the ICT. This means that, for every 6 inches of height, the line can move toward the maximum protrusion of the ICT up to 1 inch or, put another way, 6 inches of rise to 1 inch of run. These two exceptions allow ICT to provide space beneath operable controls for ICT for knees and toes, or a portion of knees and toes, depending on the location of the controls.
This is an introductory section.
This section proposes to require that, where stationary ICT provides one or more display screens, at least one of each type of screen must be visible from a point located 40 inches above the floor space where the display screen is to be viewed. The word “stationary” in this proposed section would have the same meaning as in proposed 407.12. The intent of this provision is to ensure that display screens are viewable by individuals who use wheelchairs or other mobility aids. This would be a new requirement for the 508 Standards. ICT subject to the 255 Guidelines would be expressly exempted from the requirements of this section (by proposed C204.1 Exception) because such equipment is not typically stationary.
In addition to the proposed requirements above, the Board is considering establishing a requirement for the angle of the display screen to be adjustable, so that a person using a wheelchair or other mobility aid could see the entire viewable area of the display screen and minimize the effect of glare.
This is an introductory section.
This section proposes that, where transactional outputs—such as tickets and receipts—are provided by ICT with speech output, the speech output must contain all information necessary to complete or verify a transaction. As applied to ICT with closed functionality and display screens required to be speech-output enabled under proposed 402.2, this section would require all
This proposed requirement in 409.1 would be new to the 508 Standards. ICT subject to the 255 Guidelines would be expressly exempted from the requirements of this section (by proposed C204.1 Exception) because telecommunications equipment generally does not provide transactional outputs. For ICT covered by the 508 Standards, there would be exceptions for three specific types of transactional outputs: Information unrelated to the substance of particular transactions (
Proposed Exception 1 would exempt information regarding the machine location, date and time of transaction, customer account number, and the machine identifier from the proposed requirement for audible transaction output. Although this information may be on printed receipts and other transactional outputs, it is not typically consulted by the user during, or immediately following, a transaction. This proposed exception is based on an exception to the requirements for speech output at Automated Teller Machines and Fare Vending Machines in the ADA and ABA Accessibility Guidelines. See 36 CFR part 1191, Appendix D, section 707.5.2 Exception 1.
Proposed Exception 2 would exempt all information that is part of a transactional output from the proposed requirement if it has already been presented audibly at another point during the same transaction. For example, if a user purchasing stamps on a self-service U.S. Post Office machine selected a particular commemorative stamp and the selected stamp name was presented in an audible format previously in that same transaction, it need not be repeated when the machine issues the stamp.
Proposed Exception 3 would exempt itineraries, maps, or other visual images that are provided on ticketing machines from being required to be presented in an audible format. This exception is proposed in recognition of the technical challenges posed by audible presentation of visual images.
This is an introductory section.
This section addresses the accessibility of telecommunications equipment that offers two- way voice communication (
This section proposes to require ICT with two-way communication to provide volume gain conforming to the FCC's current regulation at 47 CFR 68.317, which establishes technical standards for volume control on analog and digital telephones to facilitate hearing aid compatibility. The proposed section would replace existing 508 Standards § 1194.23(f) and existing 255 Guidelines § 1193.43(e). The Advisory Committee recommended that the Board adopt the FCC's volume gain requirements for landline ICT with two-way voice communication.
In July 2013, the FCC issued a request for comment on a petition for rulemaking filed by a telecommunications industry group requesting that the agency revise its hearing aid compatibility volume control gain requirements for analog and digital telephones.
While the “conversational gain” method of measuring amplification for wireline phones in ANSI/TIA–4965 may hold promise, it would be premature for the Board to reference this standard unless and until it is adopted by the FCC. As the lead regulatory agency on hearing aid compatibility standards for wireline telephones, the FCC is in the best position to assess the technical merits, as well as costs and benefits, of referencing this new TIA standard in any subsequent revisions to its existing regulation in Part 68.
This section proposes to require that, where ICT with two-way voice communication delivers output by an audio transducer that is typically held up to the ear, it provide a means for effective magnetic wireless coupling to hearing technologies, such as hearing aids, cochlear implants, and assistive listening devices. This section is equivalent to §§ 1194.23(h) and
This proposed section would require wireless handsets and digital wireless devices to reduce interference with hearing technologies to the lowest possible level, with interference specifications set forth in proposed subsections 410.4.1 (wireless handsets) and 410.4.2 (digital wireline). This section closely corresponds to existing 508 Standards § 1194.23(i) and 255 Guidelines § 1193.43(h), but also incorporates by references consensus standards developed since the 508 Standards and 255 Guidelines were published.
The proposed subsections 410.4.1 and 410.4.2 refer to industry-accepted standards for performance requirements for mobile and landline telephones.
This section proposes that ICT in the form of wireless handsets—that is, cellular telephones—would be required to conform to ANSI/IEEE C63.19–2011, as incorporated by reference in 508 Chapter 1 and 255 Chapter 1.
This section proposes that ICT in the form of digital wireline devices (such as VoIP-based office desk telephones) would be required to conform to TIA 1083, as incorporated by reference in 508 Chapter 1 and 255 Chapter 1.
This section proposes to require ICT with two-way voice communication to transmit and receive digitally encoded speech in the manner specified by ITU–T Recommendation G.722, a consensus standard for encoding and storing digital audio information that is incorporated by reference in 508 Chapter 1 and 255 Chapter 1. An exception for closed systems would exempt such systems from conformance to ITU–T Recommendation G.722 provided that they conform to another standard that ensures equivalent or better acoustic performance and support conversion to ITU–T Recommendation G.722 at their borders. This provision was recommended by the Advisory Committee to help improve auditory clarity for persons with hearing impairments. It is new to both the 508 Standards and 255 Guidelines.
This proposed section establishes requirements for RTT functionality for ICT that provides real-time voice communication. As noted previously, both the Advisory Committee and the Board believe that RTT represents an important technological advance that provides an equivalent alternative to voice communications for persons who are deaf, as well as those with limited hearing or speech impairments. RTT delivers a more interactive, conversational communication experience compared to standard text messaging. It also provides superior speed and reliability in emergency situations. Furthermore, RTT permits the user to communicate using mainstream devices—such as mobile phones—rather than having to use specialized and expensive devices (such as TTYs). See discussion above in Section IV.E.4 (Rulemaking History—2010 and 2011 ANPRMs: Significant Issues—Coverage of Real-Time Text), and Section V.D (Major Issues—Real-Time Text).
Proposed 410.6 would require that, where ICT supports real-time voice communication, it must also support RTT functionality. Subsections of this proposed provision would, in turn, establish technical requirements for display, text generation, and interoperability. Importantly, proposed 410.6 would not mandate that all ICT provide RTT functionality. Rather, only those ICT that already have real-time voice communication capabilities would be required to support RTT functions. In this way, the Board's approach to requirements for RTT in the proposed rule mirrors the approach taken in the existing 508 Standards and 255 Guidelines toward TTY compatibility. Neither the existing standards and guidelines nor the proposed rule establish an across-the-board command that telecommunications equipment or devices “build in” text capability. Instead, both sets of rules simply require that, when such equipment or devices offer voice communication functions, they must also ensure compatibility with certain types of text communication (
This proposed section is new to the 508 Standards and 255 Guidelines and would require that, wherever ICT provides real-time voice communication and includes a multi-line screen, the ICT must also support the display of real-time text. This provision would not apply to telecommunications devices that either do not have display screens, or only have display screens capable of showing one line of text at a time.
This proposed section is new to the 508 Standards and 255 Guidelines and would require that, wherever ICT provides real-time voice communication and includes a keyboard, the ICT must also support the generation of real-time text.
This section proposes that, where ICT with real-time two-way voice communication operates outside of a closed network or connects to another system, such ICT must ensure real-time text interoperability by using one of two cross-manufacturer, non-proprietary consensus standards depending on the nature of the system with which it is exchanging information—namely, a traditional telephone network or Internet-based telephony.
This section proposes that, where ICT with real-time two-way voice communication interoperates with the publicly switched telephone network (PSTN), real-time text conform to TIA 825–A (incorporated by reference in 508 Chapter 1 and 255 Chapter 1). This is the current industry standard for TTY signals (also known as Baudot) at the PSTN interface.
This section proposes that, where ICT with real-time two-way voice communication interoperates with “Voice over Internet Protocol” (VoIP) products or systems that use Session Initiated Protocol (SIP), real-time text conform to RFC 4103 (incorporated by reference in 508 Chapter 1 and 255 Chapter 1). In Question 8 above, see Section V.D., the Board seeks comment regarding the potential benefits, costs, and drawbacks associated with referencing other standards in addition to RFC 4103.
This section proposes that, where ICT provides real-time two-way voice communication, any associated voice mail, auto-attendant, and interactive voice response systems must be compatible with real-time text functionality. This section derives from existing 508 Standards §§ 1194.23(c)–(e), as well as existing 255 Guidelines §§ 1193.51(d)–(e).
This section proposes that, where ICT provides real-time two-way voice communication, it must permit users to intermix speech with the use of real-
This section proposes that, where ICT provides two-way voice communication, any associated caller identification or similar telecommunications functions must be presented in both visual (
This section proposes that ICT with real-time video functionality must ensure that the quality of the video is sufficient to support communication through sign language. This proposed section would be new to both the 508 Standards and 255 Guidelines. The Advisory Committee recommended that the Board include a provision requiring ICT used to transmit video communications in real-time to meet certain specifications for video quality and fluidity (
The Board's proposals relating to the requisite quality of real-time video communications have received mixed reviews from commenters. In the 2010 ANPRM, the Board proposed specifications for the quality of real-time video communication that largely mirrored the Advisory Committee's recommendation. Many commenters expressed support for the general concept of a video quality requirement as important for ensuring the accessibility of a means of communication, which, for persons who are deaf or hard of hearing, is the functional equivalent of voice communication. Some commenters, on the other hand, were critical of the Board's proposed technical specifications as overly prescriptive or unsupported by research. In light of such concerns, in the 2011 ANPRM, the Board simply proposed—as here in this proposed rule—that the quality of video must be sufficient to support sign language communication. Commenters to the 2011 ANPRM, while again generally supportive of the effort to ensure real-time video communications were usable by persons with hearing impairments, largely took issue with the proposal's lack of testable measures.
While the Board is mindful of commenters' criticisms to the 2011 ANPRM's performance-based standard for video quality of real-time video functionality, the Board has nonetheless retained this standard in this proposed rule. This provision would cover video communication via the web on dedicated videophones, as well as commonly used ICT such as smartphones. We are not aware of standards or specifications for video quality that would provide testable and achievable metrics to assess the quality and transmission of real-time video communications. However, technologies—as well as standards development—have progressed greatly in recent years. We welcome public comment on technological improvements or useful metrics relating to real-time video communication developed since the 2011 ANPRM.
This is an introductory section.
This section addresses the accessibility of audio-visual technologies—including analog and digital televisions, tuners, personal video display devices, converter boxes, and computer equipment—by requiring such technologies to support closed and open captions. Captioning is critical for persons with hearing impairments to use and understand information presented in a video format. Specifically, proposed 411.1 provides that, where audio-visual players and displays process video with synchronized audio, they must either decode closed caption data and display open captions, or pass-through the closed captioning data stream in an accessible format. This proposal largely corresponds to existing 508 Standards §§ 1194.23(j) and 1194.24(a), and existing 255 Guidelines § 1193.37, though it differs in a few notable respects. Due to advances in technology, this proposed section neither distinguishes between analog and digital televisions, nor conditions the requirement for closed caption decoder circuitry on screen size. Additionally, the proposal substitutes the term “synchronized audio information” for “multimedia” because it is more precise and consistent with current terminology.
This section proposes that, where audio-visual players and displays process video with synchronized audio, they must decode closed caption data and support display of open captions.
This section proposes that, where audio-visual players and displays process video with synchronized audio, cabling and ancillary equipment would be required to pass through caption data. High-definition multimedia cables (HDMI) carry audio and video signals, and are technically capable of passing through caption data; typically, however, caption data is not included with the audio-visual stream.
This is an introductory section.
This proposed section would require that, where ICT displays or processes video with synchronized audio, ICT must provide a mode of operation that plays associated audio description. This requirement draws from the audio description requirement in existing 508 Standards § 1194.24(b), but would include a specification for digital television tuners. This would be a new requirement to the 255 Guidelines.
This section proposes that, where audio description is played through a digital television tuner, that such tuner conform to Part 5 of the ATSC A/53 Digital Television Standard (incorporated by reference in 508 Chapter 1 and 255 Chapter 1). The provision then goes on to require that tuners provide processing for audio description when encoded as a Visually Impaired (VI) associated audio service. This is the industry-wide accepted method for delivery of audio description content and the means to identify audio as a VI associated audio service.
This is an introductory section.
This proposed section addresses the accessibility of controls for captioning and audio description on devices used to watch video programming, including analog and digital televisions, tuners, personal video display devices, converter boxes, and computer equipment. Specifically, this provision would require hardware displaying video with synchronized audio to locate user controls for closed captions and audio description in specified locations of equal prominence to common user controls (
The requirements in proposed 413.1 would be new to the 508 Standards and the 255 Guidelines. The Advisory Committee recommended inclusion of this provision to ensure that persons with hearing- and vision-related disabilities can find—and use—captioning and audio description controls. See TEITAC Report, Part 6, Subpt. C, Rec. 4–C. (Complimentary provisions governing software-based on-screen controls for captions and audio description are addressed in proposed 503.4.)
This proposed requirement, albeit with slightly different wording, was included in the 2010 and 2011 ANPRMs. Comments from organizations representing persons with disabilities lauded this proposed requirement as a significant step toward improving the accessibility of captioning and audio description controls. These organizations characterized consumers with disabilities as having long struggled with varying methods among manufacturers for accessing such controls, describing them as typically more complex and less “user friendly” compared to the control of other core functions. They also noted that difficulties locating and using caption and audio description controls is of particular concern for persons with disabilities when in unfamiliar locations (
Commenters with connections to the ICT industry, on the other hand, expressed concern with the broad scope of the proposed provision. These commenters noted that the proposed requirement governing location of controls for captions and audio description would apply not only to televisions and remote controls, but also a wide range of “general purpose” devices—such as desktop computers, laptops, and other mobile devices—for which multimedia output is an incidental function. They suggested that either the scoping of the requirement be modified, or “general purpose” devices be exempted from providing physical buttons for closed captions and audio description. Others simply noted more generally that providing caption controls with equal prominence to volume controls could be problematic for some types of hardware-based ICT.
In late 2013, the FCC issued a final rule addressing, among other things, the accessibility of user interfaces on digital devices and software used to view video programming, including closed captioning and audio description (which, in the Commission's rule, is referred to as “video description”).
Proposed 413.1, in the Board's view, complements the approach taken by the FCC in its final rule on accessibility of user interfaces. As with the FCC's rule, the Board proposes to require that ICT with the capability of displaying video with synchronized audio ensure that controls for closed captions and audio description are accessible to persons with disabilities. Unlike the FCC, however, the Board does propose technical standards—namely, placement of caption and audio description controls—that govern how accessibility must be achieved. This is consistent with the Board's statutory mandate under both the Rehabilitation Act and Communications Act. See 29 U.S.C. 794d(2)(A)(ii), 794d(B); 47 U.S.C. 255(e). Thus, while the FCC may have been statutorily constrained by the CVAA with respect to technical standards for user interfaces, the Board is not. Indeed, one of Board's core missions is the establishment of technical standards. In this way, proposed 413.1 may be seen as complimenting the FCC's recent final rule. Both agencies establish an accessibility mandate for user interfaces on certain ICT that displays video with synchronized audio, but the Board, in this proposed rule, goes one step further by establishing a metric to assess accessibility—namely, placement of user controls for closed captions and audio description in locations of equal prominence to other core functions (
This proposed section would require that, where video-capable hardware provides physical volume adjustment controls, such ICT must also have a control for closed captioning in at least one location of comparable prominence to the volume adjustment controls. So, for example, if a television had physical volume controls on the display panel, as well as its accompanying remote control, this proposed requirement would be satisfied so long as a user control for captions was located either, at the manufacturer's discretion, on the display or remote control in an equally prominent location to the volume control. (If this television also had a feature to adjust volume by way of an on-screen tool or menu, caption control requirements for this on-screen control would be governed by the software-based requirements in proposed 503.4.)
This proposed section would require that, where video-capable hardware provides controls for program selection, such ICT must have user controls for audio description in at least one location of comparable prominence to the program selection controls. This requirement would be new to the 508 Standards. Locating audio description controls in a prominent location is not currently a common design practice, though the Board does not anticipate that it will add substantial cost. In practice, this would require one extra button on a remote control. While not as common as products featuring controls for captioning, there are already products commercially available that feature user controls for audio description.
Chapter 5 contains proposed technical requirements for software, applications, platforms, and software tools. The requirements in this chapter, along with the scoping provisions in proposed E207 and C205, collectively form the “suite” of accessibility requirements for these types of ICT. This chapter is largely drawn from existing 508 Standards § 1194.21, but with updating to harmonize with WCAG 2.0.
This is an introductory section.
This section proposes that the technical requirements for software in this chapter be applied where either (a) required by 508 Chapter 2 or 255 Chapter 2, or (b) where otherwise referenced in any other chapters. There are two exceptions. Exception 1, as proposed, provides that Web applications conforming to all Level A and AA Success Criteria and all Conformance Requirements in WCAG 2.0 need not conform to proposed 502 (Interoperability with Assistive Technology) or 503 (Applications). This exception is provided because software that conforms to WCAG 2.0 AA is already accessible. The value of promoting a single harmonized standard outweighs any small benefit that might be achieved by conforming to overlapping, but separate, standards.
Exception 2 proposes that software that (1) is assistive technology and (2) supports the accessibility services of the platform for which it is designed need not conform with the provisions of this chapter. This exception is included because assistive technology frequently needs flexibility in order to perform well for end-users with disabilities. For example, a switch-activated on-screen keyboard might not have a mode that makes it usable by someone who is blind. This exception is also deliberately limited to software that follows platform specifications because it is important that assistive technology be compatible with other assistive technology.
This is an introductory section.
This section proposes that platforms, software tools provided by platform developers, and applications must conform to the requirements in the accompanying subsections related to documented accessibility features (502.2), accessibility services (502.3), and platform accessibility services (502.4). An exception is provided for platforms and applications that have closed functionality.
This section has implications for both platform developers and federal procurement officials. Agencies would have to ensure that all operating systems they purchase have an associated set of documented accessibility services. Software developers would have to provide accessibility services when creating platforms and their software tools.
This section addresses the compatibility of software and assistive technology. Specifically, under proposed 502.2, platform features that are defined in the platform documentation as accessibility features would be required to conform to requirements in accompanying subsections related to user control (502.2.1) and non-disruption (502.2.2) of accessibility features.
This section proposes that platforms must provide user control over platform features when such features are defined in platform documentation as serving an accessibility purpose. This provision would be new to the 508 Standards and 255 Guidelines, though it draws on the prohibition in § 1194.21(b) of the existing 508 Standards against disrupting or disabling accessibility
This section proposes that, where accessibility features are defined in platform documentation, applications must not disrupt them. This provision mirrors existing 508 Standards § 1194.21(b). The Advisory Committee strongly recommended that the Board include this requirement in the proposed rule not only to ensure accessibility, but also to avoid platform developers from being responsible for incompatibilities that derived from undocumented platform services or hidden requirements of assistive technology. See TEITAC Report, Part 6, Subpt. C, Rec. 3–Q. This proposal was included in the 2010 and 2011 ANPRMs and received no adverse comments.
This section proposes that platforms (such as operating systems) and software tools provided by the platform developer furnish a documented set of accessibility services—usually referred to as Application Programming Interfaces (APIs)—in order to enable applications running on the platform to interoperate with assistive technology. Additionally, applications that are themselves platforms would be required to expose underlying platform accessibility services or implement other document accessibility services.
This proposal does not have an analog in the existing 508 Standards because, at the time the standards were issued in 2000, mainstream operating systems had a well-established track record of providing APIs. Since then, some platforms, particularly those used by first generation mobile devices, stopped providing these requisite components of baseline accessibility. This proposed provision would not represent a significant change from widespread industry practice, since all major platforms have well-developed APIs that incorporate accessibility. Consequently, it is important to expressly require APIs. A documented set of accessibility services is important to end-users because, without them, developers are likely to provide inconsistent access to assistive technology, thereby leaving end-users with disabilities without access to needed features. Well-documented accessibility services are especially important for developers new to accessibility, and can serve to alert all developers to the importance of the accessibility features of platforms.
This section proposes that particular programming elements—namely object role, state, boundary, name, and description—must be programmatically determinable. Moreover, user-adjustable states would be required to be set programmatically, including through assistive technology. This proposal, along with proposed 502.3.3, corresponds to WCAG 2.0 Success Criteria 4.1.2 Name, Role, and Value. It is also consistent with existing 508 Standards § 1194.21(d), but more explicitly provides for the user to be able to change data values, not just read them. Making the specified states programmatically determinable is already a widespread industry practice and is a standard feature provided in software designed to be accessible. Nonetheless, it is important to address this issue in the proposed rule because, on occasion, users of assistive technology find that they can read data in fields, but cannot make changes.
This section proposes that, where a programming object is in a table, occupied rows and columns (
This section proposes that current values, as well as any set or range of allowable values associated with a programming object, must be programmatically determinable. This proposal would also require values that can be set by the user to be capable of being set programmatically, including through assistive technology. This proposal, along with proposed 502.3.1, corresponds to WCAG 2.0 Success Criteria 4.1.2 Name, Role, and Value. An express requirement for values to be set programmatically would be new to the 508 Standards. However, existing industry practice in response to existing standards (
This section proposes that relationships between components must be programmatically exposed to assistive technology where a component labels, or is labeled by, another component. This provision corresponds to §§ 1194.21(l) and 1194.22(n) in the existing 508 Standards, though it is broader in scope since, unlike these current requirements, its coverage extends beyond forms. A similar requirement is set forth in WCAG 2.0 Success Criteria 1.3.1 Info and Relationships. See W3C, Understanding SC 1.3.1, Understanding WCAG 2.0 (Sept. 16, 2014),
This section proposes that any hierarchical (parent-child) relationship between components be programmatically exposed to assistive technology. This is important for individuals who use assistive technology so they can understand the relationships or interdependencies between menu options, database entries, or other software elements that have parent-child relationships. For example, word processing and email software commonly use one or more sub-menus that cascade from a “main” menu item, which permit the user to perform desired actions such as saving a file in a specific format or altering font styles. Requiring components to expose (
This section proposes that the content of text objects, text attributes, and on-screen text boundaries be programmatically determinable. Additionally, text that can be set by the user would have to be capable of being set programmatically, including through assistive technology. This provision would be useful for a screen-reader user, for example, when filling in a field on a form. It would be quite frustrating to be able to navigate to a form field, and perhaps even read placeholder text in that field, but then not be able to enter text as needed. This provision corresponds to § 1194.21(f) in the existing 508 Standards.
This section proposes that a list of all actions that can be executed on an object must be programmatically determinable. An example of an “object” is a drop-down menu of states and U.S. territories in an online form. Applications would also be required to allow assistive technology to programmatically execute available actions on objects. While this requirement is new to the 508 Standards, it represents widespread industry practice. It is also already a feature provided by software designed to be accessible. This proposed requirement is important because, on occasion, developers new to accessibility overlook this need.
This section proposes that software be required to expose information and mechanisms necessary to programmatically track and modify keyboard focus, text insertion point, and selection attributes of user interface components. An example of “focus cursor” is a database, which, as the user hits the tab key, displays a visible box outlining the various fields. This provision corresponds to § 1194.21(c) in the existing 508 Standards.
This section proposes that programmatic notification of events relevant to user interactions—including changes in a component's state, value, name, description, or boundary—must be available to assistive technologies. This proposal complements existing 508 Standards § 1194.21(d), but more explicitly requires that changes to on-screen user interfaces be done in a way that such changes, otherwise known as events, are exposed to assistive technology. Such event notification is already a widespread industry practice, and, moreover, a feature provided by software designed to be accessible. This proposed requirement is important to address this issue in these proposed requirements because, on occasion, developers new to accessibility overlook this need.
This section addresses specifications for capabilities that users with disabilities have come to expect as core accessibility features when using today's platforms and operating systems, such as allowing adjustment of delay before key acceptance and displaying provided captions. These features include: sticky keys; bounce keys; delay keys; show sounds; the ability to produce synthesized speech; and, the capability to display captions included in content. Specifically, this proposal would require platforms and platform software to conform to seven specific sections in ANSI/HFES 200.2, Human Factors Engineering of Software User Interfaces (incorporated by reference in 508 Chapter 1 and 255 Chapter 1). While this proposed requirement (and accompanying incorporation by reference of ANSI/HFES 200.2) is new to the 508 Standards and 255 Guidelines, it does not represent a material change from current industry practice. The seven enumerated features were first available as an add-on for the IBM DOS 3.3 operating system (which was publicly released in the mid-1980s), and have been incorporated into every release of the Microsoft Windows® operating system since then.
This is an introductory section.
This section addresses specifications for non-Web software—that is, programs with a user interface that are executed on a computing platform—related to certain user preferences, interfaces, and controls. The proposed requirements in this section are separate from, and in addition to, any required conformance to WCAG 2.0 success criteria that may be otherwise required under the proposed 508 Standards (under E207) or the 255 Guidelines (under C205).
This section proposes that applications must permit user preferences to carry over from platform settings for text color, contrast, font type, font size, and focus cursor. This closely corresponds to § 1194.21(g) in the existing 508 Standards.
An exception is provided that would exempt software designed to be isolated from the underlying operating system. Lightweight applications (often called “applets”) using the Adobe® Flash® Platform, Oracle® Java Platform, W3C HTML 5 platform, and similar technologies, are commonly isolated in this way for security reasons. Accordingly, it would be a fundamental alteration to require such applications to carry over platform settings.
This section proposes to require that, when applications provide alternative user interfaces that function as assistive technology, such applications must use platform accessibility services (
This proposed section addresses the accessibility of on-screen controls for captioning and audio description. Specifically, this provision would require software displaying video with synchronized audio to locate user controls for closed captions and audio description at the same menu level as common user controls (
These proposed requirements for accessibility of software-based on-screen controls for captions and audio
This proposed section would require that, where video-capable software provides on-screen volume adjustment controls, such ICT must also have a control for closed captioning at the same menu level as the volume adjustment controls.
This proposed section would require that, where video-capable software provides on-screen controls for program selection, such software must have user controls for audio description at the same menu level as the volume or program selection controls.
This is an introductory section.
This section proposes requirements for software used to create or edit electronic content—which is generally referred to as authoring tools—to ensure the accessibility of this content. Specifically, authoring tools would be required to conform to accessibility requirements related to content creation and editing (504.2), prompts (504.3), and templates (504.4) to the extent supported by the destination format. Authoring tools include applications that allow users to develop new Web pages, edit video, or create electronic documents. Authoring tools can also be used to create and publish content for use with telecommunications products or services. One example of a telecommunications equipment-based authoring tool is an interactive voice response system (IVR) that uses software capable of creating content used to populate menu choices.
These proposed requirements for authoring tools are new to the 508 Standards and 255 Guidelines. The Advisory Committee discussed authoring tools and offered recommendations on certain provisions, but did not achieve consensus on others. See TEITAC Report, Part 7, Subpt. C, Rec. 7. Industry is already trending toward providing mainstream document creation tools that facilitate accessible output. For example, two mainstream authoring tools that support accessible document creation and accessibility checking tools are Adobe Acrobat® XI Pro and Microsoft® Office software products. Any cost increases for this requirement should be quite modest for products that already support accessibility. It is not uncommon for developers of niche products to first learn about Section 508 because their product exports reports to PDF, and government customers are likely to encounter end-user complaints when such reports are inaccessible. In this way, while a particular authoring tool may be used only by a small number of people, its outputs—such as government reports—may be widely distributed to the public.
Benefits of accessible content created or edited with authoring tools conforming to proposed 504.1 would accrue to a wide range of disabilities, and the costs associated with making such tools capable of producing accessible output are likely to be minimal. Developers already understand how to make electronic documents accessible in commonly used formats (
This section proposes to require authoring tools to include at least one mode of operation for creating or editing content that conforms to WCAG 2.0 Success Criteria for all features and formats supported by the authoring tool. Additionally, authoring tools must provide users with the option of overriding information required for accessibility to provide flexibility during the authoring process. A proposed exception would exempt authoring tools from compliance when authoring tools are used to directly edit plain text source code (
This section proposes that authoring tools, when converting content or saving content in multiple formats, must preserve information required for accessibility to the extent supported by the destination format. This proposed requirement is similar to § 1194.23(j) in the existing 508 Standards. Because not all authoring tools support different file formats, this provision would only apply when such a tool provides a file conversion feature.
This proposed section would require authoring tools to proactively support the creation of accessible content by providing a mode of operation that prompts users—either during initial content creation or when content is saved—to create accessible content that conforms to all applicable Level A and AA Success Criteria in WCAG 2.0. This requirement is intended to ensure that users have access to accessibility features supported by their authoring tools.
This proposed section would require that, where authoring tools provide templates, templates that facilitate the creation of accessible content conforming to all applicable WCAG 2.0 Level A and Level AA Success Criteria must be provided for a range of template uses. It is much easier to start with an accessible template as compared to adding accessibility features to otherwise finished content. Remediating accessibility problems after content development increases the cost and time necessary to produce accessible content.
Chapter 6 covers accessibility requirements for ICT support documentation and services. This section also would require support services such as help desks, call centers, training services, and automated self-service technical support systems that provide documentation to make available (in accessible formats) the documentation regarding accessibility and compatibility features. Support services would also be required to accommodate the communication needs of individuals with disabilities.
The proposed requirements in this chapter are largely consistent with existing 508 Standards § 1194.41 and existing 255 Guidelines § 1193.33, but would enhance specifications, as discussed below, for certain types of support documentation and services. The Advisory Committee recommended inclusion of provisions on support documentation and services in the proposed rule. See TEITAC Report, Part 6, Subpt. D, Rec. 1.
This is an introductory section.
This section proposes that the technical requirements for support documentation and services in this chapter be applied where either (a) required by 508 Chapter 2 or 255 Chapter 2, or (b) where otherwise referenced in any other chapters.
This is an introductory section.
This section proposes to require documentation supporting the use of ICT to conform to the requirements in the accompanying subsections concerning identification of accessibility and compatibility features (602.2), electronic support documentation (602.3), and alternate formats for non-electronic support documentation (602.4). These proposals for accessible support documentation are derived from §§ 1194.41 and 1193.33 of the existing 508 Standards and 255 Guidelines respectively, but the requirement that electronic documentation comply with WCAG 2.0 or PDF/UA–1 would be new to both the standards and the guidelines. Requiring that comprehensive product information be available to users with disabilities is important because product installation and configuration can often impact its accessibility.
This section provides specifications for ICT documentation in terms of accessibility and compatibility features that assist users with disabilities. Such documentation includes installation guides, user guides, online support, and manuals that describe features of a product and how it is used. All formats of documentation are covered, including printed and electronic documents, and Web-based product support pages.
Proposed 602.2 would require documentation to identify, as well as explain how to use, accessibility features that are required by the 508 Standards or 255 Guidelines. The requirements of this section derive from §§ 1194.41(b) and 1193.33 of the existing 508 Standards and 255 Guidelines, respectively, and are essentially unchanged.
This provision is proposed because some users with disabilities have complained about a lack of information available to help them understand the accessibility and compatibility features of some ICT. Documentation of accessibility features may include, for example, instructions on use of the voice guidance system of a multifunction office machine, or guidance on using software designed for compatibility with commonly used assistive technologies (such as screen readers, refreshable braille displays, and voice recognition software).
This section proposes to require documentation in electronic formats—including Web-based self-service support and electronic documents—to conform to all Level A and AA Success Criteria and Conformance Requirements in WCAG 2.0 or ISO 14289–1 (PDF/UA–1), which are each incorporated by reference in 508 Chapter 1 and 255 Chapter 1. This proposal for accessible electronic support documentation is derived from §§ 1194.41 and 1193.33 of the existing 508 Standards and 255 Guidelines respectively, but the requirement that electronic documentation comply with WCAG 2.0 or PDF/UA–1 would be new to both the standards and the guidelines. The purpose of this requirement is to ensure that support documentation is held to the same accessibility requirements as other types of covered content. The Board included similar provisions in the 2010 and 2011 ANPRMs, and received no adverse comments objecting to this approach.
This section proposes that, where documentation is provided in written (
This is an introductory section.
This section addresses the accessibility of ICT support services, such as help desks, call centers, training centers, and automated self-service technical support. Such support services would be required to conform to the requirements concerning information on accessibility and compatibility features (603.2), as well as accommodation for the communication needs of persons with disabilities (603.3). These proposed requirements for accessible support services are drawn from §§ 1194.41 and 1193.93 of the existing 508 Standards and 255 Guidelines respectively, but have been revised—as supported by the Advisory Committee—to specify methods of delivery for support services. See TEITAC Report, Pt. 6, Subpt. D, Recs. 1.1–A & 1.2–A.
This proposed section complements the product documentation requirements in section 602 by proposing that ICT support services include information on the accessibility and compatibility features for which documentation is required under proposed 602.2.
This proposed section would permit compliant support services to be delivered through either of two methods: Directly to the user or through referral to a point of contact. This section also would require ICT support services to accommodate the communication needs of individuals with disabilities. The portion of this proposal relating to two specific methods for delivery of support services is based on existing 255 Guidelines §§ 1193.33(a)(3) and 1193.33(b), and would be new to the 508 Standards. The portion of the proposal relating to accommodation of communication needs derives from §§ 1194.41(c) and 1193.33 of the 508 Standards and 255 Guidelines, respectively.
The Board is considering making the 508 Standards effective six months after publication of the final rule in the
With respect to federal ICT contracts, the Board proposes deferring to the FAR Council for establishment of the date on which the revised 508 Standards apply to new ICT-related contracts awarded after publication of the Council's final rule, as well as existing ICT contracts with award dates that precede that final rule.
With respect to Section 255, application of the Board's final revised 255 Guidelines to new telecommunications products and customer premises equipment designed, developed, and fabricated after their publication is a matter for the FCC to determine since the FCC has exclusive responsibility for enforcement of Section 255 and issuance of implementing regulations. Nonetheless, in keeping with the Board's past practice in promulgating the existing 255 Guidelines, see 63 FR 5608 (Feb. 3, 1998), the Board proposes making the final revised 255 Guidelines effective 30 days after publication in the
Executive Orders 13563 and 12866 direct agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtaining the regulatory objectives; and in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Important goals of regulatory analysis are to (1) establish whether federal regulation is necessary and justified to achieve a market failure or other social goal and (2) demonstrate that a range of reasonably feasible regulatory alternatives have been considered and that the most efficient and effective alternative has been selected. Executive Order 13563 also recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
The Board contracted with an economic consulting firm, Econometrica, Inc. (Econometrica), to assess, among other things, whether the impact of the proposed rule would likely be economically “significant.” Economic significance is defined as any regulatory action that is likely to result in “an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safely, or State, local, or tribal governments or communities.”
Econometrica prepared a preliminary regulatory impact analysis (Preliminary RIA). This Preliminary RIA determined, among other things, that the proposed rule is economically significant within the meaning of Executive Order 12866. Below we provide a summary of the preliminary RIA's methodology and results. A complete copy of this regulatory assessment is available on the Access Board's Web site (
The focus of the Preliminary RIA is to define and, where possible, quantify and monetize the potential economic benefits and costs of the proposed Section 508 Standards and 255 Guidelines. On the benefits side, the Preliminary RIA monetizes incremental benefits under the proposed 508 Standards attributable to: (a) Increased productivity of federal employees with certain disabilities who are expected to benefit from improved ICT accessibility; (b) time saved by members of the public with vision disabilities when using more accessible federal Web sites; and (c) reduced phone calls to federal agencies as members of the public with certain disabilities shift their inquiries and transactions online due to improved accessibility of federal Web sites. The Preliminary RIA, for analytical purposes, defines the beneficiary population as persons with vision, hearing, and speech disabilities, as well as those with manipulation, reach, or strength limitations. The Preliminary RIA does not formally quantify or monetize benefits accruing from the proposed 255 Guidelines due to insufficient data and methodological constraints.
From the cost perspective, the Preliminary RIA monetizes likely incremental compliance costs under both the proposed 508 Standards and 255 Guidelines. Monetizable costs under the 508 Standards are expected to be incurred by federal agencies, contractors, and vendors in five broad areas: policy development; employee training; development of accessible ICT; evaluation of ICT; and, development of accessible electronic content. With respect to the 255 Guidelines, the Preliminary RIA monetizes the likely costs to telecommunications equipment manufacturers of ensuring that their respective Web sites and electronic support documentation conform to accessibility requirements. Insufficient data were available to assess incremental costs related to other new requirements in the proposed 255 Guidelines, including support for real-time text (RTT) functionality.
Table 4 below summarizes the results from the Preliminary RIA with respect to the likely monetized benefits and costs, on an annualized basis, from the proposed 508 Standards and 255 Guidelines. All monetized benefits and costs are incremental to the applicable baseline, and were estimated for a 10-year time horizon using discount rates of 7 and 3 percent.
It is also important to note that some potentially significant benefits and costs from the proposed 508 Standards and 255 Guidelines are not evaluated in the Preliminary RIA, either because they could not be quantified or monetized (due to lack of data or for other methodological reasons) or are inherently qualitative. These unquantified benefits and costs are described qualitatively below.
Evaluation of the economic impact of the proposed Section 508 and 255 requirements is, moreover, complicated by the rapid evolution of ICT devices, platforms, applications, and consensus standards. The benefits and costs of the proposed standards and guidelines ultimately depend not only on technologies that are currently available to achieve compliance, but also on emerging technologies that may provide more cost-effective ways in the future to ensure equal access to ICT for people with disabilities.
Some of the main components of the Preliminary RIA's methodology are as follows:
The total costs that federal agencies, vendors, and contractors incur to comply with the current 508 Standards are estimated at $2.0 billion annually. This amount represents about 2 percent of annual ICT spending, which is estimated at $80 billion to $120 billion, depending on which products and services are included in the total. Baseline costs for telecommunications equipment manufacturers to conform to the current 255 Guidelines related to product documentation and user support are estimated at $114 million annually. Taken all together, the overall baseline compliance costs are therefore estimated at $2.1 billion annually.
Overall, results from the Preliminary RIA demonstrate that the proposed 508 Standards will likely have substantial monetizable benefits to federal agencies and persons with disabilities. As shown in Table 4 above, the annualized value of monetized benefits from these proposed standards is estimated to be $69.1 million over the 10-year analysis period (assuming a 7 percent discount rate). In calculating these monetized benefits, the Preliminary RIA makes the following assumptions: (a) One-half of the recurring annual benefits derived from accessible ICT would be realized in the first year of implementation; and (b) the number of individuals with disabilities who visit federal agency Web sites will increase every year, but a constant proportion of those individuals will visit such Web sites every year.
It is also important to note that the proposed rule is expected to generate significant benefits that were not evaluated in the Preliminary RIA, either because they could not be quantified or monetized (due to lack of data or for other methodological reasons) or are inherently qualitative. Estimating the economic impact of a civil rights-based regulatory initiative in an area—and marketplace—as dynamic as ICT is a complex and difficult task. Some of these unquantified (or inherently unquantifiable) benefits of the proposed 508 Standards are listed in Table 5 below. The fact that these benefits could not be formally assessed in this Preliminary RIA should not diminish their importance or value.
The Preliminary RIA shows that the proposed standards and guidelines will likely increase compliance costs substantially when first implemented, but will thereafter result in only a small percentage increase in recurring annual costs in later years. Overall, the Preliminary RIA estimates that the total incremental cost of the proposed 508 Standards and 255 Guidelines is expected to be $165.6 million on an annualized basis over the 10-year analysis period, based on a 7 percent discount rate (see Table 4 above).
The Preliminary RIA does not, however, quantify and monetize all potential compliance costs arising from the proposed rule—due primarily to insufficient data or for other methodological limitations. The impact of the proposed 255 Guidelines on telecommunications equipment manufacturers is, as the Preliminary RIA notes, particularly difficult to quantify. (Information on the impact of the proposed guidelines was solicited unsuccessfully in both the 2010 and 2011 ANPRMs.) Some of these unquantified costs of the proposed 508 Standards and 255 Guidelines are listed in Table 6 below.
In addition, incremental cost estimates in the Preliminary RIA do not reflect other potentially influential factors that may occur over time—such as future changes in the fiscal environment and its effect on ICT budgets, the impact of recent government-wide initiatives to manage ICT more strategically, efforts to harmonize standards for a global ICT market, and trends in technological innovation.
While the Preliminary RIA estimates that incremental costs, as assessed and monetized in the assessment, exceed the monetized benefits of the proposed rule, this finding represents only a piece of the regulatory story. Today, though ICT is now woven into the very fabric of everyday life, millions of Americans with disabilities often find themselves unable to use—or use effectively—computers, mobile devices, federal agency Web sites, or electronic content. The Board's existing standards and guidelines are greatly in need of a “refresh” to keep up with technological changes over the past fifteen years. The Board expects this proposed rule to be a major step toward ensuring that ICT is more accessible to and usable by individuals with disabilities—both in the federal workplace and society generally. Indeed, much—if not most—of the benefits expected to accrue from the proposed rule are difficult if not impossible to quantify or monetize, including: greater social equality, human dignity, and fairness. These are all values that, under Executive Order 13563,
Moreover, American companies that manufacture telecommunications equipment and ICT-related products would likely derive significant benefits from the harmonized accessibility standards. Given the relative lack of existing national and globally-recognized standards for accessibility of mobile technologies, telecommunications equipment manufacturers would greatly benefit from harmonization of the 255 Guidelines with consensus standards. Similar benefits would likely accrue more generally to all ICT-related products as a result of harmonization. These manufacturers would earn return on investments in accessibility technology, remain competitive in the global marketplace, and achieve economies of scale created by wider use of nationally and internationally recognized technical standards.
Accordingly, when considering all unquantified benefits and costs, the Access Board, along with its consulting economic firm (Econometrica), jointly conclude that the benefits of the proposed update of the 508 Standards and 255 Guidelines justify its costs.
The Access Board welcomes comments on any aspect of the Preliminary RIA to improve the assumptions, methodology, and estimates of the incremental benefits and costs (baseline and incremental) of the proposed rule. The full Preliminary RIA sets forth numerous regulatory assessment-related questions or areas for public comment. In addition, the Board provides below several additional questions on which it seeks input:
We considered two alternative approaches to updating the existing 508 Standards and 255 Guidelines:
• In the 2010 ANPRM, the Board proposed a set of requirements that were based on, but not identical to, the WCAG 2.0 standards and other voluntary consensus standards. Comments received from the public indicated that this approach was potentially confusing, as federal agencies, contractors, and vendors would have to make specific compliance determinations in cases where the language used in the proposed 508 Standards differed from that in the referenced standard.
• The Board also considered requiring ICT to comply with the full set of functional performance criteria, which state in general terms the features of ICT that ensure its accessibility to people with one or more of different types of disabilities. Comments indicated that this approach would make it difficult for ICT producers to be able to determine whether or not their products and services were compliant with the proposed 508 Standards.
Based on the public feedback on the two policy alternatives, we determined that the clearest and most cost-effective way to set out the proposed accessibility requirements was to identify and reference existing, voluntary consensus standards directly, wherever possible.
The Regulatory Flexibility Act of 1980 (RFA), as amended (5 U.S.C. 601–612) requires agencies to evaluate the potential effects of their rulemakings on small entities.
In 1998, the Board issued the existing 255 Guidelines (36 CFR part 1193). Since then, telecommunications technology and commercial markets have changed dramatically, along with the usage of telecommunications equipment. Given these tremendous changes, the Board is proposing to update the 255 Guidelines.
To determine the number of small businesses potentially subject to the proposed 255 Guidelines, the Board reviewed NAICS industry classifications and SBA small business size standards. The Board determined that three NAICS-based industry classifications may be subject to the proposed 255 Guidelines. These industry categories and their accompanying six-digit NAICS codes are: (a) NAICS Code 334210—Telephone Apparatus Manufacturing; (b) NACIS Code 334220—Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing; and (c) NACIS Code 334111—Electronic and Computer Manufacturing. The Board then matched these three NAICS classifications with SBA small business size standards (based on number of employees) to determine the number of small business within each of the respective classifications.
Table 7 below provides the potential number of small businesses, based on SBA size standards, for each of the three types of equipment manufacturers (by NACIS code) that may be affected by the proposed 255 Guidelines.
A few notes are in order about the foregoing estimates of the number of small firms potentially affected by the 255 Guidelines. First, because all telephone equipment is covered by Section 255, all entities included in the telephone apparatus manufacturing category (334210) are necessarily subject to the guidelines. However, not all entities in the remaining two industry categories (334220 and 334111) are covered by the proposed guidelines because many of these entities may manufacture only equipment that falls outside the scope of Section 255. For example, only radio and broadcasting equipment that meets the statutory definition of telecommunications (that is, “the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received”), is covered by the proposed guidelines. Also, computers lacking modems or Internet telephony software are not covered by the proposed guidelines. However, the Board lacks quantitative information to differentiate regulated from non-regulated manufacturing firms within these two NAICS categories, as well as to determine how many of the “small businesses” in each NAICS category are subject to the proposed guidelines. The number of small entities listed in Table 7 that may be affected by the proposed 255 Guidelines should, therefore, be considered an upper-bound estimate.
Second, given that manufacturers of telecommunications equipment and CPE must comply with Section 255 only to the extent such compliance is “readily achievable” (
Regarding real time text (RTT) requirements under proposed 410.6, the Board lacks quantitative cost information. We requested information on RTT costs in the 2010 and 2011 ANPRMs, but did not receive specific cost data. Accordingly, we cannot, at this time, quantify or monetize the potential cost impact of the proposed RTT requirements in the 255 Guidelines. The Board does, however, seek comment on how to estimate the cost impact of the RTT requirements on small businesses subject to the 255 Guidelines so that we may use such information to prepare, as needed, a final regulatory flexibility analysis.
With respect to the new obligation in proposed 602.3 for Section 255-covered manufacturers to ensure the accessibility of electronic support documentation (such as web-based self-service support and electronic manuals), the Preliminary RIA develops estimated incremental costs, heavily relying on the cost methodology used by the Department of Transportation (DOT) in the regulatory assessment of its recent final rule requiring, among other things, airlines to make their Web sites accessible to persons with disabilities.
Based on the methodology and estimates used in the Preliminary RIA, the Board's Initial RFA assesses potential compliance costs for small manufacturers of telecommunications equipment and CPE based on estimated (a) one-time costs to create accessible electronic support documentation and Web sites, and (2) recurring, annual maintenance costs. One-time costs are assumed to be spread equally over the first two years (
Using these cost assumptions, the Initial RFA evaluates the monetary impact of the proposed 255 Guidelines from three perspectives. The first scenario uses the upper-bound estimate for small businesses that may be affected by the proposed guidelines (
Second, to reflect the reality that compliance may not be readily achievable for the smallest firms (and, as well, the fact that such firms often serve as suppliers to larger firms and thus may not be covered by Section 255), the second scenario uses the mid-point estimate for small businesses that may be affected by the proposed guidelines (
Third, to assess the magnitude of potential compliance costs for small businesses under the proposed 255 Guidelines relative to annual receipts, the third scenario evaluates the ratio of average annualized costs per-firm to average receipts per firm for each of the three NAICS codes. Average annualized costs represent the per-firm stream of estimated one-time and recurring annual costs over the 10-year regulatory horizon at a 7 percent discount rate. Annualized costs are assumed to be consistent across the three NAICS codes for each of the two studied small firm sizes (
The results are presented below in two separate tables by the size (in terms of number of employees) of small firms covered by Section 255.
The results of these average cost/receipt analyses demonstrate that incremental costs of the proposed 255 Guidelines for small businesses—whether larger or smaller than 100 employees—are expected to be minimal relative to firm receipts. In no case would this ratio exceed about one-half of a percent, with ratios ranging from a low of 0.008 to a high of 0.049. Accordingly, based on the foregoing analysis, the Board does not believe that the proposed 255 Guidelines are likely to have a significant economic impact on a substantial number of small entities.
The proposed rule adheres to the fundamental federalism principles and policy making criteria in Executive Order 13132. The proposed 508 Standards apply to the development, procurement, maintenance, or use of ICT by federal agencies. The proposed 255 Guidelines apply to manufacturers of telecommunications equipment and customer premises equipment and require that equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if it is readily achievable to do so. As such, the Board has determined that the proposed rule does not have federalism implications within the meaning of Executive Order 13132.
Executive Order 13609 serves to promote international regulatory cooperation and harmonization. The Access Board has tried to promote the principles of the executive order by making concerted efforts with a number of foreign governments throughout the development of the proposed 508 Standards and 255 Guidelines. For example, the Board and the European Commission have made every effort to coordinate development of their respective ICT standards. This cooperation began with the 2005 EU–US Economic Initiative (
The Unfunded Mandates Reform Act does not apply to proposed or final rules that enforce constitutional rights of individuals or enforce statutory rights that prohibit discrimination on the basis of race, color, sex, national origin, age, handicap, or disability. The proposed 508 Standards are issued pursuant to the Rehabilitation Act. When federal agencies develop, procure, maintain, or use electronic and information technology, they are required to ensure that the electronic and information technology allows federal employees with disabilities to have access to and use of information and data that is comparable to the access enjoyed by federal employees without disabilities, unless doing so would impose an undue burden on the agency. The statute also requires that members of the public with disabilities seeking information or services from a federal agency have access to and use of information and data that is comparable to that provided to other members of the public unless doing so would impose an undue burden on the agency. We have issued the proposed 255 Guidelines pursuant to Section 255 of the Communications Act of 1934 which requires manufacturers of telecommunications equipment and customer premises equipment to ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if it is readily achievable to do so. Accordingly, an assessment of the effect of the proposed 508 Standards and 255 Guidelines on state, local, and tribal governments is not required by the Unfunded Mandates Reform Act.
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3521) requires federal agencies to obtain approval from the Office of Management and Budget (OMB) before requesting or requiring a “collection of information” from the public. As part of the PRA process, agencies are generally required to provide a 60-day notice in the
Proposed C206, along with several provisions in Chapter 6 (Support Documentation and Services), collectively obligate manufacturers of telecommunications equipment and customer premises equipment to provide accessible support documentation and services, which constitute “collection of information” under the PRA. More specifically, the proposed rule requires covered manufacturers, when providing support documentation and services, to ensure accessibility for individuals with disabilities with respect to four categories of information as follows: (1) Support documentation must list and explain how to use accessibility and compatibility features of telecommunications products (602.2); (2) electronic support documentation must conform to WCAG 2.0 or PDF/UA–1 (602.3); (3) non-electronic support documentation in alternate formats (
These four proposed information collection requirements are generally similar to those under existing 255 Guidelines § 1193.33, which were previously reviewed and approved by the Office of Management and Budget (OMB) in accordance with the PRA (OMB Control Number 3014–0010), though compliance with WCAG 2.0 (or PDF/UA–1) is new. The newly proposed information collection is the requirement that telecommunications equipment manufacturers ensure that any electronic documentation (such as web-based self-service support or PDF user guides) provided to end users must meet specified accessibility standards (602.3).
The Board estimates the annual burden on manufacturers of telecommunications equipment and customer premises equipment for the four categories of information collection under the proposed rule as follows:
These estimates are based on the Board's experience with the current information collection requirements under the existing 255 Guidelines, as well as public comment received in response to the 2010 and 2011 ANPRMs. Highlighted below are the key assumptions used in the burden estimation calculus.
•
•
•
•
The Board seeks comment on the methods and assumptions used in estimating the annual burden associated with the information collection requirements in the proposed 255 Guidelines. Organizations and individual desiring to submit comments on this information collection requirements should direct them to the Office of Information and Regulatory Affairs, OMB, Room 10235, New Executive Office Building, Washington, DC 20503; Attention: Desk Officer for the Access Board.
The Board requests comments on these proposed collections of information in:
• Evaluating whether the proposed collection of information is necessary for the proper implementation of Section 255, including whether the information will have a practical use;
• Evaluating the accuracy of the Board's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of collection of information of 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 (
OMB is required to make a decision concerning the collection of information contained in these proposed guidelines between 30 and 60 days after publication of this document in the
As noted previously in the Section-by-Section Analysis for proposed E102 and C102, the Access Board is proposing to incorporate by reference ten consensus standards in the 508 Standards and 255 Guidelines. See Section VI.B (Section-by-Section Analysis—508 Standards: Application and Scoping—E102) and Section VI.C (Section-by-Section Analysis—255 Guidelines: Application and Scoping—C102). The Office of the Federal Register recently promulgated a final rule requiring federal agencies to provide additional information to the public in regulatory preambles for materials to be incorporated by reference.
In keeping with these new obligations for materials proposed for incorporation by reference, the Access Board provides below: (a) Information on the public availability of these ten standards (or, alternatively, how Access Board staff attempted to secure the availability of these materials to the public at no cost or reduced cost, if not already publicly available free of charge by the standards development organization); and (b) summaries of the materials to be incorporated by reference. In addition to the information provided below relating to public availability, a copy of each referenced standard is available for inspection at our agency's office, 1331 F Street NW., Suite 1000, Washington, DC 20004.
Communications, Communications equipment, Individuals with disabilities, Reporting and recordkeeping requirements, Telecommunications.
Civil rights, Communications, Communications equipment, Computer technology, Electronic products, Government employees, Government procurement, Individuals with disabilities, Reporting and recordkeeping requirements, Telecommunications.
For the reasons stated in the preamble, under the authority of 47 U.S.C. 255(e), the Board proposes to amend 36 CFR chapter XI, as follows:
29 U.S.C. 794d, 47 U.S.C. 255.
The standards for information and communication technology developed, procured, maintained, or used by federal agencies covered by Section 508 of the Rehabilitation Act are set forth in Appendices A and C to this part.
The guidelines for telecommunications equipment and customer premises equipment covered by Section 255 of the Communications Act are set forth in Appendices B and C to this part.
E101.1 Purpose. These 508 Standards, which consist of 508 Chapters 1 and 2 (Appendix A), along with Chapters 3 through 6 (Appendix C), contain scoping and technical requirements for information and communication technology (ICT) that is accessible to and usable by individuals with disabilities. Compliance with these standards is mandatory for federal agencies subject to Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d).
E101.2 Equivalent Facilitation. The use of an alternative design or technology that results in substantially equivalent or greater accessibility and usability by individuals with disabilities than would be provided by conformance to one or more of the requirements in Chapters 4 and 5 of the 508 Standards is permitted. The functional performance criteria in Chapter 3 shall be used to determine whether substantially equivalent or greater accessibility and usability is provided to individuals with disabilities.
E101.3 Conventional Industry Tolerances. Dimensions are subject to conventional industry tolerances except where dimensions are stated as a range.
E101.4 Units of Measurement. Measurements are stated in metric and U.S. customary units. The values stated in each system (metric and U.S. customary units) may not be exact equivalents, and each system shall be used independently of the other.
E102.1 Incorporation by Reference. The specific editions of the standards and guidelines listed in E102 are incorporated by reference in the 508 Standards and are part of the requirements to the prescribed extent of each such reference. Where conflicts occur between the 508 Standards and the referenced standards, these standards apply. The Director of the Office of the Federal Register has approved the standards for incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the referenced standards may be inspected at the Access Board's office, 1331 F Street NW., Suite 1000, Washington, DC 20004.
E102.2 American National Standards Institute/Human Factors and Ergonomics Society (ANSI/HFES). Copies of the referenced standard may be obtained from Human Factors and Ergonomics Society, P.O. Box 1369, Santa Monica, CA 90406–1369 (
ANSI/HFES 200.2 Human Factors Engineering of Software User Interfaces — Part 2: Accessibility, (2008), IBR proposed for Section 502.4.
E102.3 American National Standards Institute/Institute of Electrical and Electronics Engineers (ANSI/IEEE). Copies of the referenced standard may be obtained from the Institute of Electrical and Electronics Engineers, 10662 Los Vaqueros Circle, P.O. Box 3014, Los Alamitos, CA 90720–1264 (
ANSI/IEEE C63.19–2011 American National Standard for Methods of Measurement of Compatibility between Wireless Communications Devices and Hearing Aids, Committee C63—Electromagnetic Compatibility, May 27, 2011, IBR proposed for Section 410.4.1.
E102.4 Advanced Television Systems Committee (ATSC). Copies of the referenced standard may be obtained from the Advanced Television Systems Committee, 1776 K Street NW., Suite 200, Washington, DC 20006–2304 (
A/53 Digital Television Standard, Part 5: AC–3 Audio System Characteristics, (2010), IBR proposed for Section 412.1.1.
E102.5 Internet Engineering Task Force (IETF). Copies of the referenced standard may be obtained from the Internet Engineering Task Force (
Request for Comments (RFC) 4103, Real-time Transport Protocol (RTP) Payload for Text Conversation (2005), G. Hellstrom, Omnitor AB, and P. Jones, Cisco Systems, IBR proposed for Section 410.6.3.2.
E102.6 International Standards Organization (ISO). Copies of the referenced standards may be obtained from International Organization for Standardization, ISO Central Secretariat, 1, ch. de la Voie-Creuse, CP 56—CH–1211 Geneva 20, Switzerland (
ISO 14289–1 Document management applications—Electronic document file format enhancement for accessibility—Part 1: Use of ISO 32000–1 (PDF/UA–1), Technical Committee ISO/TC 171, Document Management Applications, Subcommittee SC 2, Application Issues, (2014), IBR proposed for Sections E205.1 and 602.3.1.
E102.7 International Telecommunications Union Telecommunications Standardization Sector (ITU–T). Copies of the referenced standards may be obtained from the International Telecommunication Union, Telecommunications Standardization Sector, Place des Nations CH–1211, Geneva 20, Switzerland (
E102.7.1 ITU–T Recommendation G.722: General Aspects of Digital Transmission Systems, Terminal Components, 7 kHz Audio-Coding within 64 Kbits/s, (September 2012), IBR proposed for Section 410.5.
E102.7.2 ITU–T Recommendation E.161: Arrangement of digits, letters and symbols on telephones and other devices that can be used for gaining access to a telephone network, ITU–T Study Group 2, (February 2001), IBR proposed for Section 407.3.2.
E102.8 Telecommunications Industry Association (TIA). Copies of the referenced standards, published by the Telecommunications Industry Association, may be obtained from IHS, 15 Inverness Way East, Englewood, CO 80112 (
E102.8.1 TIA 825–A A Frequency Shift Keyed Modem for Use on the Public Switched Telephone Network, (2003), IBR proposed for Section 410.6.3.1.
E102.8.2 TIA 1083 Telephone Terminal Equipment Handset Magnetic Measurement Procedures and Performance Requirements, (March 2007), IBR proposed for Section 410.4.2.
E102.9 Worldwide Web Consortium (W3C). Copies of the referenced guidelines may be obtained from the W3C Web Accessibility Initiative, Massachusetts Institute of Technology, 32 Vassar Street, Room 32–G515, Cambridge, MA 02139 (
Web Content Accessibility Guidelines (WCAG) 2.0, W3C Recommendation, December 2008, IBR proposed for Sections E205.1, E207.2, 405.1 Exception, 501.1 Exception 1, 504.2, 504.3, 504.4, and 602.3.1.
E103.1 Terms Defined in Referenced Standards. Terms defined in referenced standards and not defined in E103.4 shall have the meaning as defined in the referenced standards.
E103.2 Undefined Terms. Any term not defined in E103.4 or in referenced standards shall be given its ordinarily accepted meaning in the sense that the context implies.
E103.3 Interchangeability. Words, terms, and phrases used in the singular include the plural and those used in the plural include the singular.
E103.4 Defined Terms. For the purpose of the 508 Standards, the terms defined in E103.4 have the indicated meaning.
E201.1 Scope. ICT that is procured, developed, maintained, or used by agencies shall conform to the 508 Standards.
E202.1 General. ICT shall be exempt from compliance with the 508 Standards to the extent specified by E202.
E202.2 National Security Systems. The 508 standards do not apply to ICT operated by agencies as part of a national security system, as defined by 40 U.S.C. 11103(a).
E202.3 Federal Contracts. ICT acquired by a contractor incidental to a contract shall not be required to conform to the 508 Standards.
E202.4 ICT Functions Located in Maintenance or Monitoring Spaces. Where status indicators and operable parts for ICT functions are located in spaces that are frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment, such status indicators and operable parts shall not be required to conform to the 508 Standards.
E202.5 Undue Burden or Fundamental Alteration. Where an agency determines in accordance with E202.5 that conformance to requirements in the 508 Standards would impose an undue burden or would result in a fundamental alteration in the nature of the ICT, conformance shall be required only to the extent that it does not impose an undue burden or result in a fundamental alteration in the nature of the ICT.
E202.5.1 Basis for a Determination of Undue Burden. In determining whether conformance to requirements in the 508 Standards would impose an undue burden on the agency, the agency shall consider the extent to which conformance would impose significant difficulty or expense considering the agency resources available to the program or component for which the ICT is to be procured, developed, maintained, or used.
E202.5.2 Required Documentation. The responsible agency official shall document in writing the basis for determining that conformance to requirements in the 508 Standards constitute an undue burden on the agency, or would result in a fundamental alteration in the nature of the ICT. The documentation shall include an explanation of why and to what extent compliance with applicable requirements would create an undue burden or result in a fundamental alteration in the nature of the ICT.
E202.5.3 Alternative Means. Where conformance to one or more requirements in the 508 Standards imposes an undue burden or a fundamental alteration in the nature of the ICT, the agency shall provide individuals with disabilities access to and use of information and data by an alternative means that meets identified needs.
E202.6 Best Meets. Where ICT conforming to one or more requirements in
E202.6.1 Required Documentation. The responsible agency official shall document in writing: (a) The nonavailability of conforming ICT, including a description of market research performed and which provisions cannot be met, and (b) the basis for determining that the ICT to be procured best meets the requirements in the 508 Standards consistent with the agency's business needs.
E202.6.2 Alternative Means. Where ICT that fully conforms to the 508 Standards is not commercially available, the agency shall provide individuals with disabilities access to and use of information and data by an alternative means that meets identified needs.
E203.1 General. Agencies shall ensure that all functionality of ICT is accessible to and usable by individuals with disabilities, either directly or by supporting the use of assistive technology, and shall comply with E203. In providing access to all functionality of ICT, agencies shall ensure the following:
a. That federal employees with disabilities have access to and use of information and data that is comparable to the access and use by federal employees who are not individuals with disabilities; and
b. That members of the public with disabilities who are seeking information or data from a federal agency have access to and use of information and data that is comparable to that provided to members of the public who are not individuals with disabilities.
E203.2 Agency Business Needs. When agencies procure, develop, maintain or use ICT they shall identify the business needs of users with disabilities affecting vision, hearing, color perception, speech, dexterity, strength, or reach to determine:
a. How users with disabilities will perform the functions supported by the ICT; and
b. How the ICT will be installed, configured, and maintained to support users with disabilities.
E204.1 General. Where the requirements in Chapters 4 and 5 do not address one or more features of ICT, the features not addressed shall conform to the Functional Performance Criteria specified in Chapter 3.
E205.1 General. Content shall comply with E205.
E205.2 Public Facing. Content that is public facing shall conform to the accessibility requirements specified in E205.4.
E205.3 Agency Official Communication. Content that is not public facing shall conform to the accessibility requirements specified in E205.4 when such content constitutes official business, and is communicated by an agency through one or more of the following:
1. An emergency notification;
2. An initial or final decision adjudicating an administrative claim or proceeding;
3. An internal or external program or policy announcement;
4. A notice of benefits, program eligibility, employment opportunity, or personnel action;
5. A formal acknowledgement or receipt;
6. A questionnaire or survey;
7. A template or form; or
8. Educational or training materials.
EXCEPTION: Records maintained by the National Archives and Records Administration (NARA) pursuant to federal recordkeeping statutes shall not be required to conform to the 508 Standards unless public facing.
E205.4 Accessibility Standards. Content shall conform to Level A and Level AA Success Criteria and Conformance Requirements specified for Web pages in WCAG 2.0 (incorporated by reference in Chapter 1) or, where applicable, ISO 14289–1 (PDF/UA–1) (incorporated by reference in Chapter 1).
E206.1 General. Where components of ICT are hardware and transmit information or have a user interface, such components shall conform to applicable requirements in Chapter 4.
E207.1 General. Where components of ICT are software and transmit information or have a user interface, such components shall conform to E207 and applicable requirements in Chapter 5.
E207.2 WCAG Conformance. User interface components, as well as the content of platforms and applications, shall conform to Level A and Level AA Success Criteria and Conformance Requirements specified for Web pages in WCAG 2.0 (incorporated by reference in Chapter 1).
E208.1 General. Where an agency provides support documentation or services for ICT, such documentation and services shall conform to the requirements in Chapter 6.
C101.1 Purpose. These 255 Guidelines, which consist of 255 Chapters 1 and 2 (Appendix B), along with Chapters 3 through 6 (Appendix C), contain scoping and technical requirements for the design, development, and fabrication of telecommunications equipment and customer premises equipment, and related software, content, and support documentation and services, to ensure their accessibility to and usability by individuals with disabilities. These 255 Guidelines are to be applied to the extent required by regulations issued by the Federal Communications Commission under Section 255 of the Communications Act of 1934, as amended (47 U.S.C. 255).
C101.2 Equivalent Facilitation. The use of an alternative design or technology that results in substantially equivalent or greater accessibility and usability by individuals with disabilities than would be provided by conformance to one or more of the requirements in Chapters 4 and 5 of the 255 Guidelines is permitted. The functional performance criteria in Chapter 3 shall be used to determine whether substantially equivalent or greater accessibility and usability is provided to individuals with disabilities.
C101.3 Conventional Industry Tolerances. Dimensions are subject to conventional industry tolerances except where dimensions are stated as a range.
C101.4 Units of Measurement. Measurements are stated in metric and U.S. customary units. The values stated in each system (metric and U.S. customary units) may not be exact equivalents, and each system shall be used independently of the other.
C102.1 Incorporation by Reference. The specific editions of the standards and guidelines listed in C102 are incorporated by reference in the 255 Guidelines and are part of the requirements to the prescribed extent of each such reference. Where conflicts occur between the 255 Guidelines and the referenced standards, these guidelines apply. The Director of the Office of
C102.2 American National Standards Institute/Human Factors and Ergonomics Society (ANSI/HFES). Copies of the referenced standard may be obtained from Human Factors and Ergonomics Society, P.O. Box 1369, Santa Monica, CA 90406–1369 (
ANSI/HFES 200.2 Human Factors Engineering of Software User Interfaces—Part 2: Accessibility, (2008), IBR proposed for Section 502.4.
C102.3 American National Standards Institute/Institute of Electrical and Electronics Engineers (ANSI/IEEE). Copies of the referenced standard may be obtained from the Institute of Electrical and Electronics Engineers, 10662 Los Vaqueros Circle, P.O. Box 3014, Los Alamitos, CA 90720–1264 (
ANSI/IEEE C63.19–2011 American National Standard for Methods of Measurement of Compatibility between Wireless Communications Devices and Hearing Aids, Committee C63—Electromagnetic Compatibility, May 27, 2011, IBR proposed for Section 410.4.1.
C102.4 Advanced Television Systems Committee (ATSC). Copies of the referenced standard may be obtained from the Advanced Television Systems Committee, 1776 K Street NW., Suite 200, Washington, DC 20006–2304 (
A/53 Digital Television Standard, Part 5: AC–3 Audio System Characteristics, (2010), IBR proposed for Section 412.1.1.
C102.5 IETF.—Internet Engineering Task Force (IETF). Copies of the referenced standard may be obtained from the Internet Engineering Task Force (
Request for Comments (RFC) 4103, Real-time Transport Protocol (RTP) Payload for Text Conversation (2005), G. Hellstrom, Omnitor AB, and P. Jones, Cisco Systems, IBR proposed for Section 410.6.3.2.
C102.6 International Standards Organization (ISO). Copies of the referenced standards, may be obtained from International Organization for Standardization, ISO Central Secretariat, 1, ch. de la Voie-Creuse, CP 56—CH–1211 Geneva 20, Switzerland (
ISO 14289–1 Document management applications—Electronic document file format enhancement for accessibility—Part 1: Use of ISO 32000–1 (PDF/UA–1), Technical Committee ISO/TC 171, Document Management Applications, Subcommittee SC 2, Application Issues, (2014), IBR proposed for Sections E205.1 and 602.3.1.
C102.7 International Telecommunications Union Telecommunications Standardization Sector (ITU–T). Copies of the referenced standards may be obtained from the International Telecommunication Union, Telecommunications Standardization Sector, Place des Nations CH–1211, Geneva 20, Switzerland (
C102.7.1 ITU–T—Recommendation G.722: General Aspects of Digital Transmission Systems, Terminal Components, 7 kHz Audio-Coding within 64 Kbits/s, (September 2012), IBR proposed for Section 410.5.
C102.7.2 ITU–T—Recommendation E.161: Arrangement of digits, letters and symbols on telephones and other devices that can be used for gaining access to a telephone network, ITU–T Study Group 2, (February 2001), IBR proposed for Section 407.3.2.
C102.8 Telecommunications Industry Association (TIA). Copies of the referenced standards, published by the Telecommunications Industry Association, may be obtained from IHS, 15 Inverness Way East, Englewood, CO 80112 (
C102.8.1 TIA 825–A—A Frequency Shift Keyed Modem for Use on the Public Switched Telephone Network, (2003), IBR proposed for Section 410.6.3.1.
C102.8.2 TIA 1083—Telephone Terminal Equipment Handset Magnetic Measurement Procedures and Performance Requirements, (March 2007), IBR proposed for Section 410.4.2.
C102.9 Worldwide Web Consortium (W3C). Copies of the referenced guidelines may be obtained from the W3C Web Accessibility Initiative, Massachusetts Institute of Technology, 32 Vassar Street, Room 32–G515, Cambridge, MA 02139 (
Web Content Accessibility Guidelines (WCAG) 2.0, W3C Recommendation, December 2008, IBR proposed for Sections E205.1, E207.2, 405.1 Exception, 501.1 Exception 1, 504.2, 504.3, 504.4, and 602.3.1.
C103.1 Terms Defined in Referenced Standards. Terms defined in referenced standards and not defined in C103.4 shall have the meaning as defined in the referenced standards.
C103.2 Undefined Terms. Any term not defined in C103.4 or in referenced standards shall be given its ordinarily accepted meaning in the sense that the context implies.
C103.3 Interchangeability. Words, terms, and phrases used in the singular include the plural and those used in the plural include the singular.
C103.4 Defined Terms. For the purpose of the 255 Guidelines, the terms defined in C103.4 have the indicated meaning.
C201.1 Scope. Manufacturers of telecommunications equipment shall comply with the requirements in the 255 Guidelines applicable to such equipment when newly released, upgraded, or substantially changed from an earlier version or model. Manufacturers of telecommunications equipment shall also conform to the requirements in the 255 Guidelines for software, content, and support documentation and services where associated with the use of such equipment.
C201.2 Readily Achievable. When a telecommunications equipment manufacturer determines that conformance to one or more requirements in Chapter 4 (Hardware) or Chapter 5 (Software) would not be readily achievable, it shall ensure that the equipment or software is compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to the extent readily achievable.
C201.3 Access to Functionality. Telecommunications equipment manufacturers shall ensure that ICT is accessible to and usable by individuals with disabilities by providing direct access to all functionality of ICT. Where telecommunications equipment manufacturers can demonstrate that it is not readily achievable for ICT to provide direct access to all functionality, ICT shall support the use of assistive technology and specialized customer premises equipment where readily achievable.
C201.4 Prohibited Reduction of Accessibility, Usability, and Compatibility. No change shall be undertaken that decreases, or has the effect of decreasing, the net accessibility, usability, or compatibility of ICT.
EXCEPTION: Discontinuation of a product shall not be prohibited.
C201.5 Design, Development, and Fabrication. Telecommunications equipment manufacturers shall evaluate the accessibility, usability, and interoperability of ICT during its product design, development, and fabrication.
C202.1 General. Where the requirements in Chapters 4 and 5 do not address one or more features of ICT, the features not addressed shall conform to the Functional Performance Criteria specified in Chapter 3.
C203.1 General. Regardless of the medium or the method of transmission and storage, electronic content integral to the use of ICT shall conform to Level A and Level AA Success Criteria and Conformance Requirements specified for Web pages in WCAG 2.0 (incorporated by reference in Chapter 1) or ISO 14289–1 (PDF/UA–1) (incorporated by reference in Chapter 1).
C204.1 General. Where components of ICT are hardware, and transmit information or have a user interface, those components shall conform to applicable requirements in Chapter 4.
EXCEPTION: Components of ICT shall not be required to conform to 402, 407.11, 407.12, 408, and 409.
C205.1 General. Where components of ICT are software and transmit information or have a user interface, those components shall conform to C205 and applicable requirements in Chapter 5.
C205.2 WCAG Conformance. User interface components and content of platforms and applications shall conform to Level A and Level AA Success Criteria and Conformance Requirements specified for Web pages in WCAG 2.0 (incorporated by reference in Chapter 1).
C206.1 General. Where support documentation and services are provided for ICT, telecommunications equipment manufacturers shall provide such documentation and services in conformance with Chapter 6, upon request and at no additional charge.
301.1 Scope. The requirements of Chapter 3 shall apply to ICT where required by 508 Chapter 2 (Scoping Requirements), 255 Chapter 2 (Scoping Requirements), and where otherwise referenced in any other chapter of the 508 Standards or 255 Guidelines.
302.1 Without Vision. Where a visual mode of operation is provided, ICT shall provide at least one mode of operation that does not require user vision.
302.2 With Limited Vision. Where a visual mode of operation is provided, ICT shall provide at least one mode of operation that magnifies, one mode that reduces the field of vision required, and one mode that allows user control of contrast.
302.3 Without Perception of Color. Where a visual mode of operation is provided, ICT shall provide at least one mode of operation that does not require user perception of color.
302.4 Without Hearing. Where an auditory mode of operation is provided, ICT shall provide at least one mode of operation that does not require user hearing.
302.5 With Limited Hearing. Where an auditory mode of operation is provided, ICT shall provide at least one mode of operation that improves clarity, one mode that reduces background noise, and one mode that allows user control of volume.
302.6 Without Speech. Where a spoken mode of operation is provided, ICT shall provide at least one mode of operation that does not require user speech.
302.7 With Limited Manipulation. Where a manual mode of operation is provided, ICT shall provide at least one mode of operation that does not require fine motor control or operation of more than one control at the same time.
302.8 With Limited Reach and Strength. Where a manual mode of operation is provided, ICT shall provide at least one mode of operation that is operable with limited reach and limited strength.
401.1 Scope. The requirements of Chapter 4 shall apply to ICT that is hardware where required by 508 Chapter 2 (Scoping Requirements), 255 Chapter 2 (Scoping Requirements), and where otherwise referenced in any other chapter of the 508 Standards or 255 Guidelines.
EXCEPTION: Hardware that is assistive technology shall not be required to conform to the requirements of this chapter.
402.1 General. Except for personal headsets and other audio couplers, closed functionality of ICT shall be operable without requiring the user to attach or install assistive technology and shall conform to 402.
402.2 Speech-Output Enabled. ICT with a display screen shall be speech-output enabled. Operating instructions and orientation, visible transaction prompts, user input verification, error messages, and all displayed information for full use shall be accessible to, and independently usable by, individuals with vision impairments. Speech output shall be delivered through a mechanism that is readily available to all users, including, but not limited to, an industry standard connector or a telephone handset. Speech shall be recorded or digitized human, or synthesized. Speech output shall be coordinated with information displayed on the screen.
EXCEPTIONS: 1. Audible tones shall be permitted instead of speech where the content of user input is not displayed as entered for security purposes, including, but not limited to, asterisks representing personal identification numbers. 2. Advertisements and other similar information shall not be required to be audible unless conveying information necessary for the transaction being conducted.
402.2.1 User Control. Speech output for any single function shall be automatically interrupted when a transaction is selected. Speech output shall be capable of being repeated and paused.
402.2.2 Braille Instructions. Where speech output is required by 402.2, braille instructions for initiating the speech mode of operation shall be provided. Braille shall conform to 36 CFR part 1191, Appendix D, Section 703.3.
402.3 Volume. ICT that delivers sound, including speech required by 402.2, shall provide volume control and output amplification conforming to 402.3.
EXCEPTION: ICT conforming to 410.2 shall not be required to conform to 402.3.
402.3.1 Private Listening. Where ICT provides private listening, it shall provide a mode of operation for controlling the volume and a means for effective magnetic wireless coupling to hearing technologies.
402.3.2 Non-private Listening. Where ICT provides non-private listening, incremental volume control shall be provided with output amplification up to a level of at least 65 dB. Where the ambient noise level of the environment is above 45 dB, a volume gain of at least 20 dB above the ambient level shall be user selectable. A function shall be provided to automatically reset the volume to the default level after every use.
402.4 Characters. At least one mode of characters displayed on the screen shall be in a sans serif font. Where ICT does not provide a screen enlargement feature, characters shall be
403.1 General. Biometrics shall not be the only means for user identification or control.
EXCEPTION: Where at least two biometric options that use different biological characteristics are provided, ICT shall be permitted to use biometrics as the only means for user identification or control.
404.1 General. ICT that transmits or converts information or communication shall not remove non-proprietary information provided for accessibility or shall restore it upon delivery.
405.1 General. Where ICT emits lights in flashes, there shall be no more than three flashes in any one-second period.
EXCEPTION: Flashes that do not exceed the general flash and red flash thresholds defined in WCAG 2.0 (incorporated by reference in Chapter 1) are not required to conform to 405.
406.1 General. Where data connections used for input and output are provided, at least one of each type of connection shall conform to industry standard non-proprietary formats.
407.1 General. Where provided, operable parts of ICT shall conform to 407.
407.2 Contrast. Where provided, keys and controls shall contrast visually from background surfaces. Characters and symbols shall contrast visually from background surfaces with either light characters or symbols on a dark background or dark characters or symbols on a light background.
407.3 Tactilely Discernible. At least one tactilely discernible input control shall be provided for each function and shall conform to 407.3.
EXCEPTION: Devices for personal use with input controls that are audibly discernable without activation and operable by touch shall not be required to be tactilely discernible.
407.3.1 Identification. Input controls shall be tactilely discernible without activation and operable by touch. Where provided, key surfaces outside active areas of the display screen shall be raised above surrounding surfaces.
407.3.2 Alphabetic Keys. Where provided, individual alphabetic keys shall be arranged in a QWERTY keyboard layout and the “F” and “J” keys shall be tactilely distinct from the other keys. Where the ICT provides an alphabetic overlay on numeric keys, the relationships between letters and digits shall conform to ITU–T Recommendation E.161 (incorporated by reference in Chapter 1).
407.3.3 Numeric Keys. Where provided, numeric keys shall be arranged in a 12-key ascending or descending keypad layout. The number five key shall be tactilely distinct from the other keys.
407.4 Key Repeat. Where a keyboard with key repeat is provided, the delay before the key repeat feature is activated shall be fixed at, or adjustable to, 2 seconds minimum.
407.5 Timed Response. Where a timed response is required, the user shall be alerted visually, as well as by touch or sound, and shall be given the opportunity to indicate that more time is needed.
407.6 Status Indicators. Status indicators, including all locking or toggle controls or keys (
407.7 Color. Color coding shall not be used as the only means of conveying information, indicating an action, prompting a response, or distinguishing a visual element.
407.8 Audio Signaling. Audio signaling shall not be used as the only means of conveying information, indicating an action, or prompting a response.
407.9 Operation. At least one mode of operation shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist. The force required to activate operable parts shall be 5 pounds (22.2 N) maximum.
407.10 Privacy. The same degree of privacy of input and output shall be provided to all individuals. When speech output required by 402.2 is enabled, the screen shall not blank automatically.
407.11 Keys, Tickets, and Fare Cards. Where keys, tickets, or fare cards are provided, keys, tickets, and fare cards shall have an orientation that is tactilely discernible if orientation is important to further use of the key, ticket, or fare card.
407.12 Reach Height. At least one of each type of operable part of stationary ICT shall be at a height conforming to 407.12.2 or 407.12.3 according to its position established in 407.12.1 for a side reach or a forward reach.
407.12.1 Vertical Reference Plane. Operable parts shall be positioned for a side reach or a forward reach determined with respect to a vertical reference plane. The vertical reference plane shall be located in conformance to 407.12.2 or 407.12.3.
407.12.1.1 Vertical Plane for Side Reach. Where a side reach is provided, the vertical reference plane shall be 48 inches (1220 mm) long minimum.
407.12.1.2 Vertical Plane for Forward Reach. Where a forward reach is provided, the vertical reference plane shall be 30 inches (760 mm) long minimum.
407.12.2 Side Reach. Operable parts of ICT providing a side reach shall conform to 407.12.2.1 or 407.12.2.2. The vertical reference plane shall be centered on the operable part and placed at the leading edge of the maximum protrusion of the ICT within the length of the vertical reference plane. Where a side reach requires a reach over a portion of the ICT, the height of that portion of the ICT shall be 34 inches (865 mm) maximum.
407.12.2.1 Unobstructed Side Reach. Where the operable part is located 10 inches (255 mm) or less beyond the vertical reference plane, the operable part shall be 48 inches (1220 mm) high maximum and 15 inches (380 mm) high minimum above the floor.
407.12.2.2 Obstructed Side Reach. Where the operable part is located more than 10 inches (255 mm), but not more than 24 inches (610 mm), beyond the vertical
407.12.3 Forward Reach. Operable parts of ICT providing a forward reach shall conform to 407.12.3.1 or 407.12.3.2. The vertical reference plane shall be centered, and intersect with, the operable part. Where a forward reach allows a reach over a portion of the ICT, the height of that portion of the ICT shall be 34 inches (865 mm) maximum.
407.12.3.1 Unobstructed Forward Reach. Where the operable part is located at the leading edge of the maximum protrusion within the length of the vertical reference plane of the ICT, the operable part shall be 48 inches (1220 mm) high maximum and 15 inches (380 mm) high minimum above the floor.
407.12.3.2 Obstructed Forward Reach. Where the operable part is located beyond the leading edge of the maximum protrusion within the length of the vertical reference plane, the operable part shall conform to 407.12.3.2. The maximum allowable forward reach to an operable part shall be 25 inches (635 mm).
407.12.3.2.1 Height. The height of the operable part shall conform to Table 407.12.3.2.1.
407.12.3.2.2 Knee and Toe Space. Knee and toe space under ICT shall be 27 inches (685 mm) high minimum, 25 inches (635 mm) deep maximum, and 30 inches (760 mm) wide minimum and shall be clear of obstructions.
EXCEPTIONS: 1. Toe space shall be permitted to provide a clear height of 9 inches (230 mm) minimum above the floor and a clear depth of 6 inches (150 mm) maximum from the vertical reference plane toward the leading edge of the ICT. 2. At a depth of 6 inches (150 mm) maximum from the vertical reference plane toward the leading edge of the ICT, space between 9 inches (230 mm) and 27 inches (685 mm) minimum above the floor shall be permitted to reduce at a rate of 1 inch (25 mm) in depth for every 6 inches (150 mm) in height.
408.1 General. Where stationary ICT provides one or more display screens, at least one of each type of display screen shall be visible from a point located 40 inches (1015 mm) above the floor space where the display screen is viewed.
409.1 General. Where transactional outputs are provided by ICT with speech output, the speech output shall audibly provide all information necessary to complete or verify a transaction.
EXCEPTIONS: 1. Machine location, date and time of transaction, customer account number, and the machine identifier shall not be required to be audible. 2. Duplicative information shall not be required to be repeated where such information has already been presented audibly. 3. Itineraries, maps, checks, and other visual images shall not be required to be audible.
410.1 General. ICT that provides two-way voice communication shall conform to 410.
410.2 Volume Gain. Volume gain shall be provided and shall conform to 47 CFR 68.317.
410.3 Magnetic Coupling. Where ICT delivers output by an audio transducer that is typically held up to the ear, ICT shall provide a means for effective magnetic wireless coupling to hearing technologies, such as hearing aids, cochlear implants, and assistive listening devices.
410.4 Minimize Interference. ICT shall reduce interference with hearing technologies to the lowest possible level and shall conform to 410.4.
410.4.1 Wireless Handsets. ICT in the form of wireless handsets shall conform to ANSI/IEEE C63.19–2011 (incorporated by reference in Chapter 1).
410.4.2 Digital Wireline. ICT in the form of digital wireline devices shall conform to TIA 1083 (incorporated by reference in Chapter 1).
410.5 Digital Encoding of Speech. ICT shall transmit and receive speech that is digitally encoded in the manner specified by ITU–T Recommendation G.722 (incorporated by reference in Chapter 1) for encoding and storing audio information.
EXCEPTION: Where ICT is a closed system, conformance to standards other than ITU–T Recommendation G.722 shall be permitted where equivalent or better acoustic performance is provided and where conversion to ITU–T Recommendation G.722 at the borders of the closed system is supported.
410.6 Real-Time Text Functionality. Where ICT provides real-time voice communication, ICT shall support real-time text functionality and shall conform to 410.6.
410.6.1 Display of Real-Time Text. Where provided, multi-line displays shall be compatible with real-time text systems used on the network.
410.6.2 Text Generation. Where provided, features capable of text generation shall be compatible with real-time text systems used on the network.
410.6.3 Interoperability. Where ICT interoperates outside of a closed system of which it is a part, or where ICT connects to other systems, ICT shall conform to 410.6.3.1 or 410.6.3.2.
410.6.3.1 PSTN. Where ICT interoperates with the Public Switched Telephone Network (PSTN), real-time text shall conform to TIA 825–A (incorporated by reference in Chapter 1).
410.6.3.2 VoIP Using SIP. Where ICT interoperates with Voice over Internet Protocol (VoIP) products or systems using Session Initiation Protocol (SIP), real-time text shall conform to RFC 4103 (incorporated by reference in Chapter 1).
410.6.4 Voice Mail, Auto-Attendant, and IVR Compatibility. Where provided, voice mail, auto-attendant, and interactive voice response telecommunications systems shall be compatible with real-time text that conforms to 410.6.3.
410.6.5 HCO and VCO Support. Real-time voice communication shall permit users to intermix speech with the use of real-time text and shall support modes that are compatible with Hearing Carry Over (HCO) and Voice Carry Over (VCO).
410.7 Caller ID. Where provided, caller identification and similar telecommunications functions shall be visible and audible.
410.8 Video Communication. Where ICT provides real-time video functionality, the quality of the video shall be sufficient to support communication using sign language.
411.1 General. Where ICT displays or processes video with synchronized audio, ICT shall conform to 411.1.1 or 411.1.2.
411.1.1 Decoding of Closed Captions. Players and displays shall decode closed caption data and support display of captions.
411.1.2 Pass-Through of Closed Caption Data. Cabling and ancillary equipment shall pass through caption data.
412.1 General. Where ICT displays or processes video with synchronized audio, ICT shall provide a mode of operation that plays associated audio description.
412.1.1 Digital Television Tuners. Where audio description is played through digital television tuners, the tuners shall conform to ATSC A/53 Digital Television Standard, Part 5 (2010) (incorporated by reference in Chapter 1). Digital television tuners shall provide processing of audio description when encoded as a Visually Impaired (VI) associated audio service that is provided as a complete program mix containing audio description according to the ATSC A/53 standard.
413.1 General. Where ICT displays video with synchronized audio, ICT shall provide user controls for closed captions and audio description conforming to 413.1.
EXCEPTION: Devices for personal use where closed captions and audio description can be enabled through system-wide platform settings shall not be required to conform to 413.1.
413.1.1 Caption Controls. ICT shall provide user controls for the selection of captions in at least one location that is comparable in prominence to the location of the user controls for volume.
413.1.2 Audio Description Controls. ICT shall provide user controls for the selection of audio description in at least one location that is comparable in prominence to the
501.1 Scope. The requirements of Chapter 5 shall apply to ICT software and applications where required by 508 Chapter 2 (Scoping Requirements), 255 Chapter 2 (Scoping Requirements), and where otherwise referenced in any other chapter of the 508 Standards or 255 Guidelines.
EXCEPTIONS: 1. Web applications that conform to all Level A and Level AA Success Criteria and all Conformance Requirements in WCAG 2.0 (incorporated by reference in Chapter 1) shall not be required to conform to 502 and 503. 2. Software that is assistive technology and that supports the accessibility services of the platform shall not be required to conform to the requirements in this chapter.
502.1 General. Platforms, software tools provided by the platform developer, and applications, shall conform to 502.
EXCEPTION: Platforms and applications that have closed functionality and that conform to 402 shall not be required to conform to 502.
502.2 Documented Accessibility Features. Platforms and applications shall conform to 502.2.
502.2.1 User Control of Accessibility Features. Platforms shall provide user control over platform features that are defined in the platform documentation as accessibility features.
502.2.2 No Disruption of Accessibility Features. Applications shall not disrupt platform features that are defined in the platform documentation as accessibility features.
502.3 Accessibility Services. Platforms and software tools provided by the platform developer shall provide a documented set of accessibility services that support applications running on the platform to interoperate with assistive technology and shall conform to 502.3. Applications that are also platforms shall expose the underlying platform accessibility services or implement other documented accessibility services.
502.3.1 Object Information. The object role, state(s), boundary, name, and description shall be programmatically determinable. States that can be set by the user shall be capable of being set programmatically, including through assistive technology.
502.3.2 Row, Column, and Headers. If an object is in a table, the occupied rows and columns, and any headers associated with those rows or columns, shall be programmatically determinable.
502.3.3 Values. Any current value(s), and any set or range of allowable values associated with an object, shall be programmatically determinable. Values that can be set by the user shall be capable of being set programmatically, including through assistive technology.
502.3.4 Label Relationships. Any relationship that a component has as a label for another component, or of being labeled by another component, shall be programmatically determinable.
502.3.5 Hierarchical Relationships. Any hierarchical (parent-child) relationship that a component has as a container for, or being contained by, another component shall be programmatically determinable.
502.3.6 Text. The content of text objects, text attributes, and the boundary of text rendered to the screen, shall be programmatically determinable. Text that can be set by the user shall be capable of being set programmatically, including through assistive technology.
502.3.7 Actions. A list of all actions that can be executed on an object shall be programmatically determinable. Applications shall allow assistive technology to programmatically execute available actions on objects.
502.3.8 Focus Cursor. Applications shall expose information and mechanisms necessary to track and modify focus, text insertion point, and selection attributes of user interface components.
502.3.9 Event Notification. Notification of events relevant to user interactions, including but not limited to, changes in the component's state(s), value, name, description, or boundary, shall be available to assistive technology.
502.4 Platform Accessibility Features. Platforms and platform software shall conform to the requirements in ANSI/HFES 200.2, Human Factors Engineering of Software User Interfaces—Part 2: Accessibility (incorporated by reference in Chapter 1) listed below:
1. Section 9.3.3 Enable sequential entry of multiple (chorded) keystrokes.
2. Section 9.3.4 Provide adjustment of delay before key acceptance.
3. Section 9.3.5 Provide adjustment of same-key double-strike acceptance.
4. Section 10.6.7 Allow users to choose visual alternative for audio output.
5. Section 10.6.8 Synchronize audio equivalents for visual events.
6. Section 10.6.9 Provide speech output services.
7. Section 10.7.1 Display any captions provided.
503.1 General. Applications shall conform to 503.
503.2 User Preferences. Applications shall permit user preferences from platform settings for color, contrast, font type, font size, and focus cursor.
EXCEPTION: Applications that are designed to be isolated from their underlying platforms, including Web applications, shall not be required to conform to 503.2.
503.3 Alternative User Interfaces. Where an application provides an alternative user interface that functions as assistive technology, the application shall use platform and other industry standard accessibility services.
503.4 User Controls for Captions and Audio Description. Where ICT displays video with synchronized audio, ICT shall provide user controls for closed captions and audio description conforming to 503.4.
503.4.1 Caption Controls. Where user controls are provided for volume adjustment, ICT shall provide user controls for the selection of captions at the same menu level as the user controls for volume or program selection.
503.4.2 Audio Description Controls. Where user controls are provided for program selection, ICT shall provide user controls for the selection of audio description at the same menu level as the user controls for volume or program selection.
504.1 General. Where an application is an authoring tool, the application shall conform to 504 to the extent that information required for accessibility is supported by the destination format.
504.2 Content Creation or Editing. Authoring tools shall provide a mode of operation to create or edit content that conforms to all Level A and Level AA Success Criteria and all Conformance Requirements in WCAG 2.0 (incorporated by reference in Chapter 1) for all features and formats supported by the authoring tool. Authoring tools shall permit authors the option of overriding information required for accessibility.
EXCEPTION: Authoring tools shall not be required to conform to 504.2 when used to directly edit plain text source code.
504.2.1 Preservation of Information Provided for Accessibility in Format Conversion. Authoring tools shall, when converting content from one format to another or saving content in multiple formats, preserve the information required for accessibility to the extent that the information is supported by the destination format.
504.3 Prompts. Authoring tools shall provide a mode of operation that prompts authors to create content that conforms to all Level A and Level AA Success Criteria and all Conformance Requirements in WCAG 2.0 (incorporated by reference in Chapter 1). Authoring tools shall provide the option for prompts during initial content creation or when the content is saved.
504.4 Templates. Where templates are provided, templates allowing content creation that conforms to all Level A and Level AA Success Criteria and all Conformance Requirements in WCAG 2.0 (incorporated by reference in Chapter 1) shall be provided for a range of template uses.
601.1 Scope. The technical requirements in Chapter 6 shall apply to ICT support documentation and services where required by 508 Chapter 2 (Scoping Requirements), 255 Chapter 2 (Scoping Requirements), and where otherwise referenced in any other chapter of the 508 Standards or 255 Guidelines.
602.1 General. Documentation that supports the use of ICT shall conform to 602.
602.2 Accessibility and Compatibility Features. Documentation shall list and
602.3 Electronic Support Documentation. Documentation in electronic format, including Web-based self-service support, shall conform to all Level A and Level AA Success Criteria and all Conformance Requirements in WCAG 2.0 (incorporated by reference in Chapter 1), or ISO 14289–1 (PDF/UA–1) (incorporated by reference in Chapter 1).
602.4 Alternate Formats for Non-electronic Support Documentation. Alternate formats usable by individuals who are blind or have low vision shall be provided upon request for support documentation in non-electronic formats.
603.1 General. ICT support services including, but not limited to, help desks, call centers, training services, and automated self-service technical support, shall conform to 603.
603.2 Information on Accessibility and Compatibility Features. ICT support services shall include information on the accessibility and compatibility features required by 602.2.
603.3 Accommodation of Communication Needs. Support services shall be provided directly to the user or through a referral to a point of contact. Such ICT support services shall accommodate the communication needs of individuals with disabilities.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The Rail Safety Improvement Act of 2008 requires the development and implementation of railroad safety risk reduction programs. This NPRM proposes to implement this mandate by requiring each Class I railroad and each railroad with inadequate safety performance to develop and implement a Risk Reduction Program (RRP) to improve the safety of their operations. RRP is a comprehensive, system-oriented approach to safety that determines an operation's level of risk by identifying and analyzing applicable hazards and involves developing plans to mitigate, if not eliminate, that risk. Each RRP would be statutorily required to include a risk analysis and a technology implementation plan. An RRP would be implemented by a written RRP plan that has been submitted to FRA for review and approval. A railroad would be required to conduct an annual internal assessment of its RRP, and a railroad's RRP processes and procedures would be externally audited by FRA.
Written comments must be received by April 28, 2015. Comments received after that date will be considered to the extent possible without incurring additional expense or delay.
FRA anticipates being able to resolve this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to March 30, 2015, one will be scheduled and FRA will publish a supplemental notice in the
•
•
•
•
Miriam Kloeppel, Staff Director, Risk Reduction Program Division, U.S. Department of Transportation, Federal Railroad Administration, Office of Railroad Safety, Mail Stop 25, West Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202–493–6224),
The proposed rulemaking would add to FRA's regulations a new part, which would require each Class I railroad and each railroad with inadequate safety performance to develop and implement a Risk Reduction Program (RRP). An RRP is a structured program with proactive processes and procedures developed and implemented by a railroad to identify hazards and to mitigate, if not eliminate, the risks associated with those hazards on its system. An RRP encourages a railroad and its employees to work together to proactively identify hazards and to jointly determine what action to take to mitigate or eliminate the associated risks.
FRA understands that each railroad that would be subject to the RRP rule would have a unique operating system, and that not all railroads have the same amount of resources. Best practices for implementing an RRP would therefore differ from railroad to railroad. Accordingly, the proposed RRP rule does not establish prescriptive requirements that may be appropriate for one railroad but unworkable for another. Instead, the rule proposes only general, performance-based requirements. This approach would
FRA is proposing this RRP rule as part of its efforts to continually improve rail safety and to satisfy the statutory mandate contained in sec. 103 and sec. 109 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110–432, Division A, 122 Stat. 4848
Section 103 of the RSIA directs the Secretary of Transportation (Secretary) to issue a regulation requiring Class I railroads, railroad carriers that provide intercity rail passenger or commuter rail passenger transportation (passenger railroads), and railroads with inadequate safety performance to develop, submit to the Secretary for review and approval, and implement a railroad safety risk reduction program. The proposed rule would implement this mandate for Class I freight railroads and railroads with inadequate safety performance. A railroad not otherwise required to comply with the proposed rule would also be permitted to voluntarily submit an RRP plan for FRA review and approval. A separate system safety program (SSP) rulemaking would similarly implement this mandate for passenger railroads, and an SSP NPRM was published by FRA on September 7, 2012, 77 FR 55372.
Section 109 of the RSIA specifies that certain risk reduction records obtained by the Secretary are exempt from the public disclosure requirements of the Freedom of Information Act (FOIA). This exemption is subject to two exceptions for disclosure necessary to enforce or carry out any Federal law and disclosure when a record is comprised of facts otherwise available to the public and FRA has determined that disclosure would be consistent with the confidentiality needed for RRPs.
Section 109 of the RSIA also authorizes the Secretary to issue a regulation protecting from discovery and admissibility into evidence in litigation certain information generated for the purpose of developing, implementing, or evaluating an RRP. Currently, the proposed rule would implement sec. 109 with respect to RRPs covered by this proposed part. If an SSP final rule is published before an RRP final rule, however, the information protection provisions contained in the SSP final rule would specifically apply to information generated for an RRP as well.
The Secretary has delegated the responsibility to carry out his responsibilities under both sec. 103 and sec. 109 of RSIA, as well as the general responsibility to conduct rail safety rulemakings, codified at 49 U.S.C. 20103, to the Administrator of FRA.
The primary component of an RRP would be an ongoing risk-based hazard management program (risk-based HMP), supported by a risk-based hazard analysis. A properly implemented risk-based HMP would identify hazards and the associated risks on the railroad's system, compare and prioritize the identified risks for mitigation purposes, and develop mitigation strategies to address the risks. An RRP would also be required to contain the following additional components: a safety performance evaluation; a safety outreach component; and a technology analysis and technology implementation plan (which would consider various technologies that may mitigate or eliminate identified hazards and the associated risks). A railroad would also be required to provide RRP training to employees who have significant responsibility for implementing and supporting the railroad's RRP.
Implementation of an RRP would be supported by a written risk reduction program plan (RRP plan) describing the railroad's processes and procedures for implementing the requirements for an RRP. An RRP plan would not be required to contain the results of a railroad's risk-based hazard analysis or to describe specific mitigation strategies. An RRP plan would also be required to contain certain elements that support the development of an RRP, such as a policy statement, a statement of the railroad's RRP goals, a description of the railroad's system, and an RRP implementation plan.
An RRP could be successful only if a railroad engaged in a robust assessment of the hazards and associated risks on its system. However, a railroad may be reluctant to reveal such hazards and risks if there is the possibility that such information may be used against it in a court proceeding for damages. In sec. 109 of the RSIA, Congress directed FRA to conduct a study to determine if it was in the public interest to withhold certain information, including the railroad's assessment of its safety risks and its statement of mitigation measures, from discovery and admission into evidence in proceedings for damages involving personal injury and wrongful death.
An RRP could affect almost all facets of a railroad's operations. To ensure that all employees directly affected by an RRP have an opportunity to provide input on the development, implementation, and evaluation of a railroad's RRP, a railroad would be required to consult in good faith and use its best efforts to reach agreement with all of its directly affected employees on the contents of the RRP plan and any amendments to the plan. Guidance regarding what constitutes “good faith” and “best efforts” would be included in proposed Appendix B.
FRA anticipates that a final RRP rule would become effective 60 days after the date of publication. However, by statute, the protection of certain information from discovery, admission into evidence, or use for other purposes in a proceeding for damages would not become applicable until one year after the publication of the final rule. Assuming that an SSP final rule could be published before an RRP final rule, FRA would make the SSP information protection provisions applicable to RRP programs as well. This approach would permit a railroad subject to the RRP rule to obtain information protection as soon as possible. A Class I railroad would be required to submit its RRP plan to FRA for review no later than 545 days after the publication date of the final rule. This deadline for submission accounts for the time that must pass before an information protection provision could become applicable. Similarly, railroads with inadequate safety performance or
Within 90 days of receipt of a railroad's RRP plan, FRA would review the plan and determine whether it meets all the process and procedure requirements set forth in the regulation. FRA will not be reviewing a railroad's risk-based hazard analysis or selection of particular mitigation strategies as part of its RRP plan. If, during the review, FRA determines that the railroad's RRP plan does not comply with the requirements, FRA would notify the railroad of the specific points in which the plan is deficient. The railroad would then have 60 days to correct these deficient points and resubmit the plan to FRA. Whenever a railroad decides to amend its RRP, it would be required to submit an amended RRP plan to FRA for approval and provide a cover letter describing the amendments. A similar approval process and timeline would apply whenever a railroad amends its RRP plan. A railroad should not begin implementing an RRP plan before obtaining FRA approval, as the information protection provisions proposed in this NPRM would not apply to any risk reduction information that was not compiled or collected pursuant to an FRA-approved RRP plan.
The costs for this proposed regulation basically stem from the requirements for each railroad to which this rule would be applicable to have a fully developed and implemented RRP that is supported by an RRP plan. The primary costs come from the development of an ongoing risk-based HMP, the ongoing evaluation of safety performance, and the safety outreach component of the RRP. In addition, there are costs for the development of a technology implementation plan, the consultation process, and internal assessments.
The total cost for this proposed regulation is $18.6 million, undiscounted. The discounted costs over 10 years are $12.7 million, using a 7 percent discount rate, and $15.7 million, using a 3 percent discount rate.
The proposed rule is expected to improve railroad safety on Class I freight railroads by ensuring that railroad accidents/incidents, associated casualties, other railroad-related incidents and workplace injuries decrease through the process of identifying hazards, mitigating the risks associated with those hazards, and decreasing unsafe work practices. Decreases in unsafe behaviors or hazards create a decrease in railroad-related incidents and casualties. The sections of the proposed RRP regulation that contribute most to the potential benefits include improved or more robust safety cultures, hazard identification and risk-based hazard management, allying technology with risk reduction, systemic evaluation of program and mitigation strategy effectiveness, and the protection of information provision in § 271.11.
FRA has performed a break-even analysis for this proposed rule. In this break-even analysis, FRA has estimated the amount of investment (capital expenditure) savings or the decreases in costs stemming from railroad-related incidents (and their associated casualties) for Class I railroads that the proposed rule would need to break even. FRA has found that only a very small improvement in either safety or investment is sufficient to make the proposed rule break-even. The proposed rule would break even if railroad investments improve by less than .006% (6 thousandths of a percent). FRA believes that such an improvement would quite likely result from the adoption and implementation of RRPs by Class I railroads, which would lead to reductions in the (1) number of railroad accidents/incidents and employee injuries; (2) other railroad incidents and related casualties; (3) employee absenteeism; and (4) employee discipline actions.
The following abbreviations are used in this preamble and are collected here for the convenience of the reader:
Risk reduction is a comprehensive, system-oriented approach to improving safety by which an organization formally identifies and analyzes applicable hazards and takes action to mitigate, if not eliminate, the risks associated with those hazards. It provides a railroad with a set of decision making processes and procedures that can help it plan, organize, direct, and control its business activities in a way that enhances safety and promotes compliance with regulatory standards. As such, risk reduction is a form of safety management system, which is a term generally referring to a comprehensive, process-oriented approach to managing safety throughout an organization.
The principles and processes of risk reduction are based on those of safety management systems developed to assure high safety performance in various industries, including aviation, passenger railroads, the nuclear industry, and other industries with the potential for catastrophic accidents. Safety management systems have evolved through experience to include a multitude of equally important elements without which the organization's safety does not reliably improve. For ease of understanding, these elements are typically grouped into larger descriptive categories. For safety management systems, these descriptive categories include: (1) An organization-wide safety policy; (2) formal methods for identifying hazards, and for prioritizing and mitigating risks associated with those hazards; (3) data collection, data analysis, and evaluation processes to determine the effectiveness of mitigation strategies and to identify emerging hazards; and (4) outreach, education, and promotion of an improved safety culture within the organization.
The requirements of the proposed RRP rule provide a framework for reducing safety risk. While each railroad subject to the proposed rule would be required to develop all required components, the scope and complexity
Risk reduction, as a type of safety management system, is not a new concept to FRA. Specifically, FRA has previously worked with passenger railroads to implement system safety programs (SSP), and has published a separate SSP NPRM for passenger railroads.
In 1996, FRA issued Emergency Order No. 20, Notice No. 1 (EO 20), which required, among other things, commuter and intercity passenger railroads to promptly develop interim system safety plans addressing the safety of operations that permit passengers to occupy the leading car in a train.
FRA has also developed a “Collision Hazard Analysis Guide” to assist passenger rail operators in conducting collision hazard assessments.
From its experience with the APTA program and the “Collision Hazard Analysis Guide,” FRA has gained substantial knowledge regarding the best methods for developing, implementing, and evaluating SSPs for passenger railroads. This experience is reflected in a recently-published NPRM, developed with the assistance of the Railroad Safety Advisory Committee (RSAC), that would require passenger railroads to develop and implement FRA-approved SSPs.
Several Federal agencies have established or proposed safety management system requirements or guidance for regulated entities. For example, the Federal Transit Administration (FTA) has established regulations at 49 CFR part 659 (Rail Fixed Guideway Systems; State Safety Oversight) that implement a Congressional mandate for a program requiring State-conducted oversight of the safety and security of rail fixed guideway systems that are not regulated by FRA.
The Federal Aviation Administration (FAA) has also published an NPRM proposing to require each certificate holder operating under 14 CFR part 121 to develop and implement a safety management system (SMS).
The U.S. Department of Defense (DoD) has also set forth guidelines for a system safety program. In July 1969, DoD published “System Safety Program Plan Requirements” (MIL–STD–882). MIL–STD–882 is DoD's standard practice for system safety, with the most recent version, MIL–STD–882E, published on May 11, 2012. DoD, MIL–STD–882E, “Department of Defense Standard Practice System Safety” (May 11, 2012). MIL–STD–882 is used by many industries in the U.S., and internationally, and could be useful to a railroad (particularly a smaller railroad with inadequate safety performance) when trying to determine which methods to use to comply with this RRP rule. In fact, MIL–STD–882 is cited in FRA's safety regulations for railroad passenger equipment, 49 CFR part 238, as an example of a formal safety methodology to use in complying with certain analysis requirements in that rule.
FRA also has established two voluntary, independent programs that exemplify the philosophy of risk reduction: The Confidential Close Call Reporting System (C3RS) and the Clear Signal for Action (CSA) program. FRA has developed these programs in the
The FRA C3RS program includes: (1) Voluntary confidential reporting of close-call events by employees; (2) root-cause-analysis problem solving by a Peer Review Team composed of labor, management, and FRA; (3) identification and implementation of corrective actions; (4) tracking the results of change; and (5) reporting the results of change to employees. Confidential reporting and joint labor-management-FRA root-cause problem solving are the most innovative of these characteristics for the railroad industry. Demonstration pilot sites for FRA C3RS are at the Union Pacific Railroad Company (UP), New Jersey Transit, Strasburg Railroad, and the National Railroad Passenger Corporation (Amtrak). An evaluation of one of these demonstration pilot sites indicated that a C3RS program demonstrably resulted in increased safety.
FRA has also implemented the CSA program, another human factors-based solution shown to improve safety. The CSA Program includes: (1) Voluntary peer-to-peer feedback in the work environment on both safe and risky behaviors and conditions (data associated with the program are owned by labor and not disclosed to management); (2) labor Steering Committee root cause analysis and the development of behavior and condition-related corrective actions; (3) Steering Committee implementation of behavior-related corrective actions; (4) joint labor-management Barrier Removal Team refining condition-related corrective actions and implementation; (5) tracking the results of the change; and (6) reporting the results of change to employees. Peer-to-peer feedback on safe and risky behaviors and conditions, root cause analysis, and cooperation between labor and management in corrective actions are the most innovative of these characteristics for the railroad industry. FRA considers the CSA program ready for broad implementation across the industry, as the completion of three demonstration pilots has demonstrated its applicability in diverse railroad work settings. One demonstration pilot covered Amtrak baggage handlers; a second covered UP yard crews; and a third covered UP road crews.
The C3RS and CSA programs embody many of the concepts and principles found in an RRP: Proactive identification of hazards and risks; analysis of those hazards and risks; and implementation of appropriate action to eliminate or mitigate the hazards and risks. While FRA does not intend to require any railroad to implement a C3RS or CSA program as part of its RRP, FRA believes that these types of programs would be useful for a railroad developing an RRP, and encourages railroads to include such programs as part of their RRPs. FRA seeks comment on the extent to which these programs might be useful in the development of an RRP or as a component of an RRP.
In sec. 103 of the RSIA, Congress directed the Secretary to issue a regulation requiring certain railroads to develop, submit to the Secretary for review and approval, and implement a railroad safety risk reduction program.
(1) Class I railroads;
(2) Railroad carriers with inadequate safety performance, as determined by the Secretary; and
(3) Railroad carriers that provide intercity rail passenger or commuter rail passenger transportation (passenger railroads).
The proposed rule would implement this railroad safety risk reduction mandate for Class I freight railroads and railroads with inadequate safety performance.
The proposed rule would also respond to sec. 109 of the RSIA, which addresses the protection of information in railroad safety risk analyses.
A separate SSP rulemaking, as discussed above, would implement the sec. 103 and sec. 109 RSIA mandates for passenger railroads.
Some overlap would exist between certain components of the proposed SSP and RRP rules. Most significantly, the RRP and SSP rules would contain essentially identical provisions implementing the consultation requirements of sec. 103(g) and responding to the information protection study mandated under sec. 109 of the RSIA. There was significant discussion during the RRP and SSP RSAC processes on how to implement these provisions of the RSIA. FRA worked with the General Passenger Safety Task Force's System Safety Task Group and the RRP Working Group to receive input regarding how information protection and the consultation process should be addressed, with the understanding that the same language would be included in both the SSP and RRP NPRMs for review and comment. The consultation and information protection provisions proposed in this NPRM, therefore, are essentially identical to those proposed in the 2012 SSP NPRM.
In response to the SSP NPRM, FRA has received a number of comments addressing the proposed consultation and information protection provisions. While FRA intends to discuss these comments further as part of the ongoing RRP and SSP RSAC processes, FRA has decided not to respond to the SSP comments on the consultation and information protection provisions in this NPRM. Any comments submitted to the SSP NPRM regarding these provisions, however, will be considered applicable to the RRP NPRM as well and will be considered before publication of an RRP final rule. Ultimately, FRA anticipates that the consultation and information protection provisions of the SSP and RRP rules will be essentially identical.
Furthermore, FRA intends to make any information protection provision in a final SSP rule applicable to any railroad safety risk reduction program required under chapter II of subtitle B of title 49, Code of Federal Regulations, such as an RRP. When Congress granted FRA authority to issue a rule based upon the results of the study, it also specified that any such rule could not become effective until one year after its adoption.
In addition to the proposed consultation and information protection sections, some overlap would exist between various other RRP and SSP provisions (
Section 103(f) of the RSIA states that an RRP must include a fatigue management plan meeting certain requirements.
On December 8, 2011, the RSAC voted to establish a Fatigue Management Plans Working Group (FMP Working Group). The purpose of the FMP Working Group is to provide “advice regarding the development of implementing regulations for Fatigue Management Plans and their deployment under the Rail Safety Improvement Act of 2008.” “Railroad Safety Advisory Committee Task Statement: Fatigue Management Plans,” Task No.: 11–03, Dec. 8, 2011. (A copy of this statement will be placed in the public docket for this RRP rulemaking.) Specifically, the FMP Working Group is tasked to: “review the mandates and objectives of the [RSIA] related to the development of Fatigue Management Plans, determine how medical conditions that affect alertness and fatigue will be incorporated into Fatigue Management Plans, review available data on existing alertness strategies, consider the role of innovative scheduling practices in the reduction of employee fatigue, and review the existing data on fatigue countermeasures.”
FRA notes that the RRP Working Group recommended including a placeholder in the proposed RRP rule text that would require a railroad, as part of its RRP, to develop a fatigue management plan no later than three years after the effective date of the final rule, or three years after commencing operations, whichever is later. This placeholder did not contain any additional substantive requirements, however, and was intended merely to be an acknowledgement of the RSIA fatigue management plan mandate. FRA has elected to not include this placeholder; however, because it may create confusion regarding the separate FMP Working Group process and the ongoing fatigue management plans rulemaking. Rather, FRA will address the substantive requirements of the fatigue management plan mandate in the separate rulemaking that FRA has initiated. FRA would approve an RRP plan without the fatigue management plan component prior to the issuance of fatigue management final rule, provided the plan met all other applicable RRP requirements. Until the fatigue management plan final rule is effective, a railroad could use the processes and procedures in its RRP to address fatigue-related issues.
On December 8, 2010, FRA published an ANPRM soliciting public comment on how FRA could best develop and implement a risk reduction regulation based upon the requirements of the RSIA.
FRA received 11 written comments in response to the ANPRM from a variety of entities, including railroads, industry organizations, non-profit employee labor organizations, a consulting firm, and a private citizen.
Many of the ANPRM commenters identified similar issues or questions. Two commenters recommended that FRA develop a performance-based risk reduction rule, in order to encourage railroads to find flexible and creative solutions to safety risks. These commenters also stressed the importance of protecting risk reduction information from disclosure and use in litigation. Other commenters requested clarification on the relationship between risk reduction and system safety, or expressed concerns related to how a risk reduction rule would address issues such as contractors or training requirements. Commenters also provided recommendations on how FRA should identify railroads with inadequate safety performance. Several labor organizations also submitted a joint comment strongly emphasizing the importance of the sec. 103(g) consultation requirements. Issues such as the above were subsequently discussed at length with both industry and labor organization representatives during the RSAC process.
Following publication of the ANPRM and close of the comment period, FRA also held two public hearings that provided interested persons an opportunity to discuss the development of a risk reduction regulation in response to the ANPRM. Interested persons were invited to present oral statements and to proffer information and views at the hearings. The first public hearing was held on July 19, 2011 in Chicago, IL, and the second public hearing was held on July 21, 2011 in Washington, DC.
Following the close of the ANPRM comment period and the public hearings, FRA decided that additional input regarding the development of a risk reduction regulation would be beneficial. FRA therefore placed the risk reduction rulemaking into a modified RSAC process, which discussed many of the questions and concerns that appeared in the ANPRM and in responses thereto.
FRA proposed Task No. 11–04 to the RSAC on December 8, 2011. The RSAC accepted the task, and formed the Risk Reduction Program (RRP) Working Group (Working Group) for the purpose of developing and implementing RRP under the RSIA. The Working Group is comprised of members from the following organizations:
• AAR;
• Amtrak;
• APTA;
• ASLRRA;
• BLET;
• BMWED;
• BRS;
• FRA;
• Long Island Rail Road (LIRR);
• Metro-North Commuter Railroad Company (Metro-North);
• National Association of Railroad Passengers (NARP);
• National Railroad Construction and Maintenance Association;
• National Transportation Safety Board (NTSB);
• SEPTA;
• TRA; and
• UTU.
The Working Group completed its work after four in-person meetings and several conference calls. The first meeting of the Working Group took place on January 31 and February 1, 2012, in Cambridge, Massachusetts. At that meeting the group discussed the appropriate scope of a risk reduction regulation and heard several presentations from stakeholders regarding the requirements of the RSIA and current risk reduction practices on railroads. Subsequent meetings were held in Washington, DC on April 10, 2012; May 16, 2012; and June 13, 2012.
At the April, May, and June meetings, the group discussed a document entitled “Recommendations to the Administrator,” which provided FRA advice to consider in developing a risk reduction rule. The document was updated after each meeting to reflect the Working Group's discussions.
At the conclusion of the Working Group's last meeting on June 13, 2012, the Working Group obtained tentative agreement on the “Recommendations to the Administrator” document. This document did not include advice regarding railroads with inadequate safety performance, as this was developed further during subsequent conference calls. The document was also not put before the full RSAC for vote, and therefore does not represent formal RSAC consensus. FRA utilized the comments and documents from the Working Group when developing the proposed rule text, although it has streamlined and reorganized suggestions from the Working Group in order to make the rule's requirements as clear as possible. FRA has also attempted to note in this NPRM areas in which the proposed rule text substantively differs from the Working Group's suggestions. Ultimately, however, language contained in this proposed rule reflects
As previously discussed, sec. 103 of the RSIA directs FRA to require railroads with inadequate safety performance (as determined by FRA) to develop and implement an RRP. FRA discussed potential definitions of inadequate safety performance during the April, May, and June 2012 RSAC Working Group meetings, and also conducted several conference calls discussing the issue after the final June 2012 Working Group meeting. These meetings and conference calls developed and refined a general approach to determining inadequate safety performance, and discussed several specific concerns of the ASLRRA, whose member railroads are those most likely to be affected by FRA's approach. For example, participants in the conference calls expressed concerns regarding the need for consistent nationwide application of FRA's approach to determining inadequate safety performance. FRA achieved tentative agreement on the proposed approach, but did not seek consensus.
As a result of these discussions and tentative agreement, FRA developed an annual process, involving two phases, for determining whether a railroad's safety performance may be inadequate. This process would only evaluate railroads that were not already complying with an SSP or RRP rule, including voluntarily-compliant railroads. In the first phase, FRA would conduct a statistical quantitative analysis to determine a railroad's safety performance index, using the three most recent full calendar years' historical data maintained by FRA. The quantitative analysis would utilize the following four factors: (1) Fatalities; (2) FRA reportable injury/illness rate; (3) FRA reportable accident/incident rate; and (4) FRA violation rate. Railroads that had either a fatality, or that were at or above the 95th percentile in at least two of the three other factors (FRA reportable injury/illness, FRA reportable accident/incident, or FRA violation rate), would be further examined in a qualitative assessment. FRA would notify the railroads identified for further examination in a qualitative assessment, and would give them an opportunity to comment and provide evidence explaining why they should or should not be required to develop an RRP. A railroad would also be required to inform its employees that it had received the notification from FRA and that employees could submit confidential comments on the matter directly to FRA. For the second phase of its analysis, FRA would consider the comments from the railroads, and any comments from the railroad's employees, as well as any other pertinent evidence, in a qualitative review of the railroad's safety performance. Following the qualitative review, FRA would notify the affected railroads regarding whether or not they must develop an RRP.
Based on Working Group input and results from the C3RS and CSA projects, FRA also determined appropriate timeframes for compliance, and deadlines for various notices and submissions. A railroad with inadequate safety performance would have to comply with this part 271 for a period of at least five years, after which it could petition FRA for removal from the program. These provisions are discussed further in the section-by-section analysis.
During discussions, the RSAC Working Group advised FRA to allow a railroad with inadequate safety performance to choose to establish either an RRP in compliance with this proposed part 271 or an SSP in compliance with proposed part 270. For reasons discussed further in the section-by-section analysis for § 271.13, FRA has not included this suggestion in the NPRM, but could ultimately include it in a final rule.
Section 109 of the RSIA (codified at 49 U.S.C. 20118–20119) authorizes FRA to issue a rule protecting risk analysis information generated by railroads. These provisions would apply to information generated by passenger railroads pursuant to the proposed system safety rulemaking and to any railroad safety risk reduction programs required by FRA for Class I railroads and railroads with inadequate safety performance.
As previously discussed, the information protection provisions proposed in this NPRM are essentially identical to provisions in the proposed SSP rule, as there was significant discussion during the SSP and RRP RSAC processes on how to implement this provision of the RSIA. FRA worked with the System Safety Task Group and the Risk Reduction Program Working Group to receive input regarding how information protection should be addressed, with the understanding that the same language would be included in both the SSP and RRP NPRMs for review and comment. While the language proposed in this NPRM does not respond to comments already received in response to the SSP NPRM, FRA will consider comments submitted to both the SSP and RRP NPRMs regarding the information protection provisions when developing an RRP final rule.
In sec. 109 of the RSIA (codified at 49 U.S.C. 20118–20119), Congress determined that for risk reduction programs to be effective, the risk analyses must be shielded from production in response to Freedom of Information Act (FOIA) requests.
Section 109(a) of the RSIA specifically provides that a record obtained by FRA pursuant to a provision, regulation, or order related to a risk reduction program or pilot program is exempt from disclosure under FOIA. The term “record” includes, but is not limited to, “a railroad carrier's analysis of its safety risks and its statement of the mitigation measures it has identified with which to address those risks.”
FRA believes that sec. 109 of the RSIA qualifies as an Exemption 3 statute under FOIA. FRA therefore believes that railroad risk reduction records in its possession would generally be exempted from mandatory disclosure under FOIA, unless one of two exceptions provided by the RSIA would apply.
The RSIA also addressed the disclosure and use of risk analysis information in litigation. Section 109 directed FRA to conduct a study to determine whether it was in the public interest to withhold from discovery or admission into evidence in a Federal or State court proceeding for damages involving personal injury or wrongful death against a carrier any information (including a railroad's analysis of its safety risks and its statement of the mitigation measures with which it will address those risks) compiled or collected for the purpose of evaluating, planning, or implementing a risk reduction program.
FRA contracted with a law firm, Baker Botts L.L.P., to conduct the study on FRA's behalf. Various documents related to the study are available for review in public docket number FRA–2011–0025, which can be accessed online at
On October 21, 2011, the contracted law firm produced a final report on the study.
In response to the final study report, this NPRM is proposing to protect any information compiled or collected solely for the purpose of developing, implementing or evaluating an RRP from discovery, admission into evidence, or consideration for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, and property damage. The information protected would include a railroad's identification of its safety hazards, analysis of its safety risks, and its statement of the mitigation measures with which it would address those risks and could be in the following forms or other forms: Plans, reports, documents, surveys, schedules, lists, or data. Additional specifics regarding this proposal will be discussed in the section-by-section analysis of this NPRM.
Section 103(g)(1) of the RSIA states that a railroad required to establish a safety risk reduction program must “consult with, employ good faith and use its best efforts to reach agreement with, all of its directly affected employees, including any non-profit employee labor organization representing a class or craft of directly affected employees of the railroad carrier, on the contents of the safety risk reduction program.” 49 U.S.C. 20156(g)(1). Section 103(g)(2) of the RSIA further provides that if a “railroad carrier and its directly affected employees, including any nonprofit employee labor organization representing a class or craft of directly affected employees of the railroad carrier, cannot reach consensus on the proposed contents of the plan, then directly affected employees and such organizations may file a statement with the Secretary explaining their views on the plan on which consensus was not reached.” 49 U.S.C. 20156(g)(2). The RSIA requires FRA to consider these views during review and approval of a railroad's RRP plan.
FRA is proposing to implement this mandate by requiring each railroad required to establish an RRP to consult with its directly affected employees (using good faith and best efforts) on the contents of its RRP plan. A railroad would have to include a consultation statement in its submitted plan describing how it consulted with its employees. If a railroad and its employees were not able to reach consensus, directly affected employees could file a statement with FRA describing their views on the plan. Additional specifics regarding this proposal are discussed in the section-by-section analysis of this NPRM for proposed §§ 271.207 and 271.209.
As with this NPRM's information protection provisions, the proposed language is essentially identical to provisions proposed in the 2012 SSP NPRM, since there was significant discussion during the SSP and RRP RSAC processes on how to implement this provision of the RSIA. FRA worked with the System Safety Task Group to receive input regarding how the consultation process should be addressed, with the understanding that the same language would be included in both the SSP and RRP NPRMs for review and comment. While the language proposed in this NPRM does not respond to comments already
FRA proposes to add a new part 271 to chapter 49 of the CFR. Part 271 would satisfy the RSIA requirements regarding safety risk reduction programs for Class I railroads and railroads with inadequate safety performance.
The proposed rule would require a risk reduction program that is a somewhat streamlined version of a safety management system. To adhere as closely as possible to the requirements of the RSIA, FRA has not proposed to include a number of program and plan components that are common to many safety management systems. For example, FRA is not proposing to include a requirement for a description of the railroad management and organizational structure (including charts or other visual representations), but instead asks for a less specific system description. The RRP plan is also not required to contain a description of the processes and procedures used for maintenance and repair of infrastructure and equipment, rules compliance and procedures review, workplace safety, workplace safety assurance, or public safety outreach. FRA is also not proposing to require an RRP to establish processes ensuring that safety concerns are addressed during the procurement process. As additional examples, a full safety management system would also require: (1) Development and implementation of processes to manage emergencies; (2) processes and procedures for the railroad to manage changes that have a significant effect on railroad safety; (3) processes and permissions for making configuration changes to the railroad; and (4) safety certification prior to initiation of operations or implementation of major projects. The proposed RRP rule does not currently include such requirements. FRA is specifically seeking public comments regarding whether any or all of these elements should be considered essential in order for RRP to function effectively, and requirements for such additional elements may be included in the final rule.
The proposed rule contains various filing and communication requirements. FRA is generally requesting public comment on whether any provision imposing a filing or communication requirement should permit a railroad to comply with that requirement electronically.
Subpart A of the proposed rule would contain general provisions, including a formal statement of the rule's purpose and scope, and provisions limiting the discovery and admissibility of certain RRP information.
Proposed § 271.1 would set forth the purpose and scope of the proposed rule. Paragraph (a) would state that the purpose of this part is to improve railroad safety through structured, proactive processes and procedures developed and implemented by railroads. The proposed rule would require each affected railroad to establish an RRP that systematically evaluates railroad safety hazards on its system and manages the risks generated by those hazards in order to reduce the number and rates of railroad accidents/incidents, injuries, and fatalities. The proposed rule would not require an RRP to address every safety hazard on a railroad's system. For example, rather than identifying every safety hazard on its system, a large railroad could take a more focused and project-specific view of safety hazard identification.
Paragraph (b) would state that the proposed rule prescribes minimum Federal safety standards for the preparation, adoption, and implementation of RRPs. A railroad would not be restricted from adopting and enforcing additional or more stringent requirements that are not inconsistent with a rule arising from this proposed rule.
Paragraph (c) would state that the proposed rule protects information generated solely for the purpose of developing, implementing, or evaluating an RRP. FRA may decide not to include this provision in the final rule if an SSP final rule is published significantly before an RRP final rule, so that the SSP information protection provision could be made applicable to RRPs.
Paragraph (d) would contain a clarifying statement indicating that RRPs are not intended to address certain areas of employee safety. While FRA is always concerned with the safety of railroad employees performing their duties, employee safety in maintenance and servicing areas generally falls within the jurisdiction of the United States Department of Labor's Occupational Safety and Health Administration (OSHA). It is not FRA's intent in this rule to displace OSHA's jurisdiction with regard to the safety of employees while performing inspections, tests, and maintenance, except where FRA has already addressed workplace safety issues, such as blue signal protection in 49 CFR part 218. Similar provisions are found in other rules, clarifying that FRA does not intend to displace OSHA's jurisdiction over certain subject matters.
Similarly, while FRA is concerned with environmental damage that could result from the violation of Federal railroad safety laws and regulations, FRA does not intend this rule to address environmental hazards and risks that are unrelated to railroad safety and that would fall within the jurisdiction of the Environmental Protection Agency (EPA). For example, FRA would not expect a railroad's RRP to address environmental hazards regarding particulate emissions from locomotives that otherwise comply with FRA's safety regulations. FRA seeks public comment on whether it is necessary for this section to contain a clarifying statement regarding any such subject matter that this proposed part may affect, whether potentially implicating the jurisdiction of OSHA, EPA, or another agency of the Federal government.
The RSIA directs FRA to require each Class I railroad, railroad carrier that has inadequate safety performance, and railroad that provides intercity rail passenger or commuter rail passenger transportation to establish a railroad safety risk reduction program.
Paragraph (a) would state that, except as provided in paragraph (b) of this section, this part applies to Class I railroads, railroads determined to have inadequate safety performance pursuant to proposed § 271.13, and railroads that voluntarily comply with the part 271 requirements pursuant to § 271.15 (voluntarily-compliant railroads).
FRA proposes to exempt certain railroads from the proposed rule's applicability. The applicability exemptions proposed in paragraphs (b)(1) through (4) are general exemptions found in many FRA regulations. The first exemption, proposed in paragraph (b)(1), would apply to rapid transit operations in an urban area that are not connected to the general railroad system of transportation. Paragraph (b)(1) is intended merely to clarify the circumstances under which rapid transit operations would not be subject to FRA jurisdiction under the proposed rule. It should be noted, however, that some rapid transit type operations, given their links to the general system, are within FRA's jurisdiction, and FRA would specifically intend for part 271 to apply to those rapid transit type operations.
Paragraph (b)(2) proposes an exemption for operations commonly described as tourist, scenic, historic, or excursion service, whether on or off the general railroad system of transportation. Tourist, scenic, historic, or excursion rail operations are defined by proposed § 271.5, and this exemption is consistent with other FRA regulations.
Paragraph (b)(3) would clarify that the requirements of the proposed rule do not apply to the operation of private passenger train cars, including business or office cars and circus train cars. While FRA believes that a private passenger car operation should be held to the same basic level of safety as other passenger train operations, such operations were not specifically identified in the RSIA mandate, and FRA is taking into account the potential burden that would be imposed by requiring private passenger car owners and operators to conform to the requirements of this part. FRA is also proposing to exempt private passenger train cars from the SSP rule, which would implement the RSIA mandate for passenger railroads.
Paragraph (b)(4) proposes an exemption for railroads that operate only on track inside an installation that is not part of the general railroad system of transportation (
Paragraph (b)(5) would exempt from the proposed RRP rule any commuter or intercity passenger railroad that is already subject to an FRA SSP rule. As RRP and SSP rules would both implement the RSIA mandate for railroad safety risk reduction programs, FRA believes that requiring a commuter or intercity passenger railroad to maintain two separate safety risk reduction programs would be an unnecessary and duplicative burden. FRA is therefore proposing to exempt commuter or intercity passenger railroads required to comply with the SSP rule from the RRP rule's requirements. Railroads should note that this proposal would not exempt freight operations conducted by another railroad on the same track as a commuter or intercity passenger railroad. A railroad with both freight and passenger operations would be required to account for its freight operations in its SSP. FRA is specifically requesting public comment on this proposal and may elect in the final rule to require railroads with both freight and passenger operations to implement both an RRP and SSP, or to implement an RRP accounting for passenger operations.
Proposed § 271.5 would contain a set of definitions clarifying the meaning of important terms used in the proposed rule. The proposed definitions are carefully worded in an attempt to minimize potential misinterpretation of the regulations. FRA requests public comment regarding the terms defined in this section and whether other terms should also be defined.
“Accident/incident” means (1) any impact between railroad on-track equipment and a highway user (including automobiles, buses, trucks, motorcycles, bicycles, farm vehicles, pedestrians, and all other modes of surface transportation motorized and un-motorized, at a highway-rail grade crossing); (2) any collision, derailment, fire, explosion, act of God, or other event involving operation of railroad on-track equipment (standing or moving) that results in reportable damages greater than the current reporting threshold identified in 49 CFR part 225 to railroad on-track equipment, signals, track, track structures, and roadbed; and (3) each death, injury, or occupational illness that is a new case and meets the general reporting criteria listed in 49 CFR 225.19(d)(1) through (6) if any event or exposure arising from the operation of a railroad is a discernible cause of a significant aggravation to a pre-existing injury or illness. Regarding item (3), the event or exposure arising from the operation of a railroad need only be one of the discernible causes; it need not be the sole or predominant cause. The proposed definition is identical to the definition for “accident/incident” contained in FRA's accident/incident reporting regulations at 49 CFR part 225.
“Administrator” means the Administrator of the Federal Railroad Administration or his or her delegate.
“FRA” means the Federal Railroad Administration.
“FRA Associate Administrator” means the Associate Administrator for Railroad Safety/Chief Safety Officer, Federal Railroad Administration, or the Associate Administrator's delegate.
“Fully implemented” means that all RRP elements, as described in an RRP plan, have been established and applied to the safety management of the railroad.
“Hazard” means any real or potential condition that can cause injury, illness, or death; damage to or loss of a system, equipment, or property; or damage to the environment. Because the proposed definition would be limited to hazards
“Inadequate safety performance” means safety performance that FRA has determined to be inadequate based on the analysis described in proposed § 271.13.
“Mitigation strategy” means an action or program to reduce or eliminate the risk generated by a hazard.
“Person” means an entity of any type covered under 1 U.S.C. 1, including, but not limited to, the following: A railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor or subcontractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor or subcontractor.
“Pilot project” means a limited scope project used to determine whether quantitative proof suggests that a particular system or mitigation strategy has potential to succeed on a full-scale basis.
“Plant railroad” means a type of operation that has traditionally been excluded from the application of FRA regulations because it is not part of the general railroad system of transportation. Under § 271.3, FRA has chosen to exempt plant railroads, as defined in this proposed section, from the proposed rule. In the past, FRA has not defined the term “plant railroad” in other regulations that it has issued because FRA assumed that its “Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws, The Extent and Exercise of FRA's Safety Jurisdiction”, 49 CFR part 209, Appendix A (FRA's Policy Statement or the Policy Statement), provided sufficient clarification as to the definition of that term. However, it has come to FRA's attention that certain rail operations believed that they met the characteristics of a plant railroad, as set forth in the Policy Statement, when, in fact, their rail operations were part of the general railroad system of transportation (general system) and therefore did not meet the definition of a plant railroad. FRA would like to avoid any confusion as to what types of rail operations qualify as plant railroads. FRA would also like to save interested persons the time and effort needed to cross-reference and review FRA's Policy Statement to determine whether a certain operation qualifies as a plant railroad. Consequently, FRA has decided to define the term “plant railroad” in this part 271.
The proposed definition would clarify that when an entity operates a locomotive to move rail cars in service for other entities, rather than solely for its own purposes or industrial processes, the services become public in nature. Such public services represent the interchange of goods, which characterizes operation on the general system. As a result, even if a plant railroad moves rail cars for entities other than itself
The proposed definition of the term “plant railroad” is consistent with FRA's longstanding policy that it will exercise its safety jurisdiction over a rail operation that moves rail cars for entities other than itself because those movements bring the track over which the entity is operating into the general system.
“Positive train control” means a system designed to prevent train-to-train collisions, overspeed derailments, incursions into established work zone limits, and the movement of a train through a switch left in the wrong position, as described in subpart I of 49 CFR part 236.
“Railroad” means: (1) Any form of non-highway ground transportation that runs on rails or electromagnetic guideways, including—
(i) Commuter or other short-haul rail passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979; and
(ii) High speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads, but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation; and
(2) A person or organization that provides railroad transportation, whether directly or by contracting out operation of the railroad to another person.
The definition of “railroad” is based upon 49 U.S.C. 20102(1) and (2), and encompasses any person providing railroad transportation directly or indirectly, including a commuter rail authority that provides railroad transportation by contracting out the operation of the railroad to another person, as well as any form of non-highway ground transportation that runs on rails or electromagnetic guideways, but excludes urban rapid transit not connected to the general system.
“Risk” means the combination of the probability (or frequency of occurrence) and the consequence (or severity) of a hazard.
“Risk-based HMP” means a risk-based hazard management program.
“Risk reduction” means the formal, top-down, organization-wide approach to managing safety risk and assuring the effectiveness of safety risk mitigation strategies. It includes systematic procedures, practices, and policies for the management of safety risk.
“RRP” means a Risk Reduction Program.
“RRP plan” means a Risk Reduction Program plan.
“Safety culture” means the shared values, actions, and behaviors that demonstrate a commitment to safety over competing goals and demands. FRA is proposing this definition because the RSIA requires a railroad's RRP to address safety culture.
The proposed “safety culture” definition was discussed in the section-by-section analysis of the SSP NPRM.
FRA acknowledges that this proposed definition is different than the one recommended by the RRP Working Group, and that railroads may have a different understanding of what constitutes safety culture. During RRP Working Group discussions, for example, some participants expressed the concern that the language “over competing goals and demands” would require a railroad to make safety the ultimate priority to the exclusion of all other concerns, without providing flexibility for a railroad to balance the concerns of profit and efficiency. FRA believes it is important, however, to utilize in this rule a definition that has been formulated by the DOT Safety Council. Furthermore, the proposed definition would not require a railroad to always prioritize safety concerns over competing goals and demands (
“Safety performance” means a realized or actual safety accomplishment relative to stated safety objectives.
“Safety outreach” means the communication of safety information to support the implementation of an RRP throughout a railroad.
“Senior management” means personnel at the highest level of a railroad's management who are responsible for making major policy decisions and long-term business plans regarding the operation of the railroad.
“STB” means the Surface Transportation Board of the United States.
“Tourist, scenic, historic, or excursion operations” means railroad operations that carry passengers, often using antiquated equipment, with the conveyance of the passengers to a particular destination not being the principal purpose. Train movements of new passenger equipment for demonstration purposes are not tourist, scenic, historic, or excursion operations. This definition is consistent with FRA's other regulations.
The RSAC RRP Working Group recommended including definitions for the following terms: safety performance index and safety performance threshold. FRA determined that these definitions did not provide any additional clarity and were unnecessary. FRA requests public comment regarding whether any of these definitions or any other definitions should be added to the final rule.
Proposed § 271.7 would explain the process for requesting a waiver from a provision of the rule. FRA has historically entertained waiver petitions from parties affected by an FRA regulation. In reviewing such requests, FRA conducts investigations to determine if a deviation from the general regulatory criteria is in the public interest and can be made without compromising or diminishing railroad safety.
The rules governing the FRA waiver process are found in 49 CFR part 211. In general, these rules state that after a petition for a waiver is received by FRA, a notice of the waiver request is published in the
Proposed § 271.9 would contain provisions regarding the proposed penalties for failure to comply with the proposed rule and the responsibility for compliance.
Paragraph (a) would identify the civil penalties that FRA may impose upon any person that violates or causes a violation of any requirement of the proposed rule. These penalties would be authorized by 49 U.S.C. 20156(h), 21301, 21302, and 21304. The proposed penalty provision parallels penalty provisions included in numerous other safety regulations issued by FRA. Essentially, any person that violates any requirement of the rule arising from this rulemaking or causes the violation of any such requirement would be subject to a civil penalty of at least $650 and not more than $25,000 per violation. Civil penalties would be assessed against individuals only for willful violations. Where a grossly negligent violation or a pattern of repeated violations creates an imminent hazard of death or injury to individuals, or causes death or injury, a penalty not to exceed $105,000 per violation could be assessed. In addition, each day a violation continues would constitute a separate offense. Maximum penalties of $25,000 and $105,000 are required by the Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101–410, 28 U.S.C. 2461, note, as amended by the Debt Collection Improvement Act of 1996, Public Law 104–134, 110 Stat. 1321–373 (April 26, 1996), which requires each agency to regularly adjust certain civil monetary penalties in an effort to maintain their remedial impact and promote compliance with the law. Furthermore, a person could be subject to criminal penalties under 49 U.S.C. 21311 for knowingly and willfully falsifying reports required by these regulations. FRA believes that the inclusion of penalty provisions for the failure to comply with the regulations is important in ensuring that compliance is achieved. The proposed rule does not include a schedule of civil penalties, but a final rule would contain such a schedule.
Proposed paragraph (b) would clarify that any person, including but not limited to a railroad, contractor, or subcontractor for a railroad, or a local or state governmental entity that performs any function covered by the proposed rule, must perform that function in accordance with the requirements of part 271.
As discussed in section VI of the preamble, above, an RSIA-mandated study by FRA concluded that it is in the public interest to protect certain information generated by railroads from discovery or admission into evidence in litigation. Section 109 of the RSIA provides FRA with the authority to promulgate a regulation if FRA determines that it is in the public interest, including public safety and the legal rights of persons injured in railroad accidents, to prescribe a rule that addresses the results of the study.
Following the issuance of the study, the RSAC met and reached consensus on recommendations regarding the discovery and admissibility of information for the proposed SSP rule, with the understanding that an identical provision would be included in a proposed RRP rule. RSAC recommended that FRA issue a rule that would protect documents generated solely for the purpose of developing, implementing, or evaluating an RRP from: (1) Discovery, or admissibility into evidence, or considered for other purposes in a Federal or State court proceeding for damages involving property damage, personal injury, or wrongful death; and (2) State discovery rules and sunshine laws that could be used to require the disclosure of such information. As previously discussed in section III.B of the preamble, FRA published an SSP NPRM on September 7, 2012, and the information protection language contained in this RRP NPRM is essentially identical to that proposed by the SSP NPRM.
Also, sec. 109 of the RSIA mandates that the effective date of a rule prescribed pursuant to that section must be one year after the publication of that rule. FRA believes that the public interest considerations for the protections in § 271.11 are the same for the SSP rule for passenger railroads. Therefore, assuming that an SSP final rule might be published before an RRP final rule, FRA would likely make the SSP information protection provisions applicable to RRP programs as well. The effect of this proposal is that the information protection for RRP would become applicable one year after publication of an SSP final rule, permitting a railroad subject to the RRP rule to obtain information protection as soon as possible. FRA requests public comment regarding this approach.
In this § 271.11, FRA proposes discovery and admissibility protections that are based on the study's results and the RSAC recommendations. FRA modeled this proposed section after 23 U.S.C. 409. In sec. 409, Congress enacted statutory protections for certain information compiled or collected pursuant to Federal highway safety or construction programs.
Section 409 was enacted by Congress in response to concerns raised by the States that compliance with the Federal road hazard reporting requirements could reveal certain information that would increase the States' risk of liability. Without confidentiality protections, States feared that their “efforts to identify roads eligible for aid under the Program would increase the risk of liability for accidents that took place at hazardous locations before improvements could be made.”
In
The Court held that sec. 409 protects information actually compiled or collected by any government entity for the purpose of participating in a Federal highway program, but does not protect information that was originally compiled or collected for purposes unrelated to the Federal highway program, even if the information was at some point used for the Federal highway program.
A comparison of the text of sec. 409 with sec. 109, which was added to the U.S. Code by the RSIA, shows that Congress used similar language in both provisions. Given the similar language and concept of the two statutes, and the Supreme Court's expressed acknowledgement of the constitutionality of sec. 409, FRA views sec. 409 as an appropriate model for proposed § 271.11.
FRA proposes that under certain circumstances, information (including plans, reports, documents, surveys, schedules, lists, or data) would not be subject to discovery, admitted into evidence, or considered for other purposes in a Federal or State court proceeding for damages. This information may not be used in such litigation for any purpose when it is compiled or collected solely for the purpose of developing, implementing, or evaluating an RRP, including the railroad's analysis of its safety risks conducted pursuant to proposed § 271.103(b) and any identification of the mitigation measures with which it would address those risks pursuant to proposed § 271.103(c). Proposed § 271.11(a) applies to information that may not be in the Federal government's possession; rather, it may be information the railroad has as part of its RRP but would not be required to provide to the Federal government under this part.
The RSIA identifies reports, surveys, schedules, lists, and data as the forms of information that should be included as part of FRA's Study.
As discussed previously, the proposed regulation would require a railroad to implement its RRP through an RRP plan. While the railroad will not provide in the RRP plan that it submits to FRA the results of the risk-based hazard analysis and the specific mitigation strategies it will be implementing, its own RRP plan may contain this information while it is in the possession of the railroad. Therefore, to adequately protect this type of information, the term “plan” is added to cover a railroad's RRP plan and any hazard elimination or mitigation plans.
It is important to note that these proposed protections will only extend to information (including plans, reports, documents, surveys, schedules, lists, or data) that is “compiled or collected solely for the purpose of developing, implementing, or evaluating an RRP.” The term “compiled and collected” is taken directly from the RSIA. FRA recognizes that railroads may be reluctant to compile or collect extensive and detailed information regarding the safety hazards and associated risks on their system if this information could potentially be used against them in litigation. The term “compiles” refers to information that is generated by the railroad for the purposes of an RRP; whereas the term “collected” refers to information that is not necessarily generated for the purposes of the RRP, but is assembled in a collection for use by the RRP. It is important to note that the collection is protected; however, each separate piece of information that is not originally compiled for use by the RRP remains subject to discovery and admission into evidence subject to any other applicable provision of law or regulation.
The information has to be compiled or collected solely for the purpose of developing, implementing, or evaluating an RRP. The use of the term “solely” means that the original purpose of compiling or collecting the information is exclusively for the railroad's RRP. A railroad cannot compile or collect the information for one purpose and then try to use proposed paragraph (a) to protect that information simply because it also uses that information for its RRP. The railroad's original and primary purpose of compiling or collecting the information must be for developing, implementing, or evaluating its RRP in order for the protections to be extended to that information.
Information a railroad had previously compiled or collected for non-RRP purposes would also not be protected, even if the railroad continued to compile or collect that information as part of its RRP. This is because RSIA limits the protections to information that is compiled or collected pursuant to a risk reduction program required by the statute; therefore, the proposed protections cannot be extended to information that was compiled or collected prior to the proposed rule because that information was not collected pursuant to a risk reduction program required by RSIA. As discussed above, when interpreting section 409, the Supreme Court held that there is no reason to interpret the protections as protecting information plaintiffs would have been free to obtain prior to the enactment of the Hazard Elimination Program. Consistent with the Court's ruling in
Furthermore, a single type of record, plan, document, etc., could contain both information that would be protected under the proposed provision and information that would not be protected. In other words, an entire railroad document or record would not be protected simply because it contained a single piece of information that was protected. For example, if a railroad began collecting a new type of information as part of its accident investigations, and that information was being collected solely for the purpose of developing, implementing, or evaluating its RRP, that specific information would be protected. The information that had been historically collected as part of the railroad's accident investigation program, however, would remain unprotected. FRA stresses that the intent of the proposed provisions is to leave neither railroads nor plaintiffs worse off than before the implementation of an RRP rule.
Additionally, if the railroad is required by another provision of law or regulation to collect the information, the protections of proposed paragraph (a) do not extend to that information because it is not being compiled or collected solely for the purpose of developing, implementing, or evaluating an RRP. For example, information that a railroad must compile pursuant to FRA's accident/incident reporting regulations would not be protected.
The information protections would also not apply to information generated by safety risk reduction programs that do not fully comply with all the requirements of a final RRP rule. Section 109 extends protection to information generated by a safety risk reduction program that includes all the required elements of an RRP; a program that includes one or more, but not all, of the required elements of an RRP would not satisfy these statutory requirements. For example, FRA supports the development of the Short Line Safety Institute (
The information must be compiled or collected solely for the purpose of developing, implementing, or evaluating an RRP. These three terms are taken directly from the RSIA. They cover the necessary uses of the information compiled or collected solely for the RRP. To develop an RRP, a railroad will need to conduct a risk-based hazard analysis to evaluate and identify the safety hazards and associated risks on its system. This type of information is essential and is information that a railroad does not necessarily already have. In order for the railroad to conduct a robust risk-based hazard analysis to develop its RRP, the protections from discovery and admissibility are extended to the RRP development stage. Based on the information generated by the risk-based
The proposed protections would not apply to the fact that a railroad ultimately implemented a particular mitigation strategy, although the protections would apply to the information informing the railroad's decision as part of its RRP. For example, a railroad may elect to implement a new type of technology, such as new track inspection vehicles, as part of its technology implementation plan. Once the railroad is using these new track inspection vehicles, the fact that the railroad is using them is not protected by the proposed provision, as the track inspection vehicles are now serving a purpose other the development, implementation, or evaluation of the railroad's RRP (
The information covered by this proposed section shall not be subject to discovery, admitted into evidence, or considered for other purposes in a Federal or State court proceeding that involves a claim for damages involving personal injury, wrongful death, or property damage. The protections apply to discovery, admission into evidence, or consideration for others purposes. The first two situations come directly from the RSIA; however, FRA determined that for the protections to be effective they must also apply to any other situation where a litigant might try to use the information in a Federal or State court proceeding that involves a claim for damages involving personal injury, wrongful death, or property damage. For example, under proposed § 271.11, a litigant would be prohibited from admitting into evidence a railroad's risk-based hazard analysis. However, without the additional language, the railroad's risk-based hazard analysis could be used by a party for the purpose of refreshing the recollection of a witness or by an expert witness to support an opinion. The additional language, “or considered for other purposes,” ensures that the protected information remains out of a proceeding completely. The protections would be useless if a litigant is able to use the information in the proceeding for another purpose. To encourage railroads to perform the necessary vigorous risk analysis and to implement truly effective hazard elimination or mitigation measures, the protections should be extended to any use in a proceeding.
FRA further notes that this proposed section applies to Federal or State court proceedings that involve a claim for damages involving personal injury, wrongful death, or property damage. This means, for example, if a proceeding has a claim for personal injury and a claim for property damage, the protections are extended to that entire proceeding; therefore, a litigant cannot use any of the information protected by this section as it applies to either the personal injury or property damage claim. While sec. 109 of the RSIA only required the study to consider proceedings that involve a claim for damages involving personal injury or wrongful death, the RSAC (which includes both railroad and labor representation) recommended that FRA extend the information protection provisions to proceedings involving claims for property damage as well.
FRA believes it is advisable to follow this RSAC recommendation because extending the proposed information protections to property damage claims is consistent with the goal of encouraging railroads to engage in a robust and candid hazard analysis and to develop meaningful mitigation measures. The typical railroad accident resulting in injury or death also involves some form of property damage. Without protecting proceedings that involve a claim for property damage, a litigant could bring two separate claims arising from the same incident in two separate proceedings, the first for property damages and the second one for personal injury or wrongful death, and be able to conduct discovery regarding the railroad's risk analysis and to introduce this analysis in the property damage proceeding but not in the personal injury or wrongful death proceeding. This means that a railroad's risk analysis could be used against the railroad in a proceeding for damages. If this is the case, a railroad will be hesitant to engage in a robust and candid hazard analysis and develop meaningful mitigation measures. FRA also believes that expanding the information protection provisions to property damage claims would be supported by the same considerations underlying the study's conclusion that protecting risk reduction information from use in civil litigation claims for personal injuries or wrongful death would serve the broader public interest. FRA's proposed approach would also mitigate potential confusion from the application of different discovery and evidential standards for personal injury, wrongful death, and property damage claims all potentially arising from the same event.
Proposed paragraph (b) would ensure that the proposed protections set forth in paragraph (a) do not extend to information compiled or collected for a purpose other than that specifically identified in paragraph (a). This type of information shall continue to be discoverable, admissible into evidence, or considered for other purposes if it was discoverable, admissible, or considered for other purposes prior to the existence of this section. This includes information compiled or collected for a purpose other than that specifically identified in paragraph (a) that either: (1) Existed prior to 365 days after the publication date of a final rule; (2) was compiled or collected prior to 365 days after the publication date of a final rule and continues to be compiled or collected; or (3) is compiled and collected after 365 days after the publication date of a final rule. Proposed paragraph (b) affirms the
Examples of the types of information that proposed paragraph (b) applies to may be records related to prior incidents/accidents and reports prepared in the normal course of business (such as inspection reports). Generally, this type of information is often discoverable, may be admissible in Federal and State proceedings, or considered for other purposes, and should remain discoverable, admissible, or considered for other purposes where it is relevant and not unduly prejudicial to a party after the implementation of this part. However, FRA recognizes that evidentiary decisions are based on the facts of each particular case; therefore, FRA does not intend this to be a definitive and authoritative list. Rather, FRA merely provides these as examples of the types of information that paragraph (a) is not intended to protect.
Proposed paragraph (c) clarifies that a litigant cannot rely on State discovery rules, evidentiary rules, or sunshine laws that could be used to require the disclosure of information that is protected by paragraph (a). This provision is necessary to ensure the effectiveness of the Federal protections established in paragraph (a) in situations where there is a conflict with State discovery rules or sunshine laws. The concept that Federal law takes precedence where there is a direct conflict between State and Federal law should not be controversial as it derives from the constitutional principal that “the Laws of the United States . . . shall be the supreme Law of the Land.” U.S. Const., Art. VI. Additionally, FRA notes that 49 U.S.C. 20106 is applicable to this section, as FRA's study concluded that a rule “limiting the use of information collected as part of a railroad safety risk reduction program in discovery or litigation” furthers the public interest by “ensuring safety through effective railroad safety risk reduction program plans.”
Proposed § 271.13 would describe FRA's methodology for determining which railroads must comply with this part because they have inadequate safety performance. Overall, this section describes how FRA's analysis would have two phases: A statistically-based quantitative analysis phase followed by a qualitative assessment phase. Only railroads identified as possibly having inadequate safety performance in the quantitative analysis would continue on to the qualitative assessment, as discussed further below.
Proposed paragraph (a) describes FRA's methodology as a two-phase annual analysis, comprised of both a quantitative analysis and a qualitative assessment. This analysis would not include railroads excluded under proposed § 271.3(b) (
FRA specifically requests comment on whether railroads that comply voluntarily under § 271.15 should be included in FRA's analysis, and FRA's final rule may elect to include voluntarily-compliant railroads in the analysis.
Paragraph (b) would describe the quantitative analysis, which would make a threshold identification of railroads that might have inadequate safety performance. Paragraph (b)(1) would specify that the quantitative analysis would be statistically-based and would include each railroad within the scope of the analysis, using historical safety data maintained by FRA for the three most recent full calendar years. The quantitative analysis would identify four factors regarding a railroad's safety performance: (1) Fatalities; (2) FRA reportable injury/illness rate; (3) FRA reportable accident/incident rate; and (4) FRA violation rate.
The first factor, described in proposed paragraph (b)(1)(i), is a railroad's number of on-duty employee fatalities during the three-year period, determined using Worker on Duty-Railroad Employee (Class A) information reported on FRA Form 6180.55a
The second factor, described in proposed paragraph (b)(1)(ii), is a railroad's FRA on-duty employee injury/illness rate, calculated using “Worker on Duty-Railroad Employee” information reported on FRA Form 6180.55a and Form 6180.55
The third factor, described in proposed paragraph (b)(1)(iii), is a railroad's FRA reportable rail equipment accident/incident rate, calculated using information reported on FRA Form 6180.54 and Form 6180.55.
The fourth factor, described in proposed paragraph (b)(1)(iv), is a railroad's FRA violation rate, calculated using FRA's field inspector data system, which captures the number of violations and is made available to each railroad. The calculation also uses information reported to FRA on Form 6180.55. This rate would be calculated with the following formula:
Proposed paragraph (b)(2) states that the quantitative analysis would identify a railroad as possibly having inadequate safety performance if at least one of two conditions were met. Identified railroads would be examined further in the qualitative assessment, described below.
The first condition would be whether a railroad has had one or more fatalities. FRA considers an on-duty employee fatality a strong indication of inadequate safety performance. If a railroad has at least one fatality within the 3-year period of the quantitative analysis, that railroad will be examined further in the qualitative assessment.
The second condition would be whether a railroad was at or above the 95th percentile in at least two of the three factors described in proposed paragraphs (b)(1)(ii) through (iv) of this section (
Proposed paragraph (c) would describe FRA's qualitative assessment of railroads identified in the quantitative analysis as possibly having inadequate safety performance. During the qualitative assessment, FRA would consider input from both a railroad and the railroad's employees, as well as any other pertinent information. FRA believes such input would be helpful in determining whether the quantitative analysis accurately identified a problem with the railroad's safety performance.
Paragraph (c)(1) would state that FRA would provide initial written notification to railroads identified in the threshold quantitative analysis as possibly having inadequate safety performance. Paragraph (c)(1)(i) would further specify that a notified railroad must inform its employees of FRA's notice within 15 days of receiving notification. This employee notification would have to be posted at all locations where a railroad reasonably expects its employees to report for work and have an opportunity to observe the notice. The notice must be continuously displayed until 45 days following FRA's initial notice. A railroad must use other means to notify employees who do not have a regular on-duty point to report for work, consistent with the railroad's standard practice for communicating for employees. Such a notification could take place by email, for example. The notification must inform employees that they may submit confidential comments to FRA regarding the railroad's safety performance, and must contain instructions for doing so. Any such employee comments must be submitted within 45 days of FRA's initial notice.
Likewise, paragraph (c)(1)(ii) would provide railroads 45 days from FRA's initial notice to provide FRA documentation supporting any claim that the railroad does not have inadequate safety performance. For example, if a fatality on railroad property was determined to be due to natural causes (such as cardiac arrest), or an accident/incident due to an act of God, the railroad's chief safety officer could provide a signed letter attesting to the facts, and asserting the railroad's reasons for believing that it should not be found to have inadequate safety performance. A railroad could also submit information regarding any extenuating circumstances of an incident or the severity of an injury (for example, a bee sting may not be as serious a safety concern as a broken bone). FRA will also consider explanations regarding FRA-issued violations, as well as any mitigating action taken by the railroad to remedy the violations.
Paragraph (c)(2) would generally describe the qualitative assessment of railroads identified by the quantitative analysis. During the qualitative assessment, FRA would consider any information provided by a railroad or its employees pursuant to paragraph (c)(1) of this section, as well as any other pertinent information. FRA may communicate with the railroad during the assessment to clarify its understanding of any information the railroad may have submitted. Based upon the qualitative assessment, FRA would make a final determination regarding whether a railroad has inadequate safety performance no later than 90 days following FRA's initial notice to the railroad.
Paragraph (d) would state that FRA will provide a final notification to each railroad given an initial notification pursuant to paragraph (c) of this section, informing the railroad whether or not it has been found to have inadequate safety performance. A railroad with inadequate safety performance must develop and implement an RRP compliant with the proposed rule and must provide FRA an RRP plan no later than 90 days after receiving the final notification, as provided by proposed § 271.301(a).
The RRP Working Group advised FRA to allow a railroad with inadequate safety performance to choose to establish either an RRP in compliance with proposed part 271 or an SSP in compliance with proposed part 270. The Working Group believed that some railroads (particularly smaller railroads more in need of formal structures to help them improve safety) would elect to develop, with FRA assistance, an SSP rather than an RRP. While FRA supports providing additional flexibility to railroads with inadequate safety performance, this provision has not been included in the current rule text because an SSP rule has not yet taken effect. If the SSP rule goes into effect before the publication of an RRP final rule, FRA would review this section and could provide for the choice in the final rule, as advised by the Working Group. FRA is also soliciting additional public comment on such an approach.
Paragraph (e) would state that a railroad with inadequate safety performance would have to comply with the requirements of part 271 for at least five years, running from the date on which FRA approves the railroad's RRP plan. FRA believes a five-year compliance period provides the minimum amount of time necessary for an RRP to have a substantive effect on a railroad's safety performance, particularly if, pursuant to proposed § 271.221, the railroad has taken 36 months (3 years) to fully implement its RRP. An evaluation of an FRA C3RS demonstration site showed the following safety improvements after two and a half years: (1) A 31-percent increase in the number of cars moved between incidents; (2) improved labor-management relationships and employee engagement (
At the end of the five-year period, under proposed paragraph (f), the railroad could petition FRA, according to the procedures for waivers in 49 CFR part 211, for approval to discontinue compliance with part 271. Upon receiving a petition, FRA would evaluate the railroad's safety performance in order to determine whether the railroad's RRP has resulted in significant safety improvements, and whether these measured improvements are likely to be sustainable in the long term. FRA's evaluation would include a quantitative analysis as described in proposed paragraph (b). FRA would also examine qualitative factors and review information from FRA RRP audits and other relevant sources.
Analysis of the railroad's safety performance for purpose of deciding whether its petition should be granted will be driven by the unique characteristics of the railroad and its RRP; for this reason it is not possible to enumerate the types of data that will be examined in the context of a petition to discontinue compliance. In general, FRA would look at information to determine whether real and lasting changes to the operational safety and to the organizational safety culture had been made. The Safety Board will use staff recommendations and other information it deems necessary to make a final determination about whether granting a petition is in the interest of public safety. FRA seeks comment, however, on whether it should specify various factors, criteria, and data that should be considered to determine whether a waiver should be granted. If so, what should those factors, criteria, and data be? FRA may include any such standards in a final rule.
After completing the evaluation, FRA would notify the railroad in writing whether or not it would be required to continue compliance with part 271. FRA specifically requests public comment on whether railroads with inadequate safety performance should be required to comply with part 271 permanently. In general, RRPs are strategies for gradually improving railroad safety over the long-term. If a railroad discontinues an implemented RRP, this could result in the loss of many future safety improvements. Additionally, the development and implementation of an RRP require the expenditure of railroad resources. If an RRP is ended too soon, this might result in a railroad not obtaining the greatest benefit possible from its RRP investment. Requiring permanent compliance for railroads with inadequate safety performance, therefore, could maximize both the safety improvement and benefits of an RRP over the long-term. Furthermore, an inadequate safety performance railroad required to comply with part 271 permanently would also continue to receive the information protections provided for in proposed § 271.11. FRA requests comment on this approach and could elect to require continued compliance for inadequate safety performance railroads in a final rule.
FRA also specifically requests public comment on whether the five-year compliance period in proposed paragraph (e) should run from the date that the railroad's RRP is fully implemented—rather than the date on which FRA approved the railroad's RRP plan—in order to provide more time for the RRP to have a significant effect on the railroad's safety and for FRA to obtain more information in order to determine whether it should consider granting a petition for approval to discontinue compliance with this part. This alternative approach would also provide an incentive for a railroad to implement its RRP quickly, as doing so would then allow the railroad to terminate its RRP sooner as well.
FRA also specifically requests public comment on what should happen when FRA denies an inadequate safety performance railroad's petition to discontinue compliance with part 271. Should the railroad be permitted to submit a new petition as soon as it wishes, or should the regulations impose a new mandatory compliance period upon the railroad? In other words, should FRA permit the railroad to submit a new petition immediately or only after a certain period of time, such as one year or five years?
Railroads should note that § 271.223 proposes to give each affected railroad 36 months, running from the date FRA approves the railroad's RRP plan, to fully implement its RRP. If the final rule ultimately adopts this proposal, FRA anticipates that a petition for approval to discontinue compliance would most likely be unsuccessful if an inadequate safety performance railroad took the entire 36 months to achieve full implementation. In such a scenario, FRA would likely find that a petition could not be granted because it had only two years' worth of data to determine
FRA would encourage a railroad with inadequate safety performance to continue its RRP even if FRA grants its petition to discontinue compliance with part 271. If a railroad does continue its RRP, it could be considered a voluntarily-compliant railroad under proposed § 271.15, which would allow proposed § 271.11 to continue to protect information that continues to be compiled or collected pursuant to the railroad's RRP from discovery and admission as evidence in litigation. If a railroad decides not to continue with a part 271-compliant RRP, information that had been compiled or collected pursuant to the part 271-compliant RRP would remain protected under § 271.11. Any information compiled or collected pursuant to a non-compliant RRP, however, would not be protected under § 271.11.
The RSIA provides that railroads not required to establish a railroad safety risk reduction program may nevertheless voluntarily submit for FRA approval a plan meeting the requirements of the statute.
Paragraph (b) would specify that a voluntarily-compliant railroad would be required to comply with this part 271's requirements for a minimum period of five years, running from the date on which FRA approves the railroad's RRP plan. As explained above regarding railroads with inadequate safety performance, FRA believes that a minimum five-year period may provide time for a railroad to realize the safety improvements and benefits associated with its RRP investment. Under proposed paragraph (c), a voluntarily-compliant railroad would be able to petition FRA for approval to discontinue compliance with this part after the end of this five-year period. Any such petition would have to be filed in accordance with the procedures for waivers contained in 49 CFR part 211. This NPRM is not proposing any specific standards for the granting of such petitions other than what are currently found in part 211. FRA requests public comment, however, on whether it should establish such standards and, if so, what those standards should consist of. Furthermore, as with inadequate safety performance railroads, FRA specifically requests public comment on whether the minimum five-year compliance period should run from the date that a railroad's RRP is fully implemented, in order to provide more time for the RRP to have a significant effect on the railroad's safety.
Paragraph (d) would provide that the information protection provisions of proposed § 271.11 (Discovery and admission as evidence of certain information) would not apply to information that was compiled or collected pursuant to a voluntarily-compliant RRP that was not conducted in accordance with the provisions of this part 271. As discussed in the section-by-section analysis for § 271.11, voluntary risk reduction programs (such programs generated as part of a Short Line Safety Institute) would have to fully comply with an RRP final rule in order for the information generated to be protected from discovery and use as evidence in litigation.
During the RSAC process, FRA and the RRP Working Group discussed the possibility of permitting Class II or Class III railroads not otherwise required to comply with this proposed rule to voluntarily comply with an SSP rule instead of an RRP rule. While not proposed in this NPRM, as an SSP rule has not been finalized, FRA is specifically requesting public comment on whether railroads should be permitted to voluntarily comply with an SSP rule. The FRA may elect to either include such an approach in an RRP final rule or to amend an SSP final rule to provide for such.
Subpart B would contain the basic elements of an RRP required by the proposed rule. The proposed rule would provide a railroad significant flexibility in developing and implementing an RRP.
Proposed § 271.101 would contain general requirements regarding RRPs. Paragraph (a)(1) would require railroads to establish and fully implement an RRP meeting the requirements of this part 271. As specified by the RSIA, an RRP must systematically evaluate safety hazards on a railroad's system and manage risks associated with those hazards to reduce the number and rates of railroad accidents/incidents, injuries, and fatalities.
Paragraph (a) also clarifies that an RRP must be an ongoing program that supports continuous safety improvement. A railroad that conducts a one-time risk-based hazard analysis and does nothing further after addressing the results of that analysis will not have established a compliant RRP. Paragraph (a) would also list the necessary components that an RRP must contain, including: (1) A risk-based hazard management program (described in § 271.103); (2) a safety performance evaluation component (described in § 271.105); (3) a safety outreach component (described in § 271.107); (4) a technology analysis and technology implementation plan (described in § 271.109); and (5) RRP implementation and support training (described in § 271.111).
Paragraph (b) would require a railroad's RRP to be supported by an RRP plan, meeting the requirements of
Paragraph (c) would address railroads subject to the RRP rule that host passenger train service for passenger railroads subject to the requirements of the proposed SSP rule. Under § 270.103(a)(2) of the proposed SSP rule, a passenger railroad must communicate with each host railroad to coordinate the portions of its SSP plan that are applicable to the host railroad. Paragraph (c) would require a host railroad, as part of its RRP, to participate in this communication and coordination with the passenger railroad.
Paragraph (d) would require a railroad to ensure that persons utilizing or performing on its behalf a significant safety-related service support and participate in the railroad's RRP. Such persons would include entities such as host railroads, contract operators, shared track/corridor operators, or other contractors utilizing or performing significant safety-related services, and must be identified by the railroad in its RRP plan pursuant to proposed § 271.205(b).
This proposed section would contain the requirements for each risk-based hazard management program (HMP). Proposed § 271.103(a)(1) would require a railroad's RRP to include a risk-based HMP that proactively identifies hazards and mitigates the risks associated with those hazards. A risk-based HMP must be integrated, system-wide, and ongoing. The scope of a risk-based HMP would be scalable based upon the size and extent of the railroad's system.
Paragraph (a)(2) proposes that a risk-based HMP must be fully implemented (
Paragraph (b) would state that a railroad must conduct a risk-based hazard analysis as part of its risk-based HMP. The types of principles and processes that inform a successful risk-based hazard analysis have already been well-established by programs previously discussed in this preamble, such as MIL–STD–882, APTA's “Manual for the Development of System Safety Program Plans for Commuter Railroads”, and FRA's “Collision Hazard Analysis Guide.” A railroad subject to a final RRP rule could use any of these programs for guidance on how to conduct a risk-based hazard analysis, pursuant to FRA's approval of the processes in the railroad's RRP plan under proposed § 271.211. As described in the “Collision Hazard Analysis Guide,” a risk-based hazard analysis is performed to identify hazardous conditions for the purpose of mitigation, and could include several analysis techniques applied throughout the lifetime of an RRP.
Paragraph (b) specifies that, at a minimum, a risk-based hazard analysis must address the following components of a railroad's system: Infrastructure; equipment; employee levels and work schedules; operating rules and practices; management structure; employee training; and other areas impacting railroad safety that are not covered by railroad safety laws or regulations or other Federal laws or regulations.
While the RSIA directed railroads to address safety culture in their risk-based hazard analyses, FRA chose not to be prescriptive regarding this requirement, as prescribing how risk-based hazard analysis would identify hazards generated by a safety culture would be difficult. FRA would require railroads to measure their safety culture, however, in proposed § 271.105(a), and believes that this proposed approach would adequately address any related safety concerns presented by a railroad's safety culture. With respect to measuring safety culture, the proposed rule would permit railroads to identify the safety culture measurements methods that they find most effective and appropriate to their local conditions. When measuring safety culture, FRA would expect a railroad to use a method that was capable of correlating a railroad's safety culture with actual safety outcomes. For example, such measurement methods could include surveys that assess safety culture using validated scales, or some other method or measurement that accurately identifies aspects of the railroad's safety culture that correlate to safety outcomes. Ultimately, FRA would expect a railroad to demonstrate that improvements in the measured aspects of safety culture would reliably lead to reductions in accidents, injuries, and fatalities. FRA requests public comment on how a railroad should measure its safety culture as part of its RRP.
As further described in paragraph (b), a risk-based hazard analysis must identify hazards by analyzing the following: (1) Various aspects of the railroad's system (including any operational changes, system extensions, or system modifications); and (2) accidents/incidents, injuries, fatalities, and other known indicators of hazards (such as data compiled from a close call reporting program). A railroad must then calculate risk by determining and analyzing the likelihood and severity of potential events associated with the identified hazards. These risks must then be compared and prioritized for the purpose of mitigation.
Paragraph (c)(1) would require a railroad, based on its risk-based HMP, to design and implement mitigation strategies that improve safety by mitigating or eliminating aspects of a railroad's system that increase risks identified in the risk-based hazard analysis and enhancing aspects of a railroad's system that decrease risks identified in the risk-based hazard analysis. As provided in proposed paragraph (c)(2), a railroad could use pilot projects (including those conducted by other railroads) to determine whether quantitative data suggests that a particular mitigation strategy has potential to succeed on a full-scale basis. FRA anticipates that railroads will design and implement mitigation strategies that are either cost-beneficial or cost-neutral. FRA requests public comment on this assumption. FRA is specifically interested in the experience of any railroads that may have already utilized risk reduction strategies, and whether or not such railroads have realized cost benefits from the design and implementation of risk mitigation strategies. In railroads' experiences, how much have mitigation strategies related to risk reduction activities cost?
As discussed above in the analysis of the purpose and scope provisions of proposed § 271.1, FRA does not intend the proposed regulation to address hazards and risks that are completely unrelated to railroad safety and that would fall directly under the jurisdiction of either OSHA or the EPA. FRA would not, therefore, expect a risk-based HMP to address hazards and risks that go beyond the limits of FRA's railroad safety jurisdiction. A risk-based
Additionally, the proposed regulation does not define a level of risk that railroads must target with their risk-based HMPs. FRA's Passenger Equipment Safety Standards require passenger railroads, however, when procuring new passenger cars and locomotives, to ensure that fire safety considerations and features in the design of the equipment reduce the risk of personal injury caused by fire to an acceptable level using a formal safety methodology such as MIL–STD–882.
This section would contain requirements for safety performance evaluations. Safety performance evaluation is a necessary part of a railroad's RRP because it determines whether the RRP is effectively reducing risk. It also monitors the railroad's system to identify emerging or new risks. In this sense, it is essential for ensuring that a railroad's RRP is an ongoing process, and not merely a one-time exercise.
Paragraph (a) would require a railroad to develop and maintain ongoing processes and systems for evaluating the safety performance of a railroad's system. A railroad must also develop and maintain processes and systems for measuring its safety culture. For example, a railroad could measure its safety culture by surveying employees and management to establish an initial baseline safety culture, and then comparing that initial baseline to subsequent surveys. FRA would give a railroad substantial flexibility, however, to decide which safety culture measurement was the best fit for the organization. FRA's primary concern would be that the selected measurement would provide a way to demonstrate that an improvement in the safety culture measurement would reliably lead to a corresponding improvement in safety. Overall, a safety performance evaluation would consist of both a safety monitoring and a safety assessment component.
Paragraph (b) would establish the safety monitoring component by requiring a railroad to monitor the safety performance of its system. At a minimum, a railroad must do so by establishing processes and systems for acquiring safety data and information from the following sources: (1) Continuous monitoring of operational processes and systems (including any operational changes, system extensions, or system modifications); (2) periodic monitoring of the operational environment to detect changes that may generate new hazards; (3) investigations of accidents/incidents, injuries, fatalities, and other known indicators of hazards; (4) investigations of reports regarding potential non-compliance with Federal railroad safety laws or regulations, railroad operating rules and practices, or mitigation strategies established by the railroad; and (5) a reporting system through which employees can report safety concerns (including, but not limited to, hazards, issues, occurrences, and incidents) and propose safety solutions and improvements. The requirement for a reporting system would not require a railroad to establish an extensive program like FRA's Confidential Close Call Reporting System (C3RS). Rather, a railroad would have substantial flexibility to design a reporting system best suited to its own organization (or, if a railroad already has some sort of reporting system, to modify it to meet the needs of the railroad's RRP). For example, a railroad could decide whether or not it wanted its reporting system to be confidential or non-punitive.
Paragraph (c) would establish the safety assessment component, the purpose of which is to assess the need for changes to a railroad's mitigation strategies or overall RRP. To do so, a railroad must establish processes to analyze the data and information collected pursuant to the safety monitoring component of this section, as well as any other relevant data regarding the railroad's operations, products, and services. At a minimum, this safety assessment must: (1) Evaluate the overall effectiveness of the railroad's RRP in reducing the number and rates of railroad accidents/incidents, injuries, and fatalities; (2) evaluate the effectiveness of the railroad's RRP in meeting the goals described in its RRP plan pursuant to proposed § 271.203(c); (3) evaluate the effectiveness of risk mitigations in reducing the risk associated with an identified hazard (any hazards associated with ineffective mitigation strategies would be required to be reevaluated through the railroad's risk-based HMP); and (4) identify new, potential, or previously unknown hazards, which shall then be evaluated by the railroad's risk-based HMP.
This section contains requirements regarding the safety outreach component of an RRP. Under proposed paragraph (a), an RRP must include a safety outreach component that communicates RRP safety information to railroad personnel (including contractors) as that information is relevant to their positions. At a minimum, a safety outreach program must: (1) Convey safety-critical information; (2) explain why RRP-related safety actions are taken; and (3) explain why safety procedures are introduced or changed.
Railroads should note that this section imposes only a general education and communication requirement (similar to a briefing), and not a training curriculum requirement that would require railroads to test and qualify employees on the information conveyed. The focus of this section would be limited to outreach and safety awareness. A limited one-time RRP training requirement for railroad employees who have significant responsibility for implementing and supporting a railroad's RRP is contained in proposed § 271.111, discussed below. Furthermore, this section would only require a railroad to communicate RRP safety information that is relevant to an employee's position. For example, a railroad could be expected to notify railroad employees of a mitigation strategy that is being implemented that requires employee participation (
Paragraph (b) would require a railroad to report the status of risk-based HMP activities to railroad senior management on an ongoing basis. A railroad would have flexibility in its RRP plan to specify what “ongoing basis” means.
This section would implement the RSIA requirement that an RRP include a technology analysis and a technology implementation plan.
Paragraph (a) would require a Class I railroad to conduct a technology analysis and to develop and adopt a technology implementation plan no later than three years after the publication date of the final rule. A railroad with inadequate safety performance shall conduct a technology analysis and develop and adopt a technology implementation plan no later than three years after receiving final written notification from FRA that it shall comply with this part, pursuant to § 271.13(e), or no later than three years after the publication date of the final rule, whichever is later. A railroad that the STB reclassifies or newly classifies as a Class I railroad shall conduct a technology analysis and develop or adopt a technology implementation plan no later than three years following the effective date of the classification or reclassification or no later than three years after the effective date of the final rule, whichever is later. A voluntarily-compliant railroad shall conduct a technology analysis and develop and adopt a technology implementation plan no later than three years after FRA approves the railroad's RRP plan. It is important to note that the technology implementation plan needs to be adopted within three years of the various events described in paragraph (a), not necessarily the actual technology. FRA understands that certain technologies may take longer than three years to properly implement, and the three year timeline in paragraph (a) does not apply to this technology. FRA would, however, expect a railroad to implement technology in a timely manner consistent with its implementation plan. Further, as addressed by paragraph (d), if a railroad implements technology pursuant to 49 CFR part 236, subpart I (Positive Train Control Systems), the railroad is required to comply with the timeline set forth in RSIA.
Under paragraph (b), a technology analysis must evaluate current, new, or novel technologies that may mitigate or eliminate hazards and the resulting risks identified through the risk-based hazard management program. The railroad would analyze the safety impact, feasibility, and costs and benefits of implementing technologies that will mitigate or eliminate hazards and the resulting risks. At a minimum, a technology analysis must consider processor-based technologies, positive train control (PTC) systems, electronically-controlled pneumatic brakes, rail integrity inspection systems, rail integrity warning systems, switch position monitors and indicators, trespasser prevention technology, and highway-rail grade crossing warning and protection technology. FRA specifically requests public comment on whether a technology analysis should be required to consider additional technologies, or whether some of the proposed technologies do not need to be addressed by the technology analysis.
Under paragraph (c), a railroad must develop, and periodically update as necessary, a technology implementation plan that contains a prioritized implementation schedule describing the railroad's plan for development, adoption, implementation, maintenance, and use of current, new, or novel technologies on its system over a 10-year period to reduce safety risks identified in the railroad's risk-based HMP. A railroad would not be required to include a certain number or type of technology in its plan, as this will depend upon the identified hazards. As proposed, the phrase “periodically update as necessary” means that a railroad's plan must be ongoing and continuous, rather than a one-time exercise. When a railroad updates its plan, it would be required to do so in a way that extended the plan 10 years from the date of the update. FRA is specifically requesting public comment on whether the phrase “as necessary” should be replaced by a definite requirement for a railroad to update its plan after a specific period of time. If so, how long should this time period be? For example, should a railroad be required to update its technology implementation plan annually?
Paragraph (d) would state that, except as required by 49 CFR part 236, subpart I (Positive Train Control Systems), if a railroad decides to implement a PTC system as part of its technology implementation plan, the railroad shall set forth and comply with a schedule that would implement the system no later than December 31, 2018, as required by the RSIA.
This proposed section would require a railroad to provide RRP training to each employee who has significant responsibility for implementing and supporting the railroad's RRP. This proposed training requirement would apply to any employee with such responsibility, including an employee of a person identified by a railroad's RRP plan under proposed § 271.205(a)(3) as utilizing or performing significant safety-related services on the railroad's behalf. While railroads will have some flexibility in identifying which employees have significant RRP responsibilities, the following two categories of employees are examples of who should be included: (1) Employees who hold positions of safety leadership (
This training would help ensure that personnel with significant RRP responsibilities are familiar with the elements of the railroad's program and have the knowledge and skills needed to fulfill their responsibilities. While this training requirement was not contained in the “Recommendations to the Administrator” document voted on by the RSAC RRP Working Group, FRA
Safety-related railroad employee means an individual who is engaged or compensated by an employer to: (1) Perform work covered under the hours of service laws found at
Because this definition focuses on railroad operating employees and those who directly train and supervise them, FRA assumes that it would not include the typical railroad employee who has significant responsibility for implementing and supporting a railroad's RRP, as FRA believes it is unlikely that employees with significant RRP responsibilities would also be engaged in performing operational duties or directly training or supervising those who do.
FRA is specifically requesting public feedback on this proposed RRP implementation and support training requirement. What topics should RRP implementation and support training cover? (For example, should employees with significant RRP responsibilities be trained in the principles and requirements of a final rule?) Also, should periodic or refresher training be provided?
Subpart C would contain proposed requirements for RRP plans.
Proposed § 271.201 would require a railroad to adopt and implement its RRP through a written RRP plan meeting the requirements of subpart C. This plan must be approved by FRA according to the requirements of subpart D.
Proposed § 271.203 would contain requirements for policy, purpose and scope, and goals statements for an RRP plan. Under paragraph (a), an RRP plan must contain a policy statement, signed by the railroad's chief official (
Paragraph (b) would require an RRP plan to include a statement describing the purpose and scope of the railroad's RRP. This statement must describe the railroad's safety philosophy and safety culture. A safety philosophy is what a railroad thinks about safety, while a safety culture is the railroad's practices and behaviors with respect to safety. This statement must also describe how the railroad promotes improvements to its safety culture, the roles and responsibilities of railroad personnel (including management) within the railroad's RRP, and how any person utilizing or performing on a railroad's behalf significant safety-related services (including host railroads, contract operators, shared track/corridor operators, or other contractors) will support and participate in the railroad's RRP.
Under paragraph (c), an RRP plan must contain a statement defining the railroad's goals for an RRP and describing clear strategies for reaching those goals. The central goal of an RRP is to manage or eliminate hazards and the resulting risks to reduce the number and rates of railroad accidents, incidents, injuries, and fatalities. FRA believes one way to achieve this central goal is for a railroad to set forth goals that are designed in such a way that when the railroad achieves these goals, the central goal is achieved as well. These goals may not be merely vague aspirations towards general safety improvement. Rather, as described further below, the goals must be long-term, meaningful, measurable, and focused on the mitigation of risks associated with identified safety hazards.
• Long-term: Goals must be long-term so that they are relevant to the railroad's RRP. This does not mean that goals cannot have relevance in the short-term. Rather, goals must have significance beyond the short-term and must continue to contribute to the RRP.
• Meaningful: Goals must be meaningful so that they are not so broad
• Measurable: Goals must be measurable so that they are designed in such a way that it is easily determined whether each goal is achieved or at least progress is being made to achieve the goal. A measurable goal is one which is supported by specific measurable objectives, which address activities and outcomes that help achieve the goals.
• The goals must be consistent with the overall goal of the RRP, in that they must be focused on the mitigation of risks arising from identified safety hazards.
For example, a railroad could have goals such as reducing the number of incidents involving run-through switches, reducing the number of injuries due to distraction, increasing the number of days between minor derailments, or identifying and eliminating or mitigating hazardous conditions with a railroad's processes and operations. Such goals must be supported by specific, measurable objectives. For example, the goal of identifying and eliminating or mitigating hazardous conditions with a railroad's processes and operations could be supported by the following objectives: (1) Increase safety hazard reporting by 10 percent over the next year; and (2) initiate mitigation of all unacceptable hazards within a certain numbers of months following the risk-based hazard analysis. Whatever the goal, there should be a specific measurable objective associated with it, and once mitigation has enabled a railroad to reach that goal, resources should be allowed to shift from mitigation to maintenance. This goal specificity is necessary so that a railroad may be able to determine whether its RRP is meeting these goals and effectively improving safety. Furthermore, the statement required by proposed paragraph (c) must describe clear strategies on how the railroad will achieve these goals. These strategies will be the railroad's opportunity to provide its vision on how these particular goals will ultimately reduce the number and rates of railroad accidents, incidents, injuries, and fatalities.
This section would require an RRP plan to include a statement describing the characteristics of the railroad system. This section would not, however, require a railroad to describe every facet of its system in minute detail. Rather, the description should be sufficient to support the identification of hazards by establishing a basic understanding of the scope of the railroad's system. For example, the description should contain information such as the general geographic scope of the railroad's system, the total miles of track that the railroad operates, and which track segments the railroad shares with other railroads. More specifically, the statement must describe the following:
• A brief history of the railroad, including when and how the railroad was established and the major milestones in the railroad's history. Safety culture, operating rules, and practices have been affected by railroad mergers and other significant events, and this information will provide background as to the railroad's organizational history and how it may have shaped the way in which the railroad addresses safety risk;
• The railroad's operations (including any host operations), including the roles, responsibilities, and organization of the railroad operating departments;
• The scope of the service the railroad provides, including the number of routes, the major types of freight the railroad transports (including intermodal and hazardous materials), and their respective traffic proportions. The railroad may also provide a system map;
• The physical characteristics of the railroad, including the number of miles of track the railroad operates over, the number and types of grade crossings the railroad operates over, and which track segments the railroad shares with other railroads;
• A brief description of the railroad's maintenance activities and the type of maintenance required by the railroad's operations and facilities;
• Identification of the size and location of the railroad's physical plant, including major physical assets such as maintenance facilities, offices, and large classification yards; and
• Any other aspects of the railroad pertinent to the railroad's operations.
The system description must also identify all persons that utilize or perform on the railroad's behalf significant safety-related services (including entities such as host railroads, contract operations, shared track/corridor operators, or other contractors). FRA would give a railroad significant discretion to identify which persons utilize or provide on its behalf significant safety-related services. In interpreting this proposed provision, emphasis would be placed upon the words “significant” and “safety-related.” FRA does not expect a railroad to identify every contractor that provides services. For example, a railroad would be expected to identify a signal contractor that routinely performed services on its behalf, but not a contractor hired on a one-time basis to pave a grade crossing. Generally, this section would require identification of those persons whose significant safety-related services or utilization would be affected by the railroad's RRP.
Section 271.207 would implement section 103(g)(1) of the RSIA, which states that a railroad required to establish an RRP must “consult with, employ good faith and use its best efforts to reach agreement with, all of its directly affected employees, including any non-profit employee labor organization representing a class or craft of directly affected employees of the railroad carrier, on the contents of the safety risk reduction program.” 49 U.S.C. 20156(g)(1). This section would also implement section 103(g)(2) of the RSIA, which further provides that if a “railroad carrier and its directly affected employees, including any nonprofit employee labor organization representing a class or craft of directly affected employees of the railroad carrier, cannot reach consensus on the proposed contents of the plan, then directly affected employees and such organizations may file a statement with the Secretary explaining their views on the plan on which consensus was not reached.” 49 U.S.C. 20156(g)(2). The RSIA requires FRA to consider these views during review and approval of a railroad's RRP plan.
As discussed above in section III.B of the preamble, the proposed language is essentially identical to that proposed in the separate SSP NPRM, published on September 7, 2012, except that it contains additional language applying specifically to the unique situations of railroads with inadequate safety performance, railroads that have been reclassified or newly classified as Class I railroads by the STB, and voluntarily-compliant railroads. While the RSAC did not provide recommended language for this section, FRA worked with the System Safety Task Group to receive input regarding how the consultation process should be addressed, with the understanding that the language would be provided in both the RRP and SSP NPRMs for review and comment. Therefore, FRA seeks comment on this rule's proposal regarding the consultation requirement set forth in sec. 103(g) of the RSIA. Furthermore,
Paragraph (a)(1) would implement sec. 103(g)(1) of the RSIA by requiring a railroad to consult with its directly affected employees on the contents of its RRP plan, including any non-profit employee labor organization representing a class or craft of the railroad's directly affected employees. As part of that consultation, a railroad must utilize good faith and best efforts to reach agreement with its directly affected employees on the contents of its plan.
Paragraph (a)(2) would specify that a railroad that consults with a non-profit employee labor organization is considered to have consulted with the directly affected employees represented by that organization.
Paragraph (a)(3) would require a Class I railroad to meet with its directly affected employees to discuss the consultation process no later than 240 days after the publication date of the final rule. This meeting will be the Class I railroads' and directly affected employees' opportunity to schedule, plan, and discuss the consultation process. FRA does not expect a Class I railroad to discuss any substantive material until the information protection provisions of § 271.11 become applicable. Rather, this initial meeting should be more administrative in nature so that both parties understand the consultation process as they go forward and so that they may engage in substantive discussions as soon as possible after the applicability date of § 271.11. This will also be an opportunity to educate the directly affected employees on risk reduction and how it may affect them. The Class I railroad will be required to provide notice to the directly affected employees no less than 60 days before the meeting is scheduled.
Paragraph (a)(4) would require a railroad with inadequate safety performance to meet no later than 30 days following FRA's notification with its directly affected employees to discuss the consultation process. The inadequate safety performance railroad would have to notify the employees of this meeting no less than 15 days before it is scheduled. Under paragraph (a)(5), a railroad reclassified or newly classified by the STB would have to meet with its directly affected employees to discuss the consultation process no later than 30 days following the effective date of the classification or reclassification. The reclassified or newly classified Class I railroad would also be required to notify its directly affected employees of the meeting no less than 15 days before it is scheduled. FRA specifically requests public comment on whether this schedule allows railroads with inadequate safety performance or reclassified or newly classified Class I railroads sufficient time to consult with directly affected employees.
Paragraph (a)(6) would clarify that while a voluntarily-compliant railroad must also consult with its directly affected employees using good faith and best efforts, there are no timeline requirements governing when such meetings must take place.
Paragraph (a)(7) would direct readers to proposed appendix B for additional guidance on how a railroad might comply with the consultation requirements of this section. Appendix B is discussed later in this preamble.
Paragraph (b) would require a railroad to submit, together with its RRP plan, a consultation statement. The purpose of this consultation statement would be twofold: (1) To help FRA determine whether the railroad has complied with § 271.207(a) by, in good faith, consulting and using its best efforts to reach agreement with its directly affected employees on the contents of its RRP plan; and (2) to ensure that the directly affected employees with which the railroad has consulted were aware of the railroad's submission of its RRP plan to FRA for review. The consultation statement must contain specific information described in proposed paragraphs (b)(1) through (4) of this section.
Paragraph (b)(1) would require a consultation statement to contain a detailed description of the process the railroad utilized to consult with its directly affected employees. This description should contain information such as (but not limited to) the following: (1) How many meetings the railroad held with its directly affected employees; (2) what materials the railroad provided its directly affected employees regarding the draft RRP plan; and (3) how input from directly affected employees was received and handled during the consultation process.
If the railroad is unable to reach agreement with its directly affected employees on the contents of its RRP plan, paragraph (b)(2) would require that the consultation statement identify any areas of non-agreement and provide the railroad's explanation for why it believed agreement was not reached. A railroad could specify, in this portion of the statement, whether it was able to reach agreement on the contents of its RRP plan with certain directly affected employees, but not others.
If the RRP plan would affect a provision of a collective bargaining agreement between the railroad and a non-profit employee labor organization, paragraph (b)(3) would require the consultation statement to identify any such provision and explain how the railroad's RRP plan would affect it.
Under proposed paragraph (b)(4), the consultation statement must include a service list containing the names and contact information for the international/national president of any non-profit employee labor organization representing directly affected employees and any directly affected employee not represented by a non-profit employee labor organization who significantly participated in the consultation process. If an international/national president did not participate in the consultation process, the service list must also contain the name and contact information for a designated representative who participated on his or her behalf. This paragraph would also require a railroad (at the same time it submits its proposed RRP plan and consultation statement to FRA) to provide individuals identified in the service list a copy of the RRP plan and consultation statement. Railroads could provide the documents to the identified individuals electronically, or using other means of service reasonably calculated to succeed (
Paragraph (c)(1) would implement sec. 103(g)(2) of the RSIA by providing that, if a railroad and its directly affected employees cannot reach agreement on the proposed contents of an RRP plan, then a directly affected employee may file a statement with the
Paragraph (c)(2) would specify, as also provided in § 271.301(a)(1), that a railroad's directly affected employees have 60 days following the railroad's submission of its proposed RRP plan to submit the statement described in paragraph (c)(1) of this section. FRA believes 60 days would provide directly affected employees sufficient time to review a railroad's proposed RRP plan and to draft and submit to FRA a statement if they were not able to come to agreement with the railroad on the contents of that plan. In order to provide directly affected employees the opportunity to submit a statement, FRA would not approve or disapprove a railroad's proposed RRP plan before the conclusion of this 60-day period.
This section would describe the consultation requirements for amendments to a railroad's RRP plan. Under this section, an RRP plan would be required to include a description of the process the railroad will use to consult with its directly affected employees on any substantive amendments to the railroad's RRP plan. Examples of substantive amendments could include the following: the addition of new stakeholder groups (or the removal of a stakeholder group); major changes to the processes employed, including changes to the frequency of governing body meetings; or changing the organizational level of the manager responsible for the RRP (
This section would require an RRP plan to describe the railroad's process for conducting an HMP. As previously discussed, railroads could look to well-established safety management systems for guidance on how to describe the process for conducting an HMP, such as MIL–STD–882, APTA's
This section also specifies certain information that must be contained in an RRP plan's description of a railroad's HMP process. Under paragraph (a), this description must specify: (1) The railroad's processes for identifying hazards and the risks associated with those hazards; (2) the sources the railroad will use to support the ongoing identification of hazards and the risks associated with those hazards; and (3) the railroad's processes for comparing and prioritizing the identified risks for mitigation purposes.
Paragraph (b) would require an RRP plan to describe the railroad's processes for identifying and selecting mitigation strategies and for monitoring an identified hazard through the mitigation of the risk associated with that hazard.
This section would require an RRP plan to describe the railroad's processes for measuring its safety culture pursuant to § 271.105, monitoring safety performance pursuant to § 271.105(b), and conducting safety assessments pursuant to § 271.105(c). Regarding the requirement for a railroad to describe its processes for measuring safety culture, this would require a railroad's plan to explain its definition of safety culture and how the railroad measures whether that definition is being achieved. For example, a railroad could define the parameters by which it measures its safety culture, and then measure changes to its safety culture relative to that initial baseline. Overall, FRA would give a railroad substantial flexibility in determining what safety culture definition and measurement processes worked best for its organization.
This section would require an RRP plan to describe a railroad's process for communicating safety information to railroad personnel and management pursuant to § 271.107.
This section would require an RRP plan to describe a railroad's processes for conducting a technology analysis pursuant to § 271.109(b) and for developing a technology implementation plan pursuant to § 271.109(c).
Paragraph (a) of this section would require an RRP plan to contain a training plan describing the railroad's processes for training, pursuant to § 271.111, employees with significant responsibility for implementing and supporting the RRP (including employees of a person identified pursuant to § 271.205(a)(3) as utilizing or performing significant safety-related services on the railroad's behalf who have significant responsibility for implementing and supporting the railroad's RRP).
Paragraph (b) would require the training plan to specifically describe the frequency and content of the RRP training for each position or job function identified pursuant to § 271.223(b)(3) as having significant responsibilities for implementing the RRP.
Paragraph (a) of this section would require an RRP plan to describe a railroad's processes for conducting an internal assessment of its RRP pursuant to proposed subpart E. At a minimum, this description must contain the railroad's processes for: (1) Conducting an internal RRP assessment; (2) internally reporting the results of its internal assessment to railroad senior management; and (3) developing improvement plans, including developing and monitoring recommended improvements (including any necessary revisions or updates to its RRP plan) for fully implementing its RRP, complying with the implemented elements of the RRP plan, or achieving the goals identified in the railroad's RRP
Paragraph (a) of this section would require an RRP plan to describe how the railroad would implement its RRP. A railroad may implement its RRP in stages, so long as the RRP is fully implemented within 36 months of FRA's approval of the plan. Under paragraph (b), this implementation plan must cover the entire implementation period and contain a timeline (beginning with the date FRA approved the railroad's RRP plan) describing when certain specific and measurable implementation milestones will be achieved. The implementation plan must also describe the roles and responsibilities of each position or job function with significant responsibility for implementing the railroad's RRP or any changes to the railroad's RRP (including any such positions or job functions held by an entity or contractor that utilizes or performs on the railroad's behalf significant safety-related services). An implementation plan must also describe how significant changes to the railroad's RRP will be made.
The RSIA requires a railroad to submit its RRP, including any of the required plans, to the Administrator (as delegate of the Secretary) for review and approval.
This section would contain requirements for the filing of an RRP plan and FRA's approval process.
Paragraph (a) would require a Class I railroad to submit one copy of its RRP plan to the FRA Associate Administrator for Railroad Safety/Chief Safety Officer no later than 545 days after the publication date of the RRP final rule. A railroad with inadequate safety performance would be required to submit its RRP plan no later than 90 days after it receives final written notification from FRA that it is required to comply with the RRP rule pursuant to proposed § 271.13(e), or no later than 545 days after the publication date of the RRP final rule, whichever is later. A railroad that the STB reclassifies or newly classifies as a Class I railroad shall submits its RRP plan no later than 90 days following the effective date of the classification or reclassification, or no later than 545 days after the publication date of the RRP final rule, whichever is later. A voluntarily-compliant railroad could submit an RRP plan at any time. FRA specifically requests public comment on whether electronic submission of an RRP plan should be permitted and, if so, what type of process FRA should use to accept such submissions.
A railroad would be required to provide certain additional information as part of its submission. Under paragraph (a)(1), a submitted RRP plan would be required to include the signature, name, title, address, and telephone number of the chief official responsible for safety and who bears the primary managerial authority for implementing the submitting railroad's safety policy. By signing, the chief official responsible for safety is certifying that the contents of the RRP plan are accurate and that the railroad will implement the contents of the program as approved by FRA.
Paragraph (a)(2) would require a submitted RRP plan to contain the contact information for the primary person responsible for managing the RRP for the railroad. This person may be the same person as the chief official responsible for safety and who bears the primary managerial authority for implementing the submitting railroad's safety policy. If it is not the same person, however, the contact information for both must be provided. The contact information for the primary person managing the RRP is necessary so that FRA knows who to contact regarding any issues with the railroad's RRP.
Under paragraph (a)(3), the submitted RRP plan would have to contain the contact information for the senior representatives of the persons that the railroad has determined utilize or provide significant safety-related services (including entities such as host railroads, contract operators, shared track/corridor operators, and other contractors). This contact information is necessary so that FRA is aware of which persons will be involved in implementing and supporting the railroad's RRP.
Finally, paragraph (a)(4) would reference proposed § 271.207(b) and require a railroad to submit the consultation statement describing how it consulted with its directly affected employees on the contents of the RRP plan. When the railroad provides the consultation statement to FRA, proposed § 271.207(b)(4) would also require the railroad to provide a copy of the statement to directly affected employees identified in a service list. Directly affected employees could then file a statement within 60 days after the railroad filed its consultation statement, as discussed in proposed § 271.207(c).
Paragraph (b) would describe FRA's process for approving a railroad's RRP plan. Within 90 days of receipt of an RRP plan, or within 90 days of receipt of each RRP plan submitted prior to the commencement of railroad operations, FRA would review the proposed RRP plan to determine if the elements required by part 271 are sufficiently addressed, and whether the processes and resources described by the plan are sufficient to support effective implementation of the required RRP elements. This review would also consider any statement submitted by directly affected employees pursuant to proposed § 271.207(c). This process would involve continuous communication between FRA and the railroad, and FRA intends to work with a railroad when reviewing its plan and to keep directly affected employees informed of this process. If this communication process results in substantively significant changes to the railroad's submitted RRP plan, FRA may direct the railroad to consult further with its directly affected employees before FRA approves the plan.
Railroads should note the FRA will not be approving specific mitigation measures as part of a railroad's RRP plan. Rather, a railroad's RRP plan should only describe the processes and procedures the railroad will use to develop and implement its RRP, including the processes and procedures that will be used to identify and mitigate or eliminate hazards and risks. FRA does not expect railroads to have already identified and analyzed hazards and risks, and to have developed specific mitigation strategies, at the time FRA approves the railroad's RRP plan.
Once FRA determines whether a railroad's RRP plan complies with the requirements of part 271, FRA would provide the railroad's primary contact person written notification of whether the railroad's RRP plan is approved or not. If FRA does not approve a plan, it would inform the railroad of the specific points in which the plan is deficient. FRA would also provide written notification to each individual identified in the service list accompanying the consultation statement required under proposed § 271.207(b)(4). If a railroad receives notification that the plan is not approved (including notification of the specific points in which the plan is deficient), the railroad would have 60
Paragraph (c) would specify that all documents required to be submitted to FRA under this part may be submitted electronically pursuant to the procedures in proposed appendix C to this part.
This section would address the process a railroad must follow whenever it amends its FRA-approved RRP plan, regardless of whether the amendments are substantive or non-substantive. If a railroad makes substantive amendments, however, it would be required to follow the process described in its RRP plan (pursuant to § 271.209) for consulting with its directly affected employees. A railroad must submit the amended RRP plan to FRA not less than 60 days prior to the proposed effective date of the amendment(s). Along with the amended RRP plan, the railroad must also file a cover letter outlining the proposed change(s) to the original, approved RRP plan. The cover letter should provide enough information so that FRA knows what is being added or removed from the original approved RRP. These requirements would not apply if the proposed amendment is limited to adding or changing a name, title, address, or telephone number of a person, although the railroad would still be required to file the amended RRP plan with FRA's Associate Administrator for Railroad Safety/Chief Safety Officer. Such amendments would be implemented by the railroad upon filing with FRA.
FRA would review the proposed amended RRP plan within 45 days of receipt. FRA would then notify the railroad's primary contact person whether the amended plan has been approved. If the amended plan is not approved, FRA would inform the railroad of the specific points in which the proposed amendment is deficient. In some instances, FRA may not be able to complete its review in 45 days. In these cases, if FRA fails to timely notify the railroad, the railroad may implement the amendment(s) to the plan, which may be subject to change once FRA completes its review. Within 60 days of receiving notification from FRA that a proposed amendment has not been approved, a railroad must provide FRA either a corrected copy of the amendment, addressing all deficiencies noted by FRA, or notice that the railroad is retracting the amendment. (Railroads should note that a retracted amendment would be covered by the information protections provisions of proposed § 271.11, as the amendment would have been information compiled for the sole purpose of developing an RRP.) Through its general oversight, FRA may also determine that amendments to the RRP plan are necessary. In these cases, the FRA would follow the process set forth in proposed § 271.305.
This section does not propose a provision for amendments that a railroad may deem safety-critical. Because a railroad's RRP plan would only explain the processes and procedures for the program, FRA is uncertain whether a railroad would ever need to amend the plan in order to address a specific safety-critical concern. Rather, FRA believes that any such safety-critical concern would require changes in the way the RRP is implemented and maintained, rather than changes in the processes and procedures outlined in the plan. FRA is specifically requesting public comment, however, on whether an RRP plan would ever need to be amended in a way that is safety-critical, so that it would be impractical for a railroad to submit the amendment 60 days before its proposed effective date. If so, FRA would likely include in a final rule a provision stating that a railroad must provide FRA a safety-critical amendment as soon as possible, instead of 60 days before its proposed effective date.
Proposed § 271.305 would provide that, for cause stated, FRA could reopen consideration of an RRP plan or amendment (in whole or in part) after approval of the plan or amendment. For example, FRA could reopen review if it determines that the railroad has not been complying with its plan/amendment or if information has been made available that was not available when FRA originally approved the plan or amendment. The determination of whether to reopen consideration would be solely within FRA's discretion and made on a case-by-case basis.
Proposed § 271.307 would contain requirements related to a railroad's retention of its RRP plan. A railroad would be required to retain at its system and various division headquarters a copy of its RRP plan and a copy of any amendments to the plan. A railroad may comply with this requirement by making an electronic copy available. The railroad must make the plan and any amendments available to representatives of FRA or States participating under part 212 of this chapter for inspection and copying during normal business hours.
In its tentative agreement document, the RSAC Working Group advised FRA to permit only specific RRP-trained FRA representatives to have the authority to request access to a railroad's RRP plan. FRA is not including this suggestion in the proposed rule, however, because it has concerns regarding how it could be implemented. For example, how could a railroad know whether or not an FRA representative has been trained in RRP? FRA also believes that rule text may not be the appropriate place for such a distinction, as the question of which inspectors have authority to conduct inspections is an internal FRA matter. FRA nevertheless is specifically requesting public comment on both the proposed rule text and the Working Group's suggestion, and the final rule may contain the Working Group's suggestion. FRA would also be interested in any suggested alternate approaches that may be included in the final rule.
In order to help ensure that an RRP is properly implemented and effective, a railroad would need to evaluate its program on an annual basis. Subpart E would contain provisions requiring a railroad to conduct an internal assessment of its RRP.
This section would describe the processes a railroad must use to evaluate its RRP. Because this evaluation is an internal assessment, a railroad could tailor the processes to its specific operations, and FRA would work with the railroad to determine the best method to internally measure the implementation and effectiveness of the railroad's RRP.
Paragraph (a) would require a railroad to conduct an annual (once every calendar year) internal assessment of its RRP. If desired, a railroad could audit
Paragraph (a) of this section would require a railroad, within 30 days of completing its internal assessment, to develop an improvement plan addressing the results of its internal assessment. Paragraph (b) would require the improvement plan to have at least four elements. First, the improvement plan must describe the recommended improvements that address the findings of the internal assessment for fully implementing the railroad's RRP, complying with the elements of the RRP that are already implemented, or achieving the goals identified in the RRP plan pursuant to § 271.203(c). These improvements would include any necessary revisions or updates to the RRP plan, which would have to be made pursuant to the amendment process in proposed § 271.303. Second, the improvement plan must identify by position title the individual who is responsible for carrying out the recommended improvements. Third, the improvement plan must set forth a timeline that establishes when specific and measurable milestones for implementing the recommended improvements would be achieved. Finally, the improvement plan must specify the process for monitoring and evaluating the effectiveness of the recommended improvements. FRA believes that if a railroad's internal assessment improvement plan contains these four elements, the railroad would effectively identify any areas in which the RRP is either improperly implemented or ineffective at reducing risk, and could adequately address those deficiencies.
Paragraph (a) of this section would require a railroad to submit a copy of its internal assessment report to the FRA Associate Administrator for Railroad Safety/Chief Safety Officer. The railroad must submit this report within 60 days of completing its internal assessment. Under paragraph (b), the report must be signed by the railroad's chief official responsible for safety who bears primary managerial authority for implementing that railroad's safety policy and contain at least four elements. First, the report must describe the railroad's internal assessment, including a description of how the railroad satisfied the requirements set forth in proposed § 271.401(b)(1) through (3). Second, the report must describe the findings of the internal assessment. Third, the report must specifically describe the recommended improvements set forth in the railroad's improvement plan pursuant to proposed § 271.403. Fourth, the report must describe the status of the recommended improvements that were set forth in the railroad's recent internal assessment improvement plan and any outstanding recommended improvements from previous internal assessment improvement plans.
This subpart would address FRA's process for conducting audits of the railroad's RRP and establish requirements regarding the actions a railroad must take in response to FRA's audits. FRA's audits would focus on reviewing the railroad's RRP process and ensuring that the railroad is following the processes and procedures described in its FRA-approved RRP plan.
As described in this section, FRA would conduct (or cause to be conducted) external audits of a railroad's RRP. These audits would focus on RRP process, evaluating the railroad's compliance with the RRP elements required by this part, as supported by the railroad's approved RRP plan. Because the railroad's RRP plan and any amendments would have already been approved by FRA, this section would permit FRA to focus on the extent to which the railroad is complying with the processes and procedures in its own plan.
Similar to the review process for RRP plans, FRA would not audit a railroad's RRP in a vacuum. Rather, FRA would communicate with the railroad during the audit and attempt to resolve any issues before its completion. Once the audit is completed, FRA would provide the railroad with written notification of the audit results. For example, these results would identify any areas where the railroad was not properly complying with its RRP plan, any areas that needed to be addressed by the railroad's RRP but were not, or any other areas in which FRA found that the railroad and its program were not in compliance with this part.
This section would establish requirements for railroad improvement plans responding to the results of FRA's external audit. If the results of the audit require the railroad to take any corrective action, paragraph (a) would provide the railroad 60 days to submit for FRA approval an improvement plan addressing any such instances of deficiency or non-compliance. At a minimum, paragraph (b) would require the improvement plan to: (1) Describe the improvements the railroad would implement to address the audit findings; (2) identify by position title the individual who would be responsible for carrying out the improvements necessary to address the audit findings; and (3) contain a timeline describing when specific and measurable milestones for implementing the recommended improvements would be achieved. Specification of milestones is important because it would allow the railroad to determine the appropriate progress of the improvements, while also allowing FRA to gauge the railroad's compliance with its improvement plan.
Under paragraph (c), if FRA does not approve a railroad's improvement plan, FRA would notify the railroad of the plan's specific deficiencies. The railroad would then have no more than 30 days to amend the improvement plan to correct the deficiencies identified by FRA and provide FRA a copy of the amended improvement plan. Paragraph (d) would require a railroad to provide FRA for review, upon the request of the FRA Associate Administrator for Railroad Safety/Chief Safety Office, a status report on the implementation of the improvements contained in the improvement plan.
Appendix A to part 271 would contain a schedule of civil penalties for use in connection with this part. Because such penalty schedules are statements of agency policy, notice and comment are not required prior to their issuance.
Appendix B would contain guidance on how a railroad could comply with § 271.207, which states that a railroad must in good faith consult with and use its best efforts to reach agreement with all of its directly affected employees on the contents of the RRP plan. The appendix begins with a general discussion of the terms “good faith” and “best efforts,” explaining that they are separate terms and that each has a specific and distinct meaning. For example, the good faith obligation is concerned with a railroad's state of mind during the consultation process, and the best efforts obligation is concerned with the specific efforts made by the railroad in an attempt to reach agreement with its directly affected employees. The appendix also explains that FRA will determine a railroad's compliance with the § 271.207 requirements on a case-by-case basis and outlines the potential consequences for a railroad that fails to consult with its directly affected employees in good faith and using best efforts.
The appendix also contains specific guidance on the process a railroad may use to consult with its directly affected employees. This guidance would not establish prescriptive requirements with which a railroad must comply, but would provide a road map for how a railroad may conduct the consultation process. The guidance also distinguishes between employees who are represented by a non-profit employee labor organization and employees who are not, as the processes a railroad may use to consult with represented and non-represented employees could differ significantly. Overall, however, the appendix stresses that there are many compliant ways in which a railroad may choose to consult with its directly affected employees and that FRA believes, therefore, that it is important to maintain a flexible approach to the § 271.207 consultation requirements, so a railroad and its directly affected employees may consult in the manner best suited to their specific circumstances.
Proposed Appendix C would provide railroads and directly affected employees the option to file RRP plans or consultation statements electronically. FRA intends to create a secure document submission site and would need basic information from railroads or directly affected employees before setting up a user's account. In order to provide secure access, information regarding the points of contact would be required. It is anticipated that FRA would be able to approve or disapprove all or part of a program and generate automated notifications by email to a railroad's points of contact. Thus, FRA would want each point of contact to understand that by providing any email addresses, the railroad would be consenting to receive approval and disapproval notices from FRA by email. Railroads that allow notice from FRA by email would gain the benefit of receiving such notices quickly and efficiently. FRA specifically requests public comment on whether to allow electronic submission, and on what electronic formats might be practical and acceptable.
While the proposed appendix would request the names and contact information for two individuals who would be the railroad's or directly affected employees' points of contact and who would be the only individuals allowed access to FRA's document submission site, FRA specifically requests public comment on whether this is a sufficient number of points of contact, or whether more would be necessary, particularly for railroads with multiple non-profit labor organizations.
Those railroads that would choose to submit printed materials to FRA would be required to deliver them directly to the specified address. Some railroads may choose to deliver a CD, DVD, or other electronic storage format to FRA rather than requesting access to upload the documents directly to the secure electronic database. Although that would be an acceptable method of submission, FRA would encourage each railroad to utilize the electronic submission capabilities of the system. Of course, if FRA does not have the capability to read the type of electronic storage format sent, FRA would be able to reject the submission.
FRA may be able to develop a secure document submission site so that confidential materials would be identified and not shared with the general public. However, FRA does not expect the information in an RRP plan to be of such a confidential or proprietary nature, particularly since each railroad is required to share the submitted RRP plan with individuals identified in the service list pursuant to § 271.107(b)(4). RRP records in FRA's possession are also exempted from disclosure under the Freedom of Information Act pursuant to sec. 109(a) of the RSIA, and FRA is proposing in § 271.11 of this NPRM to protect any information compiled or collected solely for the purpose of developing, implementing, or evaluating an RRP from discovery, admission into evidence, or consideration for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, and property damage. Accordingly, FRA does not at this time believe it is necessary to develop a document submission system which addresses confidential materials at this time.
This NPRM has been evaluated in accordance with existing policies and procedures, and determined to be significant under Executive Order 12866, Executive Order 13563, and DOT policies and procedures.
This NPRM directly responds to the Congressional mandate of sec. 103 of the RSIA, which states that FRA shall require each Class I railroad and railroads with inadequate safety performance to establish a railroad safety risk reduction program.
The costs for this proposed regulation basically stem from the requirements to have a fully developed and implemented RRP that is supported by an RRP plan. The primary costs come from the development of an ongoing risk-based HMP, the ongoing evaluation of safety performance, and the safety outreach component of the RRP. In addition, there are costs for the development of a technology implementation plan, the consultation process, and internal assessments.
In analyzing this proposed rule, FRA has applied DOT's updated “Guidance on the Economic Value of a Statistical Life in US Department of Transportation Analyses,” published in March 2013. This policy updated the Value of a Statistical Life (VSL) from $6.2 million to $9.1 million and revised guidance used to compute benefits based on injury and fatality avoidance in each year of the analysis based on forecasts from the Congressional Budget Office of a 1.07 percent annual growth rate in median real wages over a 30 year period (2013–2043). FRA also adjusted wage based labor costs in each year of the analysis accordingly. Real wages represent the purchasing power of nominal wages. Non-wage inputs are not impacted. The primary cost and benefit drivers for this analysis are labor costs and avoided injuries and fatalities, both of which in turn depend on wage rates.
The total cost for this proposed regulation is $18.6 million, undiscounted. The discounted costs over 10 years are $12.7 million, using a 7 percent discount rate, and $15.7 million, using a 3 percent discount rate. The annualized costs are $1.81 million at a 7% discount rate and $1.84 million at a 3% discount rate.
RRPs create benefits through several mechanisms. RRPs identify potential hazards at an early stage, so that expenditures can be made with a view to avoiding the hazards, making expenditures more effective. Because of these characteristics RRPs identify a wide array of potential safety issues, and potential solutions, so that railroads can use their available resources where the effect will be most beneficial per dollar spent. In addition, RRPs help maintain safety gains over time. When railroads adopt countermeasures to safety problems, they may over time lose the focus that made those countermeasures effective. With RRP plans, those safety gains are likely to continue for longer time periods. Because of these characteristics of RRP, safety is improved, while at the same time costs of countermeasures are reduced. RRPs can also be instrumental in addressing hazards that are not well-addressed through conventional safety programs, such as minor injuries and incidents, or risks that occur because safety equipment is not used correctly or continuously.
It is difficult, if not impossible, to segregate totally railroad expenses that go to enhance safety from other railroad expenses. Track, vehicle, and signal maintenance expenses all contribute to safety on a railroad. Every operational and maintenance employee, as well as track or signal inspector, performs duties with few functions that do not work to enhance safety. Every capital expenditure is likely to have a safety component, whether for equipment, right-of-way, signal, or facility. RRPs can increase the safety return on any investment related to the operation and maintenance of the railroad. FRA believes a very conservative estimate of investment expenditures by all Class I railroads is $42.7 billion per year. For purposes of this analysis, FRA assumes that RRPs will not create benefits until they are fully implemented by the railroad, after the third year, and so cannot improve the effectiveness of investments until Year 4, after which they will affect investments through Year 10. Improved effectiveness of investment benefits can reasonably be expected to impact between $188 billion (discounted at 7 percent) and $244 billion (discounted at 3 percent) over the next ten years.
Another way to look at the benefits that might accrue from RRPs is to look at total Class I freight operation-related accident/incident costs. For the time-period 2001–2010 the total number of accidents/incidents (excluding grade crossing incidents and platform accidents/incidents) involving Class I freight railroads was 66,116, which resulted in 6,956 fatalities and 42,289 injuries. For purposes of this NPRM's RIA, FRA used the averages from 2008–2010 which had 5,325 incidents, 602 fatalities and 3,428 injuries. Of course, these accidents/incidents also caused damage to other property, delays on both railroads and highways, response costs, and many other costs. Applying the same methodology used in other analyses, FRA has found that the total societal cost of a serious accident/incident is at least 1.97 times the fatality costs.
FRA analyzed what percentage of the potential accident reduction benefit pools would have to be saved in order for the NPRM to have accident reduction benefits at least equal to costs that apply to existing Class I railroads. The results are presented in Table 2 below, which shows the percentage of the total benefit pools that would need to be saved in order for the rule to break even. FRA believes that such savings are more than attainable. Please note that the rule would break even if it met either percentage by itself, and that the rule would not need to meet both percentages.
With the new VSL policy, DOT also recommends a sensitivity analysis be considered using a VSL of $5.2 million and $12.9 million. Using a VSL of $5.2 million, FRA estimates the break-even point is less than 3 hundredths of a percent, and using a VSL of $12.9 million the break-even point is approximately 1.1 hundredths of a percent.
In conclusion, FRA is confident that the accident reduction and cost effectiveness benefits together would justify the $12.7 million (discounted at 7 percent) to $15.7 million (discounted at 3 percent) implementation cost over the first ten years of the rule as proposed.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
For the railroad industry over a 10-year period, FRA estimates that the total cost for the proposed rule will be $18.6 million, undiscounted; $12.7 million, discounted at 7 percent; or $15.7 million, discounted at 3 percent.
A Class II or III railroad may be brought under FRA's proposed RRP regulation if FRA determines that the railroad has inadequate safety performance. This determination would be made according to proposed § 271.13. Based on an initial review and evaluation, FRA estimates that approximately 10 railroads that are considered small entities for the purpose of this analysis would be found to have inadequate safety performance in the initial year of the rule, and would therefore be required to comply with FRA's RRP requirements. On average, FRA estimates that five additional Class III railroads with inadequate safety performance would be added incrementally per annum after the first full year of implementation, and that the number of railroads with inadequate safety performance would reach a maximum of 40 to 45 railroads around the tenth year of the rule. Together, these railroads do not compose a substantial number of the 629 Class III railroads, which potentially fall under this proposed rule and would be evaluated for inadequate safety performance, and a minor percentage of the railroad operations impacted directly by this proposed regulation, as measured by total employees. Thus, a very few number of small entities in this sector would be impacted. In order to get a better understanding of the total costs for the entire freight railroad industry (which forms the basis for the estimates in this IRFA), or for more cost detail on any specific requirement, please see the Regulatory Impact Analysis (RIA) that FRA has placed in the docket for this rulemaking.
In accordance with the Regulatory Flexibility Act, an IRFA must contain:
1. A description of the reasons why action by the agency is being considered.
2. A succinct statement of the objectives of, and the legal basis for, the proposed rule.
3. A description—and, where feasible, an estimate of the number—of small
4. A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.
5. Identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.
FRA has proposed this part 271 in order to comply with sec. 103 and sec. 109 of the RSIA. The RSIA states, in part, that FRA shall require each Class I railroad and railroad with “inadequate safety performance” to establish a railroad safety risk reduction program.
The purpose of this proposed rule is to improve railroad safety through structured, proactive processes and procedures developed and implemented by railroad operators. The proposed rule would require a railroad to establish an RRP that systematically evaluates railroad safety hazards on its system and manages those risks in order to reduce the number and rates of railroad accidents/incidents, injuries, and fatalities.
The proposed rule would prescribe minimum Federal safety standards for the preparation, adoption, and implementation of RRPs. The proposed rule does not restrict railroads from adopting and enforcing additional or more stringent requirements not inconsistent with this proposed rule.
The Secretary has delegated the responsibility to carry out his responsibilities under both sec. 103 and sec. 109 of RSIA, as well as the general responsibility to conduct rail safety rulemakings, codified at 49 U.S.C. 20103, to the Administrator of FRA.
The proposed rulemaking would add to FRA's regulations a new part 271. Part 271 would satisfy the RSIA mandate that FRA require safety risk reduction programs for Class I freight railroads and railroads with inadequate safety performance.
The universe of the entities considered in an IRFA generally includes only those small entities that can reasonably expect to be directly regulated by the proposed action. Small railroads are the types of small entities potentially affected by this proposed rule.
A “small entity” is defined in 5 U.S.C. 601(3) as having the same meaning as “small business concern” under sec. 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Title 49 U.S.C. 601(4) likewise includes within the definition of small entities non-profit enterprises that are independently owned and operated, and are not dominant in their field of operation.
The U.S. Small Business Administration (SBA) stipulates in its size standards that the largest a “for-profit” railroad business firm may be, and still be classified as a small entity, is 1,500 employees for “line haul operating railroads” and 500 employees for “switching and terminal establishments.” Additionally, 5 U.S.C. 601(5) defines as small entities governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.
Federal agencies may adopt their own size standards for small entities in consultation with SBA and in conjunction with public comment. Pursuant to that authority, FRA has published a final Statement of Agency Policy that formally establishes small entities or small businesses as being railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR 1201.1–1, which is $20 million or less in inflation-adjusted annual revenues, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less.
Class I freight railroads and railroads with inadequate safety performance would have to comply with all of the proposed provisions of part 271. However, the amount of effort to comply with the proposed rule is commensurate with the size of the entity.
In the universe of railroads for potential compliance under this proposed rule, there are 7 Class I railroads, 10 Class II railroads (1 of which is classified as a passenger railroad that would be excepted from the proposed rule), and 629 Class III freight railroads. Railroads with tourist operations are excluded, and these comprise approximately 90 of the total 719 Class III railroads.
To identify the non-Class I railroads that must comply with the proposed rule, FRA will annually conduct a two-phase analysis to determine which railroads have inadequate safety performance. This is accomplished by the following: (1) A statistically-based quantitative analysis of fatalities, FRA-reportable injuries/illnesses, FRA-reportable accidents/incidents, and FRA safety violations; and (2) a qualitative assessment that includes input from affected railroads and their employees. (
As FRA's initial inadequate safety performance analysis would occur at least one year after an RRP final rule goes into effect, it is impossible to tell how many railroads with inadequate safety performance would be required to comply with the RRP regulation, and consequently how many of those might be small businesses. However, using a recent 3-year rolling average of safety data to test the selection analytical process, and accounting for those that might seek relief through the qualitative review process, FRA would expect between 7 and 13 Class III railroads to qualify initially for the program, or a simple average of 10; and between 3 and 7, incrementally, per annum thereafter, or a simple average of 5. FRA expects the number of inadequate safety performance railroads to grow each year by 4 or 5 to a maximum of 40 to 45 by year 9 or 10, at which point it should flatten out or actually decline. This declining involvement is due to several factors: (1) Safety performance will improve; (2) after 7 years, some railroads will seek and receive relief
FRA intends to provide assistance to railroads, including small business entities, in the development of their RRPs, starting at the planning phase and continuing through the implementation phase. The proposed rule is also scalable in nature, and FRA would provide assistance to those railroads so that the scope and content of their RRPs are proportionate to their size and the nature of their operation.
As indicated above, FRA would assist a small entity in preparing its RRP program and plan. FRA anticipates that the RRP plan for such an entity would be a very concise and brief document.
FRA requests comments on these findings and conclusions.
Some railroads use contractors to perform many different functions on their railroads. For some of these railroads, contractors perform safety-related functions, such as operating trains. For the purpose of assessing the impact of an RRP, contractors fall into two groups: Larger contractors who perform a primary operating or maintenance function for the railroads, and smaller contractors who perform ancillary functions to the primary operations. Larger contractors are typically large private companies, such as Sperry Rail Service, or part of an international conglomerate such as Balfour Beatty. Smaller contractors may perform such duties as brush clearing, painting facilities, etc.
Safety-related policies, work rules, guidelines, and regulations are imparted to the small contractors today as part of their contractual obligations and qualification to work on the Class I freight railroads, and potentially to work for railroads with inadequate safety performance. FRA sees minimal additional burden to imparting the same type of information under each railroad's RRP. A very small administrative burden may result.
Under the proposed rule, contractors (small or large) who provide significant safety-related services are not required to do anything under the rule. While the proposed rule requires the railroad to involve the persons that provide significant safety-related services in the railroad's RRP, it doesn't require the entity to do any training. Thus, any burdens imposed on contractors would be indirect or taken into account in the contract with the pertinent railroad or both. FRA requests comment on these findings and conclusions.
There are reporting, recordkeeping, and compliance costs associated with the proposed regulation.
FRA believes that the added burden is marginal due to the proposed NPRM requirements. The total 10-year cost of this proposed rulemaking is $18.6 million, of which FRA estimates $3.2 million or less will be attributable to small entities ($3.2 million in current dollars, $2 million at a 7-percent discount rate, or $2.6 million at a 3-percent discount rate.) Based on FRA's RIA, which has been placed in the docket for this proposed rulemaking, the average railroad with inadequate safety performance would incur an average of $13,500 (non-discounted) of burden per year. If on average railroads with inadequate safety performance were in the RRP for eight years, then the life-time cost would be approximately $108,000. Previously, FRA sampled small railroads and found that revenue averaged approximately $4.7 million (not discounted) in 2006. One percent of average annual revenue per small railroad, or $47,000, is more than three times the average annual cost that these railroads will incur because of this proposed rule. FRA realizes that some railroads will have lower revenue than $4.7 million. However, FRA believes that this average provides a good representation of the small railroads, in general.
Overall, FRA believes that the proposed regulation would not be a significant economic burden for small entities. However, due to the small number of small railroads that are estimated to be impacted by this proposed rule, the cost per railroad could be found to be significant. For a thorough presentation of cost estimates, please refer to the RIA, which has been placed in the docket for this proposed rulemaking. FRA expects that most of the skills necessary to comply with the proposed regulation would be professional hazard assessment personnel, and recordkeeping and reporting personnel.
The following section outlines the potential additional burden on small railroads for each subpart of the proposed rule:
The policy, purpose, and definitions outlined in subpart A, alone, would not impose a significant burden on small railroads. However, there is the small requirement for notifying employees of the railroad that FRA has found that the railroad may have inadequate safety performance. This subpart of the proposed rule would impose less than 1 percent of the total burden for small entities.
Subpart B of the proposed rule would have a more or less proportional effect directly related to the size and complexity of a railroad. This subpart of the proposed rule would impose approximately 63 percent of the total burden for small entities. The proposed requirements in this subpart describe what must be developed and placed in the RRP to properly implement the RRP. More specifically, it requires the development of the risk-based hazard analysis, risk-based hazard management processes, and technology implementation plans. Because of the scalable nature of the proposed rule, the requirements of an RRP would be much less complex for a small railroad than they would be for a Class I railroad. This is due to several characteristics of small railroads, such as the concentrated geography of operation in a small area, the short distance of operation, and a non-fragmented and non-diffused work force (in other words, most employees of a small railroad are located in one place). Hence, the number and types of hazards for a small railroad should be limited. Also, such RRP requirements as technology plans should not be burdensome. A small railroad is very limited in the investments it can place in new technologies, and what they do invest in would quite likely be a tried-and-true technology that has been thoroughly tested elsewhere.
Subpart C of the proposed rule would have a more or less proportional effect directly related to the size and complexity of a railroad. In other words, it would have less impact on small entities than it would on Class I railroads. This subpart of the proposed rule would impose approximately 23 percent of the total burden for small
Subpart D of the proposed rule would impose less than 1 percent of the total burden for small entities. The proposed requirements of this subpart are for the initial delivery and review of the RRP plan, as well as delivery of any ongoing amendments. Since this is initially only expected to have 10 small railroads submitting plans for approval and approximately 5 railroads each year thereafter, this subpart should have a very small economic impact.
Subpart E of the proposed rule would impose approximately 12 percent of the total burden for small entities. This burden is for the ongoing cost for the small railroads to perform an internal assessment and report on internal audits on annual basis. As noted above, initially very few small railroads would be performing internal assessments, which would serve to minimize the economic impact on small railroads.
Subpart F of the proposed rule would impose approximately 1 percent of the total burden for small entities. This burden is for the ongoing cost for the small railroads to host an external audit by FRA or its designees on a periodic basis. This includes the burden to produce an improvement plan if such were required as a result of the external audit findings. FRA does not expect more than five of these railroads to receive an external audit for any given year.
The railroad industry has several significant barriers to entry, such as the need to own or otherwise obtain access to rights-of-way and the high capital expenditure needed to purchase a fleet, as well as track and equipment. Furthermore, the small railroads under consideration would potentially be competing only with the trucking industry and typically deal with the transport of commodities or goods that are not truck-friendly. Thus, while this proposed rule would have an economic impact on Class I freight railroads and railroads with inadequate safety performance, it should not have an impact on the competitive position of small railroads. FRA requests comment on these findings and conclusions.
FRA is not aware of any relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule. In fact, the rule would support most other safety regulations for railroad operations.
The Federal Transit Administration (FTA) first implemented requirements similar to an RRP in 49 CFR part 659 in 1995, and its requirements can be much more systemic and encompassing. However, FTA's part 659 program applies to only rapid transit systems, or portions thereof, that are not subject to FRA's rules.
FRA invites all interested parties to submit data and information regarding the potential economic impact on small entities that would result from the adoption of the proposals in this NPRM. As noted above FRA has estimated that railroads with inadequate safety performance would incur less than 12 percent of the total cost of this proposed rule. Based on FRA's RIA, the average railroad with inadequate safety performance would incur an average of $13,500 (non-discounted) of burden per year. If on average railroads with inadequate safety performance were in the RRP for eight years, then the life-time cost would be approximately $108,000. Previously, FRA sampled small railroads and found that revenue averaged approximately $4.7 million (not discounted) in 2006. One percent of average annual revenue per small railroad, or $47,000, is more than three times the average annual cost that these railroads will incur because of this proposed rule. FRA realizes that some railroads will have lower revenue than $4.7 million. However, FRA believes that this average provides a good representation of the small railroads, in general. FRA specifically requests comments as to whether small railroads would incur a significant economic impact from this proposed rule. FRA will consider all comments received in the public comment process when making a final determination regarding the economic impact on small entities.
Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.
This NPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. FRA has determined that the proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. In addition, FRA has determined that this proposed rule will not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
This NPRM proposes to add part 271, Risk Reduction Programs. FRA is not aware of any State having regulations similar to proposed part 271. However, FRA notes that this part could have preemptive effect by the operation of law under a provision of the former Federal Railroad Safety Act of 1970, repealed and codified at 49 U.S.C. 20106 (Sec. 20106). Sec. 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the
In sum, FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this proposed rule has no federalism implications, other than preemption of State laws under 49 U.S.C. 20106 and 20119. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this proposed rule is not required.
The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or 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. This rulemaking is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States.
The information collection requirements in this proposed rule are being submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The estimates in this table are based upon FRA's general experience and expertise regarding the railroad industry and the development of plans. All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C.
Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Mr. Robert Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also be submitted via email to Mr. Brogan or Ms. Toone at the following address:
OMB is required to make a decision concerning the collection of information requirements contained in this proposed rule between 30 and 60 days after publication of this document in the
FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the
FRA has evaluated this proposed rule in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321
In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this proposed rule is not a major Federal action significantly affecting the quality of the human environment.
Pursuant to sec. 201 of the Unfunded Mandates Reform Act of 1995 (Public Law 104–4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. For the year 2010, this monetary amount of $100,000,000 has been adjusted to $143,100,000 to account for inflation. This proposed rule would not result in the expenditure of more than $143,100,000 by the public sector in any one year, and thus preparation of such a statement is not required.
Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355, May 22, 2001. Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
Penalties; Railroad safety; Reporting and recordkeeping requirements; and Risk reduction.
In consideration of the foregoing, FRA proposes to add part 271 to chapter II, subtitle B of title 49, Code of Federal Regulations, to read as follows:
49 U.S.C. 20103, 20106–20107, 20118–20119, 20156, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.
(a) The purpose of this part is to improve railroad safety through structured, proactive processes and procedures developed and implemented by railroads. Each railroad subject to this part must establish a Risk Reduction Program (RRP) that systematically evaluates railroad safety hazards on its system and manages the risks associated with those hazards in order to reduce the number and rates of railroad accidents/incidents, injuries, and fatalities.
(b) This part prescribes minimum Federal safety standards for the preparation, adoption, and implementation of RRPs. This part does not restrict railroads from adopting and enforcing additional or more stringent requirements not inconsistent with this part.
(c) This part prescribes the protection of information generated solely for the purpose of developing, implementing, or evaluating an RRP under this part.
(d) An RRP required by this part is not intended to address and should not address the safety of employees while performing inspections, tests, and maintenance, except where FRA has already addressed workplace safety issues, such as blue signal protection in part 218 of this chapter. FRA does not intend to approve any specific portion of an RRP plan that relates to employee working conditions.
(a) Except as provided in paragraph (b) of this section, this part applies to—
(1) Class I railroads;
(2) Railroads determined to have inadequate safety performance pursuant to § 271.13; and
(3) Railroads that voluntarily comply with the requirements of this part pursuant to § 271.15.
(b) This part does not apply to:
(1) Rapid transit operations in an urban area that are not connected to the general railroad system of transportation;
(2) Tourist, scenic, historic, or excursion operations, whether on or off the general railroad system of transportation;
(3) Operation of private cars, including business/office cars and circus trains;
(4) Railroads that operate only on track inside an installation that is not part of the general railroad system of transportation (
(5) Commuter or intercity passenger railroads that are subject to Federal system safety program requirements.
As used in this part only—
(1) Any impact between railroad on-track equipment and a highway user at a highway-rail grade crossing. The term “highway user” includes automobiles, buses, trucks, motorcycles, bicycles, farm vehicles, pedestrians, and all other modes of surface transportation (motorized and un-motorized);
(2) Any collision, derailment, fire, explosion, act of God, or other event involving operation of railroad on-track equipment (standing or moving) that results in reportable damages greater than the current reporting threshold identified in part 225 of this chapter to railroad on-track equipment, signals, track, track structures, and roadbed;
(3) Each death, injury, or occupational illness that is a new case and meets the general reporting criteria listed in § 225.19(d)(1) through (6) of this chapter if any event or exposure arising from the operation of a railroad is a discernible cause of a significant aggravation to a pre-existing injury or illness. The event or exposure arising from the operation of a railroad need only be one of the discernible causes; it need not be the sole or predominant cause.
(1) Any form of non-highway ground transportation that runs on rails or electromagnetic guideways, including—
(i) Commuter or other short-haul rail passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979; and
(ii) High speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads, but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation; and
(2) A person or organization that provides railroad transportation, whether directly or by contracting out operation of the railroad to another person.
(a) A person subject to a requirement of this part may petition the Administrator for a waiver of compliance with such requirement. The filing of such a petition does not affect that person's responsibility for compliance with that requirement while the petition is being considered.
(b) Each petition for a waiver under this section shall be filed in the manner and contain the information required by part 211 of this chapter.
(c) If the Administrator finds that a waiver of compliance is in the public interest and is consistent with railroad safety, the Administrator may grant the waiver subject to any conditions the Administrator deems necessary.
(a) Any person that violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $650 and not more than $25,000 per violation, except that: Penalties may be assessed against individuals only for willful violations, and, where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to individuals, or has caused death or injury, a penalty not to exceed $105,000 per violation may be assessed. Each day a violation continues shall constitute a separate offense. Any person that knowingly and willfully falsifies a record or report required by this part may be subject to criminal penalties under 49 U.S.C. 21311 (formerly codified in 45 U.S.C. 438(e)). Appendix A to this part contains a schedule of civil penalty amounts used in connection with this part.
(b) Although the requirements of this part are stated in terms of the duty of a railroad, when any person, including a contractor or subcontractor to a railroad, performs any function covered by this part, that person (whether or not a railroad) shall perform that function in accordance with this part.
(a) Any information (including plans, reports, documents, surveys, schedules, lists, or data) compiled or collected for the sole purpose of developing, implementing, or evaluating an RRP under this part, including a railroad carrier's analysis of its safety risks conducted pursuant to § 271.103(b) and a statement of the mitigation measures with which it would address those risks created pursuant to § 271.103(c), shall not be subject to discovery, admitted into evidence, or considered for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage.
(b) This section does not affect the discovery, admissibility, or consideration for other purposes of information (including plans, reports, documents, surveys, schedules, lists, or data) compiled or collected for a purpose other than that specifically identified in paragraph (a) of this section. Such information shall continue to be discoverable, admissible into evidence, or considered for other purposes if it was discoverable, admissible, or considered for other purposes prior to the existence of this section. This includes such information that either:
(1) Existed prior to [365 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE
(2) Was compiled or collected prior to [365 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL RULE
(3) Is compiled or collected after [365 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE
(c) State discovery rules and sunshine laws that could be used to require the disclosure of information protected by paragraph (a) of this section are preempted.
(a)
(i) Railroads excluded from this part under § 271.3(b);
(ii) Railroads already required to comply with this part;
(iii) Railroads that are voluntarily complying with this part under § 271.15; and
(iv) Except as provided in paragraph (a)(2) of this section, new start-up railroads that have reported accident/incident data to FRA pursuant to part 225 of this chapter for fewer than three years.
(2) Notwithstanding paragraph (a)(1)(iv) of this section, railroads formed through amalgamation of operations (for example, railroads formed through consolidations, mergers, or acquisitions of control) will be included in the analysis using the combined data of the pre-amalgamation entities.
(b)
(i) A railroad's number of on-duty employee fatalities during the 3-year period, calculated using “Worker on Duty-Railroad Employee (Class A)” information reported on FRA Form 6180.55a pursuant to FRA's accident/incident reporting regulations in part 225 of this chapter;
(ii) A railroad's on-duty employee injury/illness rate, calculated using “Worker on Duty-Railroad Employee (Class A)” information reported on FRA Forms 6180.55a and 6180.55 pursuant to FRA's accident/incident reporting regulations in part 225 of this chapter. This rate will be calculated using the following formula, which gives the rate of employee injuries and occupational illnesses per 200,000 employee hours over a 3-year period:
(iii) A railroad's rail equipment accident/incident rate, calculated using information reported on FRA Forms 6180.54 and 6180.55 pursuant to FRA's accident/incident reporting regulations in part 225 of this chapter. This rate will be calculated using the following formula, which gives the rate of rail equipment accidents/incidents per 1,000,000 train miles over a 3-year period:
(iv) A railroad's violation rate. This rate will be calculated using the following formula, which gives the rate of violations issued by FRA to a railroad per 1,000,000 train miles over a 3-year period:
Violation Rate = Total FRA Violations over a 3-year period ÷ (Total Train Miles over a 3-year period/1,000,000)
(2)
(i) A railroad has one or more fatality; or
(ii) A railroad is at or above the 95th percentile in at least two of three factors described in paragraphs (b)(1)(ii) through (iv) of this section.
(c)
(1)
(i) No later than 15 days after receiving FRA's written notice, a railroad shall notify its employees of FRA's written notice. This employee notification shall be posted at all locations where the railroad reasonably expects its employees to report and to have an opportunity to observe the notice. The notification shall be posted and remain continuously displayed until 45 days after FRA's initial written notice. Employees who do not have a regular on-duty point for reporting to work shall be notified by other means, in accordance with the railroad's standard practice for communicating with employees. The notification shall inform railroad employees that they may confidentially submit comments to FRA regarding the railroad's safety performance for a period of 45 days following FRA's initial written notice, and shall contain instructions for doing so.
(ii) No later than 45 days after receiving FRA's written notice, a railroad may provide FRA documentation supporting any claims that the railroad does not have inadequate safety performance.
(2)
(d)
(e)
(f)
(a)
(b)
(c)
(d)
(a)
(1) A risk-based hazard management program, as described in § 271.103;
(2) A safety performance evaluation component, as described in § 271.105;
(3) A safety outreach component, as described in § 271.107;
(4) A technology analysis and technology implementation plan, as described in § 271.109; and
(5) RRP implementation and support training, as described in § 271.111.
(b)
(c)
(d)
(a)
(2) A risk-based HMP shall be fully implemented (
(b)
(1) Identify hazards by analyzing:
(i) Aspects of the railroad's system, including any operational changes, system extensions, or system modifications; and
(ii) Accidents/incidents, injuries, fatalities, and other known indicators of hazards;
(2) Calculate risk by determining and analyzing the likelihood and severity of potential events associated with identified risk-based hazards; and
(3) Compare and prioritize the identified risks for mitigation purposes.
(c)
(i) Mitigating or eliminating aspects of a railroad's system that increase risks identified in the risk-based hazard analysis; and
(ii) Enhancing aspects of a railroad's system that decrease risks identified in the risk-based hazard analysis.
(2) A railroad may use pilot projects, including pilot projects conducted by other railroads, to determine whether quantitative data suggests that a particular mitigation strategy has potential to succeed on a full-scale basis.
(a)
(b)
(1) Continuous monitoring of operational processes and systems (including any operational changes, system extensions, or system modifications);
(2) Periodic monitoring of the operational environment to detect changes that may generate new hazards;
(3) Investigations of accidents/incidents, injuries, fatalities, and other known indicators of hazards;
(4) Investigations of reports regarding potential non-compliance with Federal railroad safety laws or regulations, railroad operating rules and practices, or mitigation strategies established by the railroad; and
(5) A reporting system through which employees can report safety concerns (including, but not limited to, hazards, issues, occurrences, and incidents) and propose safety solutions and improvements.
(c)
(1) Evaluate the overall effectiveness of the railroad's RRP in reducing the number and rates of railroad accidents/incidents, injuries, and fatalities;
(2) Evaluate the effectiveness of the railroad's RRP in meeting the goals described by its RRP plan (
(3) Evaluate the effectiveness of risk mitigations in reducing the risk associated with an identified hazard. Any hazards associated with ineffective mitigation strategies shall be reevaluated through the railroad's risk-based HMP, as described in § 271.103; and
(4) Identify new, potential, or previously unknown hazards, which shall then be evaluated by the railroad's risk-based HMP, as described in § 271.103.
(a)
(1) Convey safety-critical information;
(2) Explain why RRP-related safety actions are taken; and
(3) Explain why safety procedures are introduced or changed.
(b)
(a)
(b)
(c)
(d)
(a) A railroad shall provide RRP training to each employee, including an employee of any person identified by the railroad's RRP plan pursuant to § 271.205(a)(3) as utilizing or performing significant safety-related services on the railroad's behalf, who has significant responsibility for implementing and supporting the railroad's RRP. This training shall help ensure that all personnel with significant responsibility for implementing and supporting the RRP understand the goals of the program, are familiar with the elements of the railroad's program, and have the requisite knowledge and skills to fulfill their responsibilities under the program.
(b) A railroad shall keep a record of training conducted under this section and update that record as necessary.
(c) Training under this section may include, but is not limited to, interactive computer-based training, video conferencing, or formal classroom training.
A railroad shall adopt and implement its RRP through a written RRP plan containing the elements described in this subpart. A railroad's RRP plan shall be approved by FRA according to the requirements contained in subpart D of this part.
(a)
(b)
(1) The railroad's safety philosophy and safety culture;
(2) How the railroad promotes improvements to its safety culture;
(3) The roles and responsibilities of railroad personnel (including management) within the railroad's RRP; and
(4) How any person that utilizes or provides significant safety-related services to a railroad (including host railroads, contract operators, shared track/corridor operators, or other contractors) will support and participate in the railroad's RRP.
(c)
(a) An RRP plan shall contain a description of the characteristics of the railroad's system. At a minimum, the system description shall:
(1) Support the identification of hazards by establishing a basic understanding of the scope of the railroad's system;
(2) Include components briefly describing the railroad's history, operations, scope of service, maintenance, physical plant, and system requirements; and
(3) Identify all persons that utilize or perform significant safety-related services on the railroad's behalf (including entities such as host railroads, contract operations, shared track/corridor operators, or other contractors).
(b) [Reserved]
(a)
(2) A railroad that consults with a non-profit employee labor organization is considered to have consulted with the directly affected employees represented by that organization.
(3) A Class I railroad shall meet no later than [240 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE
(4) A railroad determined to have inadequate safety performance shall meet no later than 30 days following FRA's notification with its directly affected employees to discuss the consultation process. The inadequate safety performance railroad shall notify the directly affected employees of this meeting no less than 15 days before it is scheduled.
(5) A railroad that the STB reclassifies or newly classifies as a Class I railroad shall meet with its directly affected employees to discuss the consultation process no later than 30 days following the effective date of the classification or reclassification. The reclassified or newly classified Class I railroad shall notify the directly affected employees of this meeting no less than 15 days before it is scheduled.
(6) A voluntarily-compliant railroad shall in good faith consult with, and use its best efforts to reach agreement with, all of its directly affected employees, including any non-profit labor organization representing a class or craft of directly affected employees, on the contents of the RRP plan. However, as there is no deadline for a voluntarily-compliant railroad to file an RRP plan with FRA, there is also no requirement for a voluntarily-compliant railroad to meet with its directly affected employees within a certain timeframe.
(7) Appendix B to this part contains guidance on how a railroad might comply with the requirements of this section.
(b)
(1) A detailed description of the process the railroad utilized to consult with its directly affected employees;
(2) If the railroad was not able to reach agreement with its directly affected employees on the contents of its RRP plan, identification of any known areas of non-agreement and an explanation why it believes agreement was not reached;
(3) If the RRP plan would affect a provision of a collective bargaining agreement between the railroad and a non-profit employee labor organization, identification of any such provision and an explanation how the RRP plan would affect it; and
(4) A service list containing the names and contact information for the international/national president of any non-profit employee labor organization representing a class or craft of the railroad's directly affected employees and any directly affected employee not represented by a non-profit employee labor organization who significantly participated in the consultation process. If an international/national president did not participate in the consultation process, the service list shall also contain the name and contact information for a designated representative who participated on his or her behalf. When a railroad submits its RRP plan and consultation statement to FRA, it shall also send a copy of these documents to all individuals identified in the service list. A railroad may send the documents to the identified individuals via electronic means or utilizing other service means reasonably calculated to succeed.
(c)
(2) As provided in § 271.301(a)(4), a railroad's directly affected employees have 60 days following the railroad's submission of a proposed RRP plan to submit the statement described in paragraph (c)(1) of this section.
A railroad's RRP plan shall include a description of the process the railroad will use to consult with its directly affected employees on any subsequent substantive amendments to the railroad's system safety program. The requirements of this paragraph do not apply to non-substantive amendments (
(a)
(1) The processes the railroad will use to identify hazards and the risks associated with those hazards;
(2) The sources the railroad will use to support the ongoing identification of
(3) The processes the railroad will use to compare and prioritize identified risks for mitigation purposes.
(b)
(1) Identifying and selecting mitigation strategies; and
(2) Monitoring an identified hazard through the mitigation of the risk associated with that hazard.
An RRP plan shall describe a railroad's processes for measuring its safety culture pursuant to § 271.105(a), monitoring safety performance pursuant to § 271.105(b), and conducting safety assessments pursuant to § 271.105(c).
An RRP plan shall describe a railroad's process for communicating safety information to railroad personnel and management pursuant to § 271.107.
(a) An RRP plan shall contain a description of the railroad's processes for:
(1) Conducting a technology analysis pursuant to § 271.109(b); and
(2) Developing a technology implementation plan pursuant to § 271.109(c).
(b) [Reserved]
(a) An RRP plan shall contain a training plan describing the railroad's processes, pursuant to § 271.111, for training employees with significant responsibility for implementing and supporting the RRP (including employees of a person identified pursuant to § 271.205(a)(3) as utilizing or performing significant safety-related services on the railroad's behalf who have significant responsibility for implementing and supporting the railroad's RRP).
(b) The training plan shall describe the frequency and content of the RRP training for each position or job function identified pursuant to § 271.223(b)(3) as having significant responsibilities for implementing the RRP.
(a) An RRP plan shall describe the railroad's process for conducting an internal assessment of its RRP pursuant to subpart E of this part. At a minimum, this description shall contain the railroad's processes used to:
(1) Conduct an internal assessment of its RRP;
(2) Internally report the results of its internal assessment to railroad senior management; and
(3) Develop improvement plans, including developing and monitoring recommended improvements (including any necessary revisions or updates to the RRP plan) for fully implementing the railroad's RRP, complying with the implemented elements of the RRP plan, or achieving the goals identified in the railroad's RRP plan pursuant to § 271.203(c).
(b) [Reserved]
(a) An RRP plan shall describe how the railroad will implement its RRP. A railroad may implement its RRP in stages, so long as the entire RRP is fully implemented within 36 months of FRA's approval of the plan.
(b) At a minimum, a railroad's implementation plan shall:
(1) Cover the entire implementation period;
(2) Contain a timeline describing when certain implementation milestones will be achieved. Implementation milestones shall be specific and measurable;
(3) Describe the roles and responsibilities of each position or job function that has significant responsibility for implementing the railroad's RRP or any changes to the railroad's RRP (including any such positions or job functions held by an entity or contractor that utilizes or performs on the railroad's behalf significant safety-related services); and
(4) Describe how significant changes to the RRP may be made.
(a)
(1) The signature, name, title, address, and telephone number of the chief official responsible for safety and who bears the primary managerial authority for implementing the submitting railroad's safety policy. By signing, this chief official is certifying that the contents of the RRP plan are accurate and that the railroad will implement the contents of the program as approved by FRA;
(2) The contact information for the primary person responsible for managing the RRP;
(3) The contact information for the senior representatives of the persons that the railroad has determined utilize or provide significant safety-related services (including host railroads, contract operators, shared track/corridor operators, and other contractors); and
(4) As required by § 271.207(b), a statement describing how it consulted with its directly affected employees on the contents of its RRP plan. Directly affected employees have 60 days following the railroad's submission of its proposed RRP plan to file a statement in accordance with § 271.207(c).
(b)
(2) FRA will notify the primary contact person of the submitting railroad in writing whether FRA has approved the proposed plan and, if not approved, the specific points in which the RRP plan is deficient. FRA will also provide this notification to each individual identified in the service list accompanying the consultation statement required under § 271.207(b)(4).
(3) If FRA does not approve an RRP plan, the submitting railroad shall amend the proposed plan to correct all identified deficiencies and shall provide FRA a corrected copy no later than 60
(c)
(a)
(b)
(2) If the proposed amendment is limited to adding or changing a name, title, address, or telephone number of a person, FRA approval is not required under the process of this section, although the railroad shall still file the amended RRP plan with FRA's Associate Administrator for Railroad Safety/Chief Safety Officer. These proposed amendments may be implemented by the railroad upon filing with FRA. All other proposed amendments must comply with the formal approval process described by this section.
(c)
(2) If FRA has not notified the railroad by the proposed effective date of the amendment whether the amendment has been approved or not, the railroad may implement the amendment, subject to FRA's decision.
(3) If a proposed RRP plan amendment is not approved by FRA, no later than 60 days following the receipt of FRA's written notice, the railroad shall either provide FRA a corrected copy of the amendment that addresses all deficiencies noted by FRA or notice that the railroad is retracting the amendment.
Following approval of an RRP plan or an amendment to such a plan, FRA may reopen consideration of the plan or amendment, in whole or in part, for cause stated.
(a)
(b)
(a) Beginning with the first calendar year after the calendar year in which FRA approves a railroad's RRP plan pursuant to § 271.301(b), the railroad shall annually (
(b) The internal assessment shall determine the extent to which the railroad has:
(1) Achieved the implementation milestones described in its RRP plan pursuant to § 271.223(b);
(2) Complied with the implemented elements of the approved RRP plan;
(3) Achieved the goals described in its RRP plan pursuant to § 271.203(c);
(4) Implemented previous internal assessment improvement plans pursuant to § 271.403; and
(5) Implemented previous external audit improvements plans pursuant to § 271.503.
(c) A railroad shall ensure that the results of its internal assessments are internally reported to railroad senior management.
(a) Within 30 days of completing its internal assessment, a railroad shall develop an improvement plan that addresses the findings of its internal assessment.
(b) At a minimum, a railroad's improvement plan shall:
(1) Describe recommended improvements (including any necessary revisions or updates to the RRP plan, which would be made through the amendment process described in § 271.303) that address the findings of the internal assessment for fully implementing the railroad's RRP, complying with the implemented elements of the RRP plan, achieving the goals identified in the railroad's RRP plan pursuant to § 271.203(c), and implementing previous internal assessment improvement plans and external audit improvement plans;
(2) Identify by position title the individual who is responsible for carrying out the recommended improvements;
(3) Contain a timeline describing when specific and measurable milestones for implementing the recommended improvements will be achieved; and
(4) Specify processes for monitoring the implementation and evaluating the effectiveness of the recommended improvements.
(a) Within 60 days of completing its internal assessment, a railroad shall submit a copy of an internal assessment report to the FRA Associate Administrator for Railroad Safety/Chief Safety Officer at Mail Stop 25, 1200 New Jersey Avenue SE., Washington, DC, 20590.
(b) This report shall be signed by the railroad's chief official responsible for safety and who bears primary managerial authority for implementing the railroad's safety policy. The report shall include:
(1) A description of the railroad's internal assessment;
(2) The findings of the internal assessment;
(3) A specific description of the recommended improvements contained in the railroad's internal assessment improvement plan, including any amendments that would be made to the railroad's RRP plan pursuant to § 271.303; and
(4) The status of the recommended improvements contained in the railroad's internal assessment improvement plan and any outstanding recommended improvements from previous internal assessment improvement plans.
FRA will conduct (or cause to be conducted) external audits of a railroad's RRP. Each audit shall evaluate the railroad's compliance with the elements of its RRP required by this part. FRA will provide a railroad written notice of the audit results.
(a)
(b)
(1) Describe the improvements the railroad will implement to address the audit findings;
(2) Identify by position title the individual who is responsible for carrying out the improvements necessary to address the audit findings; and
(3) Contain a timeline describing when milestones for implementing the recommended improvements will be achieved. These implementation milestones shall be specific and measurable.
(c)
(d)
[Reserved]
A railroad required to develop a risk reduction program (RRP) under this part shall in good faith consult with and use its best efforts to reach agreement with its directly affected employees on the contents of the RRP plan.
“Good faith” and “best efforts” are not interchangeable terms representing a vague standard for the § 271.207 consultation process. Rather, each term has a specific and distinct meaning. When consulting with directly affected employees, therefore, a railroad shall independently meet the standards for both the good faith and best efforts obligations. A railroad that does not meet the standard for one or the other will not be in compliance with the consultation requirements of § 271.207.
The good faith obligation requires a railroad to consult with employees in a manner that is honest, fair, and reasonable, and to genuinely pursue agreement on the contents of an RRP plan. If a railroad consults with its employees merely in a perfunctory manner, without genuinely pursuing agreement, it will not have met the good faith requirement. A railroad may also fail to meet its good faith obligation if it merely attempts to use the RRP plan to unilaterally modify a provision of a collective bargaining agreement between the railroad and a non-profit employee labor organization.
On the other hand, “best efforts” establishes a higher standard than that imposed by the good faith obligation, and describes the diligent attempts that a railroad shall pursue to reach agreement with its employees on the contents of its RRP plan. While the good faith obligation is concerned with the railroad's state of mind during the consultation process, the best efforts obligation is concerned with the specific efforts made by the railroad in an attempt to reach agreement. This would include considerations such as whether a railroad had held sufficient meetings with its employees, or whether the railroad had made an effort to respond to feedback provided by employees during the consultation process. For example, a railroad would not meet the best efforts obligation if it did not initiate the consultation process in a timely manner, and thereby failed to provide employees sufficient time to engage in the consultation process. A railroad would also likely not meet the best efforts obligation if it presented employees with an RRP plan and only permitted the employees to express agreement or disagreement on the plan (assuming that the employees had not previously indicated that such a consultation would be acceptable). A railroad may, however, wish to hold off substantive consultations regarding the contents of its RRP plan until one year after publication of the rule in order to ensure that information generated as part of the process is protected from discovery and admissibility into evidence under § 271.11 of the rule. Generally, best efforts are measured by the measures that a reasonable person in the same circumstances and of the same nature as the acting party would take. Therefore, the standard imposed by the best efforts obligation may vary with different railroads, depending on a railroad's size, resources, and number of employees.
When reviewing RRP plans, FRA will determine on a case-by-case basis whether a railroad has met its § 271.207 good faith and best efforts obligations. This determination will be based upon the consultation statement submitted by the railroad pursuant to § 271.207(b) and any statements submitted by employees pursuant to § 271.207(c). If FRA finds that these statements do not provide sufficient information to determine whether a railroad used good faith and best efforts to reach agreement, FRA may investigate further and contact the railroad or its employees to request additional information. (FRA also expects a railroad's directly affected employees to utilize good faith and best efforts when negotiating on the contents of an RRP plan. If FRA's review and investigation of the statements submitted by the railroad under § 271.207(b) and the directly affected employees under § 271.207(c) reveal that the directly affected employees did not utilize good faith and best efforts, FRA could consider this as part of its approval process.)
If FRA determines that a railroad did not use good faith and best efforts, FRA may disapprove the RRP plan submitted by the railroad and direct the railroad to comply with the consultation requirements of § 271.207. Pursuant to § 271.301(b)(3), if FRA does not approve the RRP plan, the railroad will have 60 days, following receipt of FRA's written notice that the plan was not approved, to correct any deficiency identified. In such cases, the identified deficiency would be that the railroad did not use good faith and best efforts to consult and reach agreement with its directly affected employees. If a railroad then does not submit to FRA within 60 days
Because the standard imposed by the best efforts obligation will vary depending upon the railroad, there may be countless ways for various railroads to comply with the consultation requirements of § 271.207. Therefore, FRA believes it is important to maintain a flexible approach to the § 271.207 consultation requirements, in order to give a railroad and its directly affected employees the freedom to consult in a manner best suited to their specific circumstances.
FRA is nevertheless providing guidance in this appendix as to how a railroad may proceed when consulting (utilizing good faith and best efforts) with employees in an attempt to reach agreement on the contents of an RRP plan. FRA believes this guidance may be useful as a starting point for railroads that are uncertain about how to comply with the § 271.207 consultation requirements. This guidance distinguishes between employees who are represented by a non-profit employee labor organization and employees who are not, as the processes a railroad may use to consult with represented and non-represented employees could differ significantly.
This guidance does not establish prescriptive requirements with which a railroad shall comply, but merely outlines a consultation process a railroad may choose to follow. A railroad's consultation statement could indicate that the railroad followed the guidance in this appendix as evidence that it utilized good faith and best efforts to reach agreement with its employees on the contents of an RRP plan.
As provided in § 271.207(a)(2), a railroad consulting with the representatives of a non-profit employee labor organization on the contents of an RRP plan will be considered to have consulted with the directly affected employees represented by that organization.
A railroad could utilize the following process as a roadmap for using good faith and best efforts when consulting with represented employees in an attempt to reach agreement on the contents of an RRP plan.
(1) Pursuant to § 271.207(a)(3), a railroad shall meet with representatives from a non-profit employee labor organization (representing a class or craft of the railroad's directly affected employees) within 240 days from [THE DATE OF PUBLICATION OF THE FINAL RULE IN THE
(2) During the time between the initial meeting and the applicability date of § 271.11 the parties may meet to discuss administrative details of the consultation process as necessary.
(3) Within 60 days after [365 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE
(4) Within 180 days after [365 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE
(5) As provided by § 271.207(c), if agreement on the contents of an RRP plan could not be reached, a labor organization (representing a class or craft of the railroad's directly affected employees) could file a statement with the FRA Associate Administrator explaining its views on the plan on which agreement was not reached.
FRA recognizes that some (or all) of a railroad's directly affected employees may not be represented by a non-profit employee labor organization. For such non-represented employees, the consultation process described for represented employees may not be appropriate or sufficient. For example, FRA believes that a railroad with non-represented employees shall make a concerted effort to ensure that its non-represented employees are aware that they are able to participate in the development of the railroad's RRP plan. FRA therefore is providing the following guidance regarding how a railroad may utilize good faith and best efforts when consulting with non-represented employees on the contents of its RRP plan.
(1) Within 120 days from [THE DATE OF PUBLICATION OF THE FINAL RULE IN THE
(A) The railroad is required to consult in good faith with, and use its best efforts to reach agreement with, all directly affected employees on the proposed contents of its RRP plan;
(B) Non-represented employees are invited to participate in the consultation process (and include instructions on how to engage in this process); and
(C) If a railroad is unable to reach agreement with its directly affected employees on the contents of the proposed RRP plan, an employee may file a statement with the FRA Associate Administrator explaining his or her views on the plan on which agreement was not reached.
(2) This initial notification (and all subsequent communications, as necessary or appropriate) could be provided to non-represented employees in the following ways:
(A) Electronically, such as by email or an announcement on the railroad's Web site;
(B) By posting the notification in a location easily accessible and visible to non-represented employees; or
(C) By providing all non-represented employees a hard copy of the notification.
A railroad could use any or all of these methods of communication, so long as the notification complies with the railroad's obligation to utilize best efforts in the consultation process.
(3) Following the initial notification (and before the railroad submits its RRP plan to FRA), a railroad should provide non-represented employees a draft proposal of its RRP plan. This draft proposal should solicit additional input from non-represented employees, and the railroad should provide non-represented employees 60 days to submit comments to the railroad on the draft.
(4) Following this 60-day comment period and any changes to the draft RRP plan made as a result, the railroad should submit the proposed RRP plan to FRA, as required by this part.
(5) As provided by § 271.207(c), if agreement on the contents of an RRP plan cannot be reached, then a non-represented employee may file a statement with the FRA Associate Administrator explaining his or her views on the plan on which agreement was not reached.
This appendix establishes procedures for the submission of a railroad's RRP plan and statements by directly affected
(a) As provided for in § 271.101, each railroad must establish and fully implement an RRP that continually and systematically evaluates railroad safety hazards on its system and manages the resulting risks to reduce the number and rates of railroad accidents, incidents, injuries, and fatalities. The RRP shall be fully implemented and supported by a written RRP plan. Each railroad must submit its RRP plan to FRA for approval as provided for in § 271.201.
(b) As provided for in § 271.207(c), if a railroad and its directly affected employees cannot come to agreement on the proposed contents of the railroad's RRP plan, the directly affected employees have 30 days following the railroad's submission of its proposed RRP plan to submit a statement to the FRA Associate Administrator for Railroad Safety/Chief Safety Officer explaining the directly affected employees' views on the plan on which agreement was not reached.
(c) The railroad's and directly affected employees' submissions shall be sent to the Associate Administrator for Railroad Safety/Chief Safety Officer, FRA. The mailing address for FRA is 1200 New Jersey Avenue SE., Washington, DC 20590. When a railroad submits its RRP plan and consultation statement to FRA pursuant to § 270.201, it must also simultaneously send a copy of these documents to all individuals identified in the service list pursuant to § 271.107(b)(4).
(d) Each railroad and directly affected employee is authorized to file by electronic means any submissions required under this part. Prior to any person submitting anything electronically, the person shall provide the Associate Administrator with the following information in writing:
(1) The name of the railroad or directly affected employee(s);
(2) The names of two individuals, including job titles, who will be the railroad's or directly affected employees' points of contact and will be the only individuals allowed access to FRA's secure document submission site;
(3) The mailing addresses for the railroad's or directly affected employees' points of contact;
(4) The railroad's system or main headquarters address located in the United States;
(5) The email addresses for the railroad's or directly affected employees' points of contact; and
(6) The daytime telephone numbers for the railroad's or directly affected employees' points of contact.
(e) A request for electronic submission or FRA review of written materials shall be addressed to the Associate Administrator for Railroad Safety/Chief Safety Officer, Federal Railroad Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Upon receipt of a request for electronic submission that contains the information listed above, FRA will then contact the requestor with instructions for electronically submitting its program or statement. A railroad that electronically submits an initial RRP plan or new portions or revisions to an approved program required by this part shall be considered to have provided its consent to receive approval or disapproval notices from FRA by email. FRA may electronically store any materials required by this part regardless of whether the railroad that submits the materials does so by delivering the written materials to the Associate Administrator and opts not to submit the materials electronically. A railroad that opts not to submit the materials required by this part electronically, but provides one or more email addresses in its submission, shall be considered to have provided its consent to receive approval or disapproval notices from FRA by email or mail.
Federal Transit Administration (FTA), DOT.
Notice of proposed rulemaking; request for comments.
This notice seeks public comment on proposed rules that would transform and strengthen State Safety Oversight (SSO) of rail fixed guideway public transportation systems. FTA will issue a final rule and response to comments following the close of the comment period. Once FTA issues a final rule, the agency will rescind its current regulations.
Comments must be received by April 28, 2015.
Please submit your comments by only one of the following methods:
• Online: Use the Federal eRulemaking portal at
• U.S. Mail: Send your comments to the Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., W12–140, Washington, DC 20590–0001.
• Hand Delivery or Courier: Go to Room W12–140 on the ground floor of the West Building, U.S. Department of Transportation headquarters, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. Eastern time, Monday through Friday except Federal holidays.
• Telefax: Send your comments to 202–493–2251.
For program matters, Lynn Spencer, Director, FTA Office of System Safety, telephone 202–366–5112 or
This rulemaking would replace the regulations for State Safety Oversight (SSO) of rail fixed guideway public transportation systems in place for the past twenty years, and significantly strengthen the program to prevent and mitigate accidents and incidents on those systems. In the Moving Ahead for Progress in the 21st Century Act (MAP–21; Pub. L. 112–141, July 6, 2012), Congress directed FTA to establish a comprehensive Public Transportation Safety Program (codified at 49 U.S.C. 5329), one element of which is the State Safety Oversight program. The purpose of today's NPRM is to carry out the several explicit statutory mandates to strengthen the States' oversight of the safety of their rail transit systems, and ensure that the States' regulatory agencies have the necessary enforcement authority and financial and human resources for that purpose.
In the legislative history of MAP–21, Congress took note of several critical weaknesses in the State Safety Oversight program, including:
• Lack of adequate and consistent safety practices across rail transit systems
• Lack of regulatory, oversight, and enforcement authority
• Limited SSO program funding, staff, training, and other resources
• Lack of SSO financial and legal independence from the rail transit agencies they oversee.
Today's NPRM is the critical first step in meeting the MAP–21 requirements for State Safety Oversight of rail fixed guideway public transportation systems now set forth at 49 U.S.C. 5329(e). Once FTA issues a final rule for State Safety Oversight, to be codified at 49 CFR part 674, the agency will rescind the current regulations at 49 CFR part 659.
Section 20021 of MAP–21 amended 49 U.S.C. 5329 by adding several new provisions that required FTA to establish a comprehensive public transportation safety program, the elements of which include a National Public Transportation Safety Plan; a training and certification program for Federal, state, and local transportation agency employees with safety responsibilities; public transportation agency safety plans; and a strengthened State Safety Oversight Program, consisting of elements at both the state and rail transit agency level.
The NPRM proposes to make the following changes to strengthen the existing SSO program:
• States would assume greater responsibility for overseeing the safety of their rail fixed guideway systems.
• FTA would review and approve each state's SSO program, including certifying whether states are meeting the statutory criteria and withholding funds from those states that do not.
• FTA would impose financial penalties on those states with non-existent or non-compliant safety oversight programs.
As discussed in greater detail below, FTA conducted a task-by-task analysis to assess recurring and non-recurring costs for the proposed regulations to SSOs and rail transit agencies against the recurring costs for the current SSO regulations. Compared to current spending levels of State Safety Oversight activities, the proposed rule would require an
The Moving Ahead for Progress in the 21st Century Act (“MAP–21”; Pub. L. 112–141), authorizes a comprehensive Public Transportation Safety Program at 49 U.S.C. 5329. Four key components of the program are the National Public Transportation Safety Plan, authorized by Section 5329(b); the Public Transportation Safety Certification Training Program, authorized by Section 5329(c); the Public Transportation Agency Safety Plans, required by Section 5329(d); and the State Safety Oversight Program, authorized by Section 5329(e). FTA will issue rules to carry out all of these plans and programs under the rulemaking authority of 49 U.S.C. 5329(f)(7).
On October 3, 2013, FTA issued an Advance Notice of Proposed Rulemaking (ANPRM) for the National Public Transportation Safety Plan (“National Plan”), the Public Transportation Safety Certification Training Program (“Certification Training Program”), and the Public Transportation Agency Safety Plans (“Transit Agency Safety Plans”). 78 FR 61251–73. On April 30, 2014, FTA proposed interim provisions for a Safety Certification Training Program, as authorized by 49 U.S.C. 5329(c)(2). 79 FR 24363. In today's
Earlier, on May 13, 2013, the Federal Transit Administrator issued a
This NPRM pertains only to the State Safety Oversight (SSO) Program authorized by 49 U.S.C. 5329(e). The rulemaking for the SSO Program differs from the other rulemakings under the Public Transportation Safety Program in that it will replace a set of regulations that have been in place since 1995, codified at 49 CFR part 659. The SSO regulations pertain only to a limited portion of the public transportation industry—the recipients of Federal funds under 49 U.S.C. Chapter 53 that operate rail fixed guideway transit systems not subject to the jurisdiction of the Federal Railroad Administration (FRA), the States in which those rail systems lie, and the State Safety Oversight Agencies (SSOAs) required to oversee the safety of those rail systems. Conversely, the rulemakings for the National Plan, the Transit Agency Safety Plans, and the Safety Certification Training Program all arise under the authority of MAP–21, which took effect on October 1, 2012; these rulemakings will apply to all modes of public transportation, both rail and rubber tire; and they will apply to the manufacturers of public transportation vehicles, as well as the operators of public transportation.
To provide some context for this NPRM, the following is a brief history of FTA's State Safety Oversight Program.
FTA's predecessor agency, the Urban Mass Transportation Administration (UMTA), originated under the Urban Mass Transportation Act (UMT Act) of 1964—a
Several years thereafter, following a series of troubling accidents in the rail transit industry, Congress recognized a need to provide UMTA with a limited authority to investigate accidents and hazardous conditions in urban mass transportation. Specifically, in Section 107 of the National Mass Transportation Assistance Act of 1974 (Pub. L. 93–503), Congress instructed the agency to “investigate unsafe conditions in any facility, equipment, or manner of operation financed under this Act which the Secretary believes creates a serious hazard of death or injury.” The statute further directed UMTA to determine the nature and extent of hazardous conditions on transit systems; determine the means that might best correct or eliminate those hazardous conditions; and compel a grant recipient to submit a plan for correcting or eliminating those hazardous conditions. Eight years later, however, in the Surface Transportation Assistance Act of 1982, the Congress weakened this investigatory authority by repealing Section 107 of the National Mass Transportation Assistance Act of 1974; moving the authority to Section 22 of the UMT Act; and amending the statute to make the authority discretionary—not mandatory—striking the word “shall” and inserting the word “may.”
This very limited Federal authority for safety did not prove satisfactory, in the view of the National Transportation Safety Board (NTSB or “Board”). In August 1991, after a number of accidents in the industry—including very serious accidents on rapid rail systems in Philadelphia, Chicago, and New York City—the Board published a study titled “Oversight of Rail Rapid Transit Safety” (NTSB/SS–91/02) in which it urged all States to develop or revise safety programs to ensure comprehensive and effective oversight over rapid rail systems in their jurisdictions. The NTSB suggested that States have primary authority for oversight of rail transit safety, but it urged UMTA to evaluate the effectiveness of States' oversight of rail transit, develop guidelines, and require States and transit operators to use their UMTA grant funds to improve the safety of rail transit systems. Also, the NTSB implored UMTA to withhold its Federal financial assistance as necessary pending corrective action by the States and transit operators.
Very shortly thereafter, in response to the NTSB recommendations, the Congress created a State Safety Oversight program for rail fixed guideway transit safety in Section 3029 of the Intermodal Surface Transportation Efficiency Act (ISTEA), enacted in December 1991 (Pub. L. 102–240). Among the many fundamental changes ISTEA made to the Federal-aid programs for highways and public transportation, ISTEA renamed UMTA as the Federal Transit Administration (FTA), and directed FTA to compel States with rail transit systems within their borders not otherwise subject to the jurisdiction of the Federal Railroad Administration (FRA) (
The FTA SSO rule and the APTA Guidelines were widely accepted as the baseline for State oversight of the safety of rail transit until the summer of 2001. In June and August of that year, there were two collisions of rapid rail trains on the Chicago Transit Authority (CTA) system—both investigated by the NTSB—which called into question the effectiveness of the rule and the guidelines. In its Special Investigation Report issued in September 2002 (NTSB/SIR–02/01), the Board determined the probable cause of both accidents to have been the train operators' failure to comply with operating rules designed to prevent those types of collisions, and the failure of CTA management to exercise adequate oversight of the operational safety of its rapid rail system. Additionally, however, the Board identified several weaknesses in FTA's SSO program, and noted, specifically, that a previous audit of CTA by APTA had not identified any deficiencies in CTA's adherence to APTA's “System Safety Checklist”—a procedure that used only record reviews and supplemental spot checks to gauge whether operating rules were being followed, and which provided little guidance on what rules a compliance program should entail or how those rules should be carried out. Thus, the NTSB concluded that the APTA Guidelines were not sufficiently specific for making assessments of the effectiveness of rail transit operators' safety programs, nor were the Guidelines an effective tool for State oversight of rail transit safety. The NTSB called on APTA to revise its manual to provide explicit guidance to the industry on auditing the effectiveness of rail transit safety compliance programs, and for FTA to amend its SSO regulations at 49 CFR part 659, accordingly.
Notwithstanding the amendments to the SSO regulations in the 2005 rulemaking, the regulations were criticized for their lack of rigor, and the States' SSO programs were criticized for lack of authority, resources, and expertise. Most notably, in July 2006, the U.S. Government Accountability Office (GAO) criticized the regulations and identified some fundamental weaknesses in SSOAs in a report titled “Rail Transit: Additional Federal Leadership Would Enhance FTA's State Safety Oversight Program,”
In conducting its several investigations, the NTSB found a variety of probable causes for these accidents. Among them, equipment malfunctions; equipment in poor or marginal condition, including equipment that can pose particular risks to safety, such as signal systems; lack of vehicle crashworthiness; and employee error, such as inattentiveness, or failure to follow a rail transit system's operating procedure. In the instance of WMATA, the NTSB found the lack of a strong safety culture to be a contributing factor. Also, the NTSB found a lack of adequate oversight both by the rail transit systems' State Safety Oversight Agencies, and FTA.
In July 2009—one month after the WMATA Red Line accident near the Fort Totten station—Senators and Representatives from the Maryland and Virginia delegations introduced the National Metro Safety Act in both houses of Congress (H.R. 3338, S 1506, 111th Cong. (2009)). The bills would have required FTA to establish national minimum safety standards for transit systems, including several particular standards recommended by the NTSB pertaining to event recorders, emergency access and egress, crashworthiness of vehicles, and employee hours of service. Neither bill was reported out of committee. In December 2009, on behalf of the President, Secretary of Transportation Ray LaHood and Federal Transit Administrator Peter Rogoff formally submitted a legislative proposal to the Congress that contemplated a more comprehensive approach to safety in public transportation. In testimony before both the House Committee on Transportation and Infrastructure and the Senate Committee on Banking, Housing, and Urban Affairs, the Secretary and the Administrator presented the details of this proposal, which, ultimately, were introduced in both houses in February 2010 as the Public Transportation Safety Program Act of 2010 (H.R. 4643, S 3105, 111th Cong. (2010)). Citing the warning signs of increasing collisions, derailments, and casualties, the Secretary and the Administrator emphasized that rail transit always carries the potential for catastrophic accident and damage—notwithstanding its record of being a very safe means of travel—and that the State Safety Oversight program, as it currently exists, suffered from a number of fundamental weaknesses:
• Under the existing SSO framework, each rail transit system was free to determine its own safety practices. An SSOA would simply review those practices and report the progress of any corrective actions.
• Each SSOA had only so much regulatory, oversight, and enforcement authority as had been given by the State government. In many instances, the SSOA lacked authority to enforce any standards or compel compliance by the rail transit systems it oversaw.
• Many States viewed the SSO program as an unfunded mandate. Thus, many States devoted insufficient resources to the program, which compromised the abilities of SSOAs to recruit staff, provide adequate training to their staff, and develop their own expertise.
• In many instances, an SSOA was dependent upon financial resources from the same entities it was obliged to oversee—the rail transit systems—thus creating a conflict of interest.
In pertinent part, the Administration's bill would have required FTA to develop uniform, national standards for rail transit safety; given FTA authority to inspect rail transit systems for compliance with those standards; established a certification program for State Safety Oversight; authorized grants of 100 percent Federal funding for SSO programs, once certified; and required the SSO programs to be financially independent from the rail transit systems. Further, the Administration's bill would have given States the option to decline participation in the SSO program, without penalty, in which instance, FTA would have been required to perform the oversight function. Also, the Administration's bill would have given FTA authority to issue civil or criminal penalties for noncompliance.
Both the House and Senate versions of the Administration's bill were referred to committees. In July 2010, the Senate committee on Banking, Housing, and Urban Affairs reported a bill sponsored by the chairman of the committee, Senator Dodd, titled the Public Transportation Safety Act of 2010 (S 3638, 111th Cong. (2010)), which laid the foundation for the State Safety Oversight provisions eventually enacted under MAP–21. The Senate Banking bill embraced most of the fundamental precepts of the Administration's legislative proposal, but it differed from the Administration's bill in that it did not allow a State to decline participation in the SSO program; the grants of Federal funds for an SSO program would require a 20 percent match; and States could be allowed as much as three years, after the effective date of a final rule, to develop an SSO program adequate for certification—after which, in the event of an inadequate SSO program, FTA would be authorized to withhold all Federal grant funds from all public transportation operators in that State, not just the rail transit systems.
In the 112th Congress, the Senate Banking committee re-introduced its Public Transportation Safety Act of 2010, which became Section 20021 of the larger bill for reauthorization of surface transportation—the Moving Ahead for Progress in the 21st Century Act (S 1813, 112th Cong. (2012), “MAP–21”), shepherded by the Senate Committee on Environment and Public Works—that passed the Senate on March 14, 2012. The House bill for reauthorization of surface transportation—the American Energy and Infrastructure Jobs Act of 2012 (H.R. 7, 112th Cong. (2012))—had nothing comparable to the Senate bill insofar as State Safety Oversight of rail transit systems. Ultimately, the conferees from the House and Senate chose to adopt Section 20021 of the Senate bill, with some amendments, and the title of the Senate bill, “MAP–21,” as the title of the legislation that the president signed on July 6, 2012 (Pub. L. 112–141).
As noted, MAP–21 authorizes a comprehensive Public Transportation Safety Program, now codified at 49 U.S.C. 5329. As part of this comprehensive program, new Section 5329(e) significantly revises the existing SSO program, creating a program that is more demanding of the States and their SSO programs, and FTA, as well, in several ways. First, with respect to the States, the statute requires them to submit their SSO programs to FTA for its approval. In order to gain this approval, the States must assume responsibility for overseeing the safety of their rail fixed guideway public transportation systems, adopt and enforce Federal and relevant State safety laws, determine appropriate staffing levels for their SSOAs, and ensure proper training and certification of their safety oversight personnel. The organization designated as an SSOA must be financially and legally independent of the rail transit systems they oversee,
MAP–21 also made considerable changes regarding FTA's role in the SSO program. As mentioned previously, FTA must now approve each State's SSO program. In addition, FTA must establish a grant program to help the States develop and carry out their SSO functions, and to obtain the necessary training and certification for their SSOA staff. FTA must certify whether the States are meeting the statutory requirements, deny certification to those that are not, and FTA can withhold Federal funds until an SSO program can be certified. Congress provided FTA with additional authority to conduct inspections, investigations, audits, and examinations; test the equipment, facilities, rolling stock, and operations of rail transit systems; make reports and issue directives with respect to safety; issue subpoenas and take depositions from any employee of a rail transit system who is responsible for safety; require production of documents; and issue regulations for State Safety Oversight through public notice and comment.
On February 6, 2013, the Federal Transit Administrator issued a
Today's NPRM is a critical step in transforming and strengthening the regulatory framework for State Safety Oversight of rail fixed guideway public transportation systems. Once FTA issues a final rule for State Safety Oversight, the agency will rescind the current regulations at 49 CFR part 659. The following is a section-by-section analysis of the proposed rule in today's rulemaking:
This section explains that the purpose of these regulations is to carry out the mandate of 49 U.S.C. 5329(e) for States to perform oversight of rail fixed guideway public transportation systems within their jurisdictions. This section differs only slightly in wording from the current rule at 49 CFR 659.1.
This section explains that these regulations apply to States with rail fixed guideway public transportation systems, the SSOAs that oversee the safety of those systems, and entities that own or operate rail fixed guideway public transportation systems with Federal financial assistance from FTA. The first two sentences of this section are similar in wording to the current rule at 49 CFR 659.3, titled “Scope.”
This section identifies three separate, explicit policies that underlie these regulations: First, FTA is using the principles and methods of Safety Management Systems (SMS) as the basis for these regulations and all other regulations and policies FTA will issue under the authority of 49 U.S.C. 5329. Second, the primary responsibility for overseeing the safety of rail transit systems lies with the States—and a State's SSOA must have sufficient authority and resources to oversee the number, size, and complexity of rail transit systems that operate within that State. Third, FTA is obliged to make Federal funds available to eligible States to help them develop and carry out their SSO programs—and certify whether those SSO programs are adequate to promote the purposes of the public transportation safety programs under 49 U.S.C. 5329. The current rule at 49 CFR part 659 does not include a statement of policy.
This section sets forth a number of definitions for terms used repeatedly throughout the State Safety Oversight program and the other safety programs authorized by 49 U.S.C. 5329. Some of these defined terms are the same as set forth in the current regulations at 49 CFR part 659, but the wording of the definitions has been changed, in today's proposed rulemaking, for sake of clarity; readers should refer, specifically, to the definitions of “contractor,” “corrective action plan,” “hazard,” “individual,” “investigation,” “passenger,” “rail fixed
There are new definitions, however, for the terms “National Public Transportation Safety Plan,” “Public Transportation Safety Certification Training Program,” “Public Transportation Agency Safety Plan,” “State Safety Oversight Agency (SSOA)”, and “State Safety Oversight Program (SSOP),” all of which are strictly consistent with the use of those terms in the statutes. And there are new, common-sense definitions for the terms “Transit Agency Safety Plan,” and “vehicle.” “Transit Agency Safety Plan” is a shorthand reference to the Public Transportation Agency Safety Plan; and “vehicle” means any rolling stock used on a rail fixed guideway public transportation system, including but not limited to passenger and maintenance vehicles.
We have also included definitions for the terms “accident,” “event,” “incident,” and “occurrence.” We propose amending the definition for “accident” as it relates to injuries. In 49 CFR 659.33, the definition includes, “injuries requiring immediate medical attention away from the scene for two or more individuals.” We propose changing that to “one or more persons suffers a serious injury,” and we propose adding the NTSB definition of “serious injury” found in 49 CFR 830.2: “any injury which: (1) Requires hospitalization for more than 48 hours, commencing within 7 days from the date of the injury was received; (2) results in a fracture of any bone (except simple fractures of fingers, toes, or nose); (3) causes severe hemorrhages, nerve, muscle, or tendon damage; (4) involves any internal organ; or (5) involves second- or third-degree burns, or any burns affecting more than 5 percent of the body surface.” FTA seeks comment on this change. The term “event” is defined as any accident, incident, or occurrence. As stated in our January 28, 2015,
Additionally, there are a number of new definitions in today's proposed rulemaking that are based on the principles and methods of Safety Management Systems (SMS). Readers should refer, specifically, to the terms “accountable executive,” “risk,” “risk control,” “safety assurance,” “Safety Management System,” “safety policy,” “safety promotion,” and “safety risk management.” In the years since the rules at 49 CFR part 659 were first issued in 1995, SMS has emerged as the best practice for enhancing safety in all modes of transportation, and the Secretary of Transportation instructed each of the Department's operating administrations to develop rules, plans, and programs to apply SMS to their grant recipients and regulated communities. See,
Many of the definitions for applying the principles and methods of SMS in proposed section 674.7 are very similar to those set forth in a Notice of Proposed Rulemaking and a Final Rule on SMS by FTA's sister agency, the Federal Aviation Administration (FAA). The NPRM, issued on October 7, 2010, at 75 FR 62008, titled “Safety Management Systems for Certified Airports,” proposes to apply the principles and methods of SMS to airports that hold certificates in accordance with 14 CFR part 139. A Final Rule, issued on January 8, 2015, at 80 FR 1308, titled “Safety Management Systems for Domestic, Flag, and Supplemental Operations Certificate Holders,” applies the principles and methods of SMS to domestic, international flag, and supplemental operations air carriers that hold certificates in accordance with 14 CFR part 121. FTA also anticipates that it will be incorporating many if not all of these same definitions for applying SMS to public transportation in its future rulemakings for the National Public Transportation Safety Plan, the Public Transportation Safety Certification Training Program, and the Public Transportation Agency Safety Plans.
In framing the provisions of MAP–21 for a much stronger State Safety Oversight program—and much higher expectations of the States and their SSOAs—the Congress recognized that the States and the rail transit systems they oversee would need a period of transition. Also, the Congress recognized that FTA would need time to conduct rulemakings through public notice and comment. Thus, MAP–21 Section 20030(e) provides that the previous authorization statute for State Safety Oversight, 49 U.S.C. 5330, will remain in effect for three years after FTA promulgates a final rule under the authority of the new authorization statute for State Safety Oversight, 49 U.S.C. 5329(e). Although nothing in this rulemaking precludes a State from immediately establishing an oversight agency that fully complies with MAP–21's requirements, Congress recognized that many States would need time to enact enabling legislation during the transition from the current program to a MAP–21 compliant program, particularly in States where the legislature meets only part-time or biennially. This section in today's proposed rulemaking recognizes that transition. (See, specifically, proposed 49 CFR 674.9(a) in today's NPRM.) Also, this section states that the current SSO regulations at 49 CFR part 659 will be rescinded upon the effective date of a final rule under the new authorization statute, 49 U.S.C. 5329(e).
Readers should please be mindful of the differences between a State Safety Oversight Program (SSOP) and the State Safety Oversight Agency (SSOA) that carries out an SSOP. In essence, an SSOA is a State agency that is obliged to interpret, administer, and enforce the State statutes enacted by a State legislature and the State regulations and program standards developed by a Governor and his or her designees in the executive branch of State government. An SSOP is the collection of law, rules, and administrative standards that define the minimum requirements for safety of rail public transportation in the State; the financial, physical, and human resources necessary to establish and maintain the SSOA; and the system of checks and balances, within State government, that holds an SSOA accountable for its actions.
In enacting MAP–21, the Congress very carefully spelled out the different missions and functions of an SSOP and an SSOA. The missions and functions of an SSOP are specified at 49 U.S.C. 5329(e)(3). The missions and functions of an SSOA are specified at 49 U.S.C. 5329(e)(4). In today's rulemaking, proposed section 674.11 states the missions and functions of an SSOP, and proposed section 674.13 states the missions and functions of an SSOA, as directed by the statutes. Most importantly, in an SSOP, a State must do the following: A State must explicitly assume responsibility for overseeing the safety of rail transit systems within its borders. A State must adopt and enforce Federal and relevant State law for that purpose. Not only must a State establish an SSOA, but it must ensure that the SSOA has a staffing level adequate to oversee the number, size, and complexity of the rail transit systems within the State, and that the staff of the SSOA are trained and qualified to perform their jobs. Further, a State must ensure that an SSOA does not receive any financial support from the rail transit systems the SSOA is obliged to oversee.
In summary, an SSOP is the means by which a State ensures that an SSOA is sufficiently empowered by law, and supported with the resources necessary to do its job, without bias toward any rail transit system within the SSOA's oversight. Through the requirements for an SSOP, the Congress is calling on the Governors of all States with rail fixed guideway public transportation systems to create SSOAs that are agile, competent watchdogs for the safety of those rail transit systems. Moreover, MAP–21 rectifies the previous, untenable practice in which a number of SSOAs had to rely upon subsidization from one or more of the rail transit systems they were obliged to oversee; through the SSOP, a State must now ensure that those previous conflicts of interest no longer exist.
In MAP–21, the Congress established a set of requirements for designation of a State Safety Oversight Agency (SSOA) that are more prescriptive than those of SAFETEA–LU and the previous authorization statutes, including, notably, the requirements for financial and legal independence, audit, investigation and enforcement authority, and other safeguards against conflicts of interest between an SSOA and the rail fixed guideway public transportation systems the SSOA will oversee. This section of the NPRM simply reiterates the statutory requirements for designation and establishment of an SSOA now codified at 49 U.S.C. 5329(e)(4)(A). Also, this section of the NPRM notes the Administrator's authority to waive the requirements for financial and legal independence and the prohibitions on employee conflict of interest in the instance of a State in which the rail fixed guideway public transportation systems have fewer than one million revenue miles per year combined, or provide fewer than ten million unlinked passenger trips per year, combined. The statutory authority for a waiver is codified at 49 U.S.C. 5329(e)(4)(B).
Additionally, this section reiterates the reporting requirements for an SSOA now codified at 49 U.S.C. 5329(e)(4), including, notably, the requirements that an SSOA make annual reports on the status of the safety of the rail fixed guideway public transportation systems it oversees to both the Governor and the boards of directors of the rail transit systems.
In a few instances across the United States, there are rail fixed guideway public transportation systems that operate in more than one State. This section of the NPRM identifies the same option for State Safety Oversight of such a multi-state system as now provided by 49 U.S.C. 5329(e)(5): The States may choose either to apply uniform safety standards and procedures to the rail transit system through a State Safety Oversight Program compliant with 49 U.S.C. 5329 and approved by the Administrator, or to designate a single entity that meets the requirements for an SSOA to serve as the SSOA for that rail transit system, through a program approved by the Administrator.
This section explains that Federal financial assistance is now available to States to develop and carry out State Safety Oversight Programs (SSOPs), and may be used, specifically, for both the operational and administrative expenses of SSOPs and SSOAs and the expenses of employee training. Also, this section notes that the Federal financial assistance to a State will be allocated in accordance with a formula applicable to all eligible States; a grant of Federal funds will be subject to terms and conditions as the Administrator deems appropriate; the Federal share of eligible expenses under a grant will be eighty percent; and the non-Federal share of the expenses under a grant cannot be comprised of Federal funds, funds received from a public transportation agency, or any revenues earned by a public transportation agency.
One of the most important provisions of the MAP–21 framework for safety is the new mandate for an FTA certification of a State Safety Oversight Program (SSOP); specifically, the mandate that the Administrator make a determination not only whether an SSOP meets the technical requirements of the statute, but whether that same SSOP “
This section of the NPRM fleshes out the requirements and the process for certification of a State's SSOP. Specifically, proposed section 674.17(a)
Proposed section 674.17(c) states that in his or her discretion, the Administrator may impose financial penalties as authorized by Congress at 49 U.S.C. 5329(e)(7)(D). In brief, the statute provides the Administrator three options in imposing a financial penalty: (1) The Administrator can withhold SSO grant funds from the State; (2) The Administrator can withhold not more than five percent of the 49 U.S.C. 5307 Urbanized Area formula funds appropriated for use in the State or urbanized area in the State, until such time as the SSOP can be certified; or (3) The Administrator can require all of the rail fixed guideway public transportation systems governed by the SSOP to spend up to 100 percent of their Federal funding under 49 U.S.C. Chapter 53 for “safety-related improvements” on their systems, only, until such time as the SSOP can be certified. See, 49 U.S.C. 5329(e)(7)(D)(ii)(I)–(III).
Additionally, proposed section 674.17(d) states that in deciding whether to issue a certification for a State's SSOP, the Administrator will evaluate whether the SSOA has sufficient authority, resources, and expertise to oversee the number, size, and complexity of the rail transit systems that operate within the State, or will attain the necessary authority, resources, and expertise in accordance with a developmental plan and schedule set forth in a sufficient level of detail in the State's SSOP.
Proposed section 674.21(a) explains that in those instances in which the Administrator has discretion to impose financial penalties for noncompliance with the SSO requirements, in making a decision whether to do so, and determining the nature and amount of a financial penalty, the Administrator must consider the extent and circumstances of the noncompliance, the operating budgets of both the SSOA and the rail transit systems that will be affected by the penalty, and such other matters as justice may require.
There is one instance, however, in which the Administrator will be unable to exercise any discretion to mitigate a very harsh financial penalty for noncompliance with the SSO requirements. If a State fails to establish a State Safety Oversight Program approved by the Administrator within three years of the effective date of the final rule that will follow today's NPRM, FTA will be prohibited by law from obligating any Federal financial assistance to
When FTA first promulgated a rule for State Safety Oversight, the agency recognized that rail transit systems often face litigation arising from accidents, and that the release of accident investigation reports can compromise both the defense of litigation and the abilities of rail transit systems to obtain comprehensive, confidential analyses of accidents.
Today's proposed rulemaking would clarify, and slightly expand, the current rule, by specifying that a “State, State Safety Oversight Agency, or a rail fixed guideway public transportation system may withhold an investigation report prepared or adopted in accordance with the Federal regulations for State Safety Oversight from being admitted as evidence or used in a civil action for damages resulting from a matter mentioned in the report.”
Ever since 1995, when FTA issued the current SSO regulations at 49 CFR part 659, the SSOA has been required to set minimum standards for the safety of all rail fixed guideway public transportation agencies within their oversight. Today's proposed rulemaking would continue that requirement.
Proposed section 674.25(b) notes that basic principles and methods of SMS are set forth in an Appendix to the rules, titled the “Safety Management Systems (SMS) Framework.”
Proposed section 674.25(c) would require an SSOA to review and approve the Transit Agency Safety Plan, oversee the execution of that plan, and enforce the execution of that plan through the order of a corrective action plan or any other means, as necessary or appropriate. Proposed sections 674.25(d) and 674.25(e) recognize that an SSOA has primary responsibility for investigating the hazards, risks, and accidents on a rail transit system, and any alleged noncompliance with a Transit Agency Safety Plan, but these responsibilities do not preclude the Federal Transit Administrator from exercising his or her independent authority to investigate hazards, risks, or accidents.
Proposed section 674.25(f) would allow an SSOA to retain the services of a contractor for assistance in investigating accidents and incidents and for expertise the SSOA does not have within its own organization. Proposed section 674.25(g) makes clear that all personnel and contractors employed by an SSOA must comply with the requirements of the Safety Certification Training program—either the interim provisions for the program or the final rule, once the final rule is issued.
Under 49 CFR 659.15—the rule in place since 1995—the SSOAs have been required to develop a nine-part State safety program standard comprised of requirements for program management, standards development, oversight of the internal safety and security reviews by rail transit systems, the frequency of those reviews, accident notification requirements, investigation procedures, corrective actions, the 21-point “system safety program plan” for rail transit systems, and the “system security plan” for rail transit systems. The current rule sets a regimen that is reactive, highly prescriptive, and mechanistic; today's proposed rulemaking will be proactive, emphasizing the avoidance and mitigation of hazards and risks.
Today's NPRM transforms the list-specific, mechanistic approach to State safety program standards into one based on the more flexible, effective principles and methods of SMS. The SMS approach to State safety program standards at proposed section 674.27 addresses many of the same elements as are called out in the current SSO rule; it does so, however, in ways that are more comprehensive for preventing accidents, afford more latitude to the SSOAs, and can be scaled to the number, size, and complexity of the rail fixed guideway public transportation systems within the oversight of an SSOA. First, proposed section 674.27(a) obliges an SSOA to adopt and distribute a program standard that is consistent with the National Safety Plan, SMS, and the relevant State Safety Oversight Program. Next, proposed section 674.27(a) obliges an SSOA to identify the processes and procedures that will govern its own activities. Next, proposed section 674.27(a) obliges an SSOA to identify the processes and procedures a Rail Transit Agency must have in place to comply with the SSO's program standard. Finally, proposed section 674.27(a) sets explicit but minimum, flexible standards for program management, standards development, oversight of a Rail Transit Agency's internal safety reviews, triennial audits of Transit Agency Safety Plans, accident notification, investigations, and corrective actions.
Readers should note in particular the proposed requirements for an explanation of an SSOA's authority; the steps an SSOA must take to ensure “open, on-going communication” with the rail transit systems within its oversight; the process whereby an SSOA will evaluate the material submitted under the signatures of a Rail Transit Agency's accountable executives; the procedures an SSOA and a Rail Transit Agency will follow to manage findings and recommendations arising from a triennial audit; the coordination of an SSOA investigation with a Rail Transit Agency's own internal investigation; the role of an SSOA in supporting any investigation or findings made by the NTSB; and the procedures and SSOA and a Rail Transit Agency will follow to manage any conflicts over the contents or execution of a corrective action plan.
Also, readers should please note the new FTA responsibility for reviewing the effectiveness of State safety program standards. Under proposed section 674.27(b), FTA will evaluate an SSOA's program standard as part of its continuous evaluation of every State Safety Oversight Program (SSOP), and in preparing FTA's annual report to Congress on the certification status of every SSOP, both of which are required by 49 U.S.C. 5329(e)(8). FTA will certify each compliant SSOA within the first three years following publication of the final rule, and will monitor compliance annually thereafter.
One of the most significant changes in State Safety Oversight under today's proposed rulemaking is the transition from the simple review-and-approval of the “system safety program plan” for a rail fixed guideway public transportation system, now codified at 49 CFR 659.17, to the more hands-on, proactive role for an SSOA in evaluating the effectiveness of a Transit Agency Safety Plan in proposed section 674.29. To reiterate, “Transit Agency Safety Plan” is a shorthand reference to the new Public Transportation Agency Safety Plan now required of
Specifically, under proposed section 674.29(a), an SSOA must evaluate whether a Transit Agency Safety Plan is based on an adequate Safety Management System (SMS), is consistent with the National Safety Plan, and is in compliance with the seven minimum standards set by the statute. Under proposed section 674.29(b), an SSOA must make a number of judgments in determining whether the Transit Agency Safety Plan is based on an adequate SMS: Most notably, the judgments whether a Transit Agency Safety Plan sets forth a sufficiently explicit safety policy for the rail transit system, and whether the plan
In short, under proposed section 674.29, the SSOA becomes a vigorous, diligent, “institutional check” on whether a Transit Agency Safety Plan for a rail transit system is adequate to avoid or mitigate hazards and risks to everyone who uses, manages, or maintains that system. This is a much more assertive role for an SSOA than has been the case under the regulations in place since 1995.
Under the current regulations, an SSOA conducts an “on-site review” of the “system safety program plan” for a rail fixed guideway public transportation system at least once every three years.
Under today's NPRM, the three-year on-site review would be transformed into a more searching analysis of the safety of a rail transit system. Specifically, under proposed section 674.31, an SSOA will conduct a complete audit of a Rail Transit Agency's compliance with its Transit Agency Safety Plan at least once every three years, or on an on-going basis over a three-year timeframe, if the Rail Transit Agency concurs. At the conclusion of the three-year audit cycle an SSOA will issue a report with findings and recommendations that include, at minimum, an analysis of the effectiveness of the Transit Agency Safety Plan, recommendations for improvements, and a corrective action plan, if necessary or appropriate. The Rail Transit Agency must be given an opportunity to comment on the findings and recommendations arising from the audit. Optimally, an SSOA audit, per se, will be a more independent, effective means of testing the value of a Transit Agency Safety Plan and the steps a Rail Transit Agency has taken to carry out that plan over a three-year cycle.
Proposed section 674.33 differs very little from the two-hour notification requirement for certain types of accidents in the current rule at 49 CFR 659.33, with two exceptions. The first exception is the addition of the term “Incident.” The second exception is the additional requirement that FTA be notified of an Accident or Incident together with the SSOA.
FTA is proposing to require two-hour notification for either an “Accident” or “Incident.” In proposed section 674.7, “Incident” is characterized as a near miss, close call, a violation of a safety standard that poses a hazard to a rail fixed guideway public transportation system, or equipment or property damage in an amount less than $25,000 that effects transit operations. Experience teaches that a near miss or close call may be as much or more important for detecting hazards and mitigating risk as an accident that results in personal injury or property damage. And logically, a violation of a safety standard calls for notification, regardless whether the violation led to personal injury or property damage.
To enhance FTA's own situational awareness, a Rail Transit Agency must notify FTA of any accident or incident at the same time a Rail Transit Agency notifies the SSOA. In recent years FTA has benefitted from the electronic notification process a number of rail transit systems are using to inform multiple parties of accidents, similar to the telephonic notifications that railroads subject to 49 CFR part 225 provide to the Federal Railroad Administration via the National Response Center. Insofar as the rail fixed guideway public transportation systems already use an electronic notification system, FTA asks that it be added to their automated lists of addressees, which would require minimal effort.
In the deliberations leading to the enactment of MAP–21, the congressional authorization committees took a fresh look at whether investigation and enforcement authority for safety in rail fixed guideway public transportation should be vested in FTA or retained by the States. Ultimately, the Congress decided that FTA and the States, through their SSOAs, will have concurrent authority to investigate any incident involving the safety of a rail transit vehicle or taking place on the property of a rail transit system, while the SSOAs retain the role of primary oversight for the safety of rail fixed guideway public transportation. See, 49 U.S.C. 5329(e)(4)(A)(v), 5329(f)(1). Consequently, under today's proposed rulemaking, FTA will continue to defer to the SSOAs to conduct initial inspections and investigations. Should an SSOA request FTA's assistance, however, or should the Administrator determine that an SSOA lacks the ability to conduct an investigation as necessary or appropriate, FTA may initiate an investigation.
Under the current regulations, an SSOA may request a rail transit system to conduct an investigation on behalf of the SSOA. See, 49 CFR 659.35(a), (c). In some instances, it may benefit a rail transit system to investigate an accident occurring on its property, but in FTA's view, that practice can trigger a conflict of interest, particularly where a rail transit system has an ability to influence an apportionment of fault and liability. Given that 49 U.S.C. 5329 now provides SSOAs with resources to conduct their own investigations, and requires professional training and certification of their employees to investigate accidents, proposed section 674.35(a) would require an SSOA to conduct an “independent investigation” of any accident or incident that a Rail Transit Agency reports to the SSOA in compliance with proposed section 674.33(a). Further, proposed section 674.35(c) would require all personnel and contractors conducting investigations for an SSOA to be trained to conduct investigations in accordance with the Safety Certification Training program. Obviously, a Rail Transit Agency would not be prohibited from conducting its own internal investigation of an accident. Rather, proposed section 674.35(a) states that in any instance in which both an SSOA and a Rail Transit Agency are conducting an investigation, they must coordinate their investigations with one another in accordance with the State safety oversight program standard required by proposed section 674.27.
Under proposed section 674.35(b), an SSOA must issue a written report on an investigation that identifies the factors that caused or contributed to the accident or incident, describes the SSOA's investigation activities, and sets forth a corrective action plan, as necessary or appropriate. The SSOA must formally adopt an investigation report and transmit that report to the Rail Transit Agency for review and concurrence. If a Rail Transit Agency
Also, readers should note that MAP–21 has vested the Federal Transit Administrator with broad authority to conduct investigations of public transportation systems—whether to ensure the continuing safety of a system, or in response to an accident or incident. See, 49 U.S.C. 5329(f)(1) (as the Secretary's designee, the Administrator “may . . . conduct inspections, investigations, audits, examinations, and testing of the equipment, facilities, rolling stock, and operations of [a] public transportation system . . .”). To facilitate the Administrator's authority to conduct investigations, he or she may make reports and issue directives, issue subpoenas, take depositions, require production of documents by either a public transportation system or an SSOA, and provide guidance to public transportation systems “regarding prevention of accidents and incidents.” See, 49 U.S.C. 5329(f)(2)–(6). The FTA Office of Safety and Oversight will carry out the Administrator's authority to conduct investigations, with assistance from staff of the ten FTA Regional Offices.
It is most likely an SSOA will order a Rail Transit Agency to prepare and carry out a corrective action plan as the result of an investigation of an accident or hazard, an internal safety audit, or an SSOA's triennial audit of a Transit Agency Safety Plan. Although it is not possible to know what potential corrective action plans may call for, under proposed section 674.37(a), in any instance in which a Rail Transit Agency is ordered to develop and carry out a corrective action plan, the SSOA must review and approve that plan before the Rail Transit Agency carries out the plan. A corrective action plan must specify the actions a Rail Transit Agency will take to avoid or mitigate the risks and hazards that led to the plan, the schedule for taking the corrective actions, and the persons who will take the corrective actions. The Rail Transit Agency will periodically report its progress in carrying out the corrective action plan, and the SSOA may monitor the Rail Transit Agency's progress through unannounced, on-site inspections, or any other means the SSOA deems necessary or appropriate. Also, in any instance in which the National Transportation Safety Board (NTSB) has conducted an investigation, an SSOA must evaluate whether the NTSB's findings and recommendations call for a corrective action plan by the Rail Transit Agency, and if so, the SSOA must order the Rail Transit Agency to develop and carry out a corrective action plan.
It is not FTA's objective to increase the reporting burdens on States, their SSOAs, or rail fixed guideway public transportation systems any more than absolutely necessary. Moreover, the current SSOA reporting requirements at 49 CFR 659.39 have worked well for the limited authority and responsibilities given to the SSOAs under the State Safety Oversight program in place for the past twenty years. As further described in the Paperwork Reduction Act section of this notice, below, the Office of Management and Budget (OMB) extended the approval for FTA to collect information from SSOAs as required by 49 U.S.C. 5330 and the rules at 49 CFR part 659.
Today's rulemaking proposes to keep the basic structure of the current 49 CFR 659.39 insofar as the data and information SSOAs must report to FTA on an annual basis, with a few additions and revisions, as follows. First, under proposed subsection 674.39(a)(2), an SSOA would be obliged to submit evidence once a year that each of its employees and contractors are in compliance with the applicable Safety Training Certification requirements. Second, under proposed subsection 674.39(a)(4), an SSOA would be obliged to submit a summary of the triennial audits completed during the preceding year, and the Rail Transit Agencies' progress in carrying out any corrective action plans arising from those audits. Third, under proposed subsection 674.39(a)(5), an SSOA would be obliged to submit evidence of its review and approval of any changes to Transit Agency Safety Plans during the preceding year.
Proposed section 674.41(a) incorporates a fundamental change enacted by MAP–21: An SSOA must now be both financially and legally independent from any rail fixed guideway public transportation system under the oversight of the SSOA. See, 49 U.S.C. 5329(e)(4)(A)(i). The only exception to this requirement would be an instance in which the Administrator has issued a waiver based on the relatively small annual fixed guideway revenue mileage in a State (less than one million actual and projected revenue miles, in total), or the relatively small number of unlinked passenger trips carried by all the rail transit systems in a State, on an annual basis (fewer than ten million actual and projected unlinked passenger trips, in total). See, 49 U.S.C. 5329(e)(4)(B).
Proposed section 674.41(b) would change the current rule, 49 CFR 659.41, to make it clear that an SSOA may not employ any individual who provides services to a rail fixed guideway public transportation system under the oversight of the SSOA. Also, the proposed rule would delete the reference in the current rule to state law determinations of conflict of interest. Again, however, the Administrator could issue a waiver from this requirement on the basis of the relatively small annual fixed guideway revenue mileage (less than one million miles) in a State or the relatively small number of unlinked passenger trips per year (less than 10 million unlinked trips) in a State, using the same thresholds as specified in proposed section 674.41(a).
Finally, proposed section 674.41(c) would make it clear that a contractor may not provide its services to both an SSOA and a rail transit system under the oversight of that SSOA. There is no waiver available with respect to this particular requirement.
For a basic understanding of SMS, readers should please consult the Appendix that immediately follows the text of the proposed rules: The document titled “Safety Management Systems (SMS) Framework.” This document describes at some length each of the four key components of a viable SMS for any transportation provider: (1) The Safety Management Policy for an organization, (2) an organization's Risk Management practices, (3) the means for Safety Assurance throughout an organization, and (4) the practices for Safety Promotion within an organization, through training, education, and communication. This document explains that SMS is both flexible and scalable to the size of an organization and its operating environment. This document addresses the role of the Accountable Executive—the leader at the top of an organization who is ultimately responsible for safety—and the roles of a chief safety officer, an executive leadership team, employees who specialize in operations, maintenance, and asset management, employees with front-line
This Appendix is a guidance document. Unlike the final rules that will follow the public notice and comment on the proposed rules in this NPRM, this Appendix will not have the force of law. FTA is publishing the Safety Management Systems (SMS) Framework in this Appendix to provide practical advice both to the rail fixed guideway public transportation systems that will develop and integrate SMS into their operations and managerial structures, and the States and SSOAs that will oversee the rail transit systems' practice of SMS. FTA does not intend to set substantive standards for SMS through today's proposed rulemaking for State Safety Oversight. Rather, FTA intends to propose substantive standards for SMS in the upcoming Notices of Proposed Rulemaking for the National Public Transportation Safety Plan and the Transit Agency Safety Plans. Nonetheless, FTA invites readers to comment on the material set forth in this Appendix, together with your comments on the rules proposed in this NPRM. Indeed, FTA expects to revise this Appendix from time to time, in the years ahead, as the practice of SMS matures throughout the transit industry.
In omitting any mention of rail transit system security plans and reviews, the rules FTA is proposing for State Safety Oversight in this NPRM would not prohibit rail transit systems from continuing to improve their practices to prevent and mitigate the threats to the security of their systems. To the contrary, rail transit systems are encouraged to do so—and strictly in accordance with the rules and guidelines TSA has issued and will issue in the future. Both FTA and TSA recognize, moreover, that some of the steps a public transportation agency takes to protect public and employee safety are often one and the same as those it takes to protect its transit system from a terrorist attack; for example, the steps an agency takes as part of a threat and vulnerability assessment. FTA and TSA work to ensure that the transit industry is not confronted with inconsistent government-issued security requirements or guidance.
As stated in the Background section above, this NPRM replaces a set of regulations that have been in place since December 27, 1995, codified at 49 CFR part 659. As such, this NPRM applies to a discrete subsection of the public transportation industry—the recipients of Federal funds under 49 U.S.C. chapter 53 that operate rail fixed guideway transit systems not subject to the jurisdiction of the Federal Railroad Administration; the States in which those rail systems lie; and the SSOAs required to oversee the safety of those rail systems.
Through the implementation of 49 CFR part 659, the States, SSOAs and rail transit agencies affected by 49 U.S.C. 5329(e) already engage in core activities that address many of this NPRM's proposed requirements. In practical terms, many of the changes required in this NPRM serve to increase the frequency and/or comprehensiveness of activities that are already performed, such as reviews, inspections, field observations, investigations, safety studies, data analysis activities, and hazard management.
Pursuant to 49 CFR part 659, FTA collects annual information from the SSOAs regarding the hours they expend to implement SSO requirements for the rail transit agencies in their jurisdictions. Based on this information, when totals are averaged for the last three reporting years (CY 2011–CY 2013), FTA has determined that the 28 covered SSOAs expend approximately 115,396 total hours per year implementing part 659 requirements. While these hours average out to roughly 4,120 per State per year, there is wide variation across the States in terms of the total level of effort devoted to compliance with part 659. Some States, such as California, oversee multiple rail transit systems with two or more full-time equivalents (FTEs) devoted to each system. Most States covered by part 659, however, have one (1) rail fixed guideway system and devote between .5 and 1 FTEs per year to implementing 49 CFR part 659 requirements for that system, supplemented by contractor resources for major activities, such as the Three-Year Review and accident investigation.
The table below illustrates the break-down of activities and labor hours currently expended to implement 49 CFR part 659 by the States and SSOAs.
The table also identifies one-time, non-recurring activities with an asterisk (*). These activities, such as establishing standards and procedures, are performed initially to establish the SSO program standard for a State new to implementing part 659. By including these non-recurring costs, FTA's table reflects the reality that new States and rail transit agencies are joining the SSO program each year. In fact, since January 1, 1997, when the December 27, 1995 rule implementing 49 CFR part 659 went into effect, the SSO program has grown by 40 percent, increasing from 19 SSOAs and 32 rail transit agencies to 28 SSOAs and 48 rail transit agencies.
Based on information collected from the SSO agencies in annual reports and previous assessments conducted by the Government Accountability Office and the National Transportation Safety Board, FTA has also established the level of effort required to implement 49 CFR part 659 requirements for the 48 rail transit agencies covered by the regulation. Based on this data, FTA has determined that each year, rail transit agencies expend approximately 237,000 hours implementing 49 CFR part 659 requirements.
While these hours average out to approximately 5,000 per rail transit agency per year, there is variation in the rail transit industry based on the size of rail fixed guideway systems. The nation's five (5) largest rail transit agencies each employ between 6 and 15 full-time equivalents who work exclusively on 49 CFR part 659 activities. Most of the remaining rail transit agencies devote between .5 and 2 FTEs to implement 49 CFR part 659 activities. Major activities performed by the rail transit agencies to implement 49 CFR part 659 include developing safety and security plans and procedures; conducting internal reviews and audits to assess the implementation of safety and security plans; conducting accident and incident investigations; identifying, assessing and resolving hazards and their consequences; managing safety data acquisition and analysis; coordinating with emergency response planning; and communicating with/responding to the SSO agency through reports, meetings, teleconferences, emails, training, submittals and support for field observations and reviews.
Also using the 2013 Bureau of Labor Statistics average wage rate of $42.70 per hour for State and local government operations managers, FTA has determined that the rail transit industry spends about $10 million per year to implement the 49 CFR part 659 requirements nationwide. FTA's table below reflects non-recurring costs required for new rail transit agencies covered by part 659, and for existing rail transit agencies to address new extensions and capital projects, once they become operational, as averaged over the last three years.
Based on the assessment provided in the two tables above, collectively the States, the SSOAs and the rail transit agencies expend approximately 352,000 labor hours or $15 million to implement 49 CFR part 659 requirements each year. While this level of effort helps make the transit industry among the safest modes of surface transportation, it has not been sufficient to prevent major accidents with multiple fatalities from occurring. As discussed in the preamble to this NPRM, over the last decade, the rail transit industry remains vulnerable to catastrophic occurrences.
Since 2004, the National Transportation Safety Board (NTSB) has investigated (or preliminarily investigated) 19 major rail transit accidents, and has issued 25 safety recommendations to FTA, including six (6) Urgent Recommendations. In conducting these investigations, the NTSB found a variety of probable causes for these accidents. Among them, equipment malfunctions; equipment in poor or marginal condition, including equipment that can pose particular risks to safety, such as signal systems; lack of vehicle crashworthiness; employee fatigue and fitness for duty issues; and employee error, such as inattentiveness or failure to follow a rail transit system's operating procedure. The NTSB also identified the lack of a strong safety culture and a lack of adequate oversight both by the rail transit systems' State Safety Oversight Agencies and FTA. Deficiencies in oversight—of the kind being addressed by this rulemaking—were specifically identified as a contributing factor for five of the 19 major accidents. As a result, the NTSB has made improving the operational safety of the rail transit industry one of its Top Ten Most Wanted Items in 2014.
FTA has also observed that while other modes of surface transportation, such as highway and commercial motor carrier, freight railroad and commercial trucking have achieved significant improvements in safety performance over the last decade, the public transportation industry's safety performance has not improved. Over the last decade, the rail transit industry actually has experienced increases in several key categories, including the number and severity of collisions, the number of worker fatalities and injuries, and the number and severity of passenger injuries. In this respect, the public transportation industry, and the nation's rail transit agencies in particular, are outliers to the overall U.S. DOT modal safety experience.
Perhaps coincidentally, FTA also notes that the current level of expenditure by the States and rail transit agencies on safety oversight activities falls considerably below one (1) percent of the roughly $4 billion that FTA awards to rail transit agencies each year. A review of safety programs administered by other modal administrations, such as the Federal Railroad Administration (FRA), the Federal Highway Administration (FHWA), the Federal Motor Carrier Safety Administration (FMCSA), and the Federal Aviation Administration (FAA), demonstrates that at least one (1) percent of the Federal investment is typically devoted to safety oversight activities and programs in most other related modes of transportation. Other modes have determined that this level of investment in safety returns positive dividends in safety performance while also addressing tight budget margins in the transportation industry.
Combined with a lack of resources devoted to safety oversight, FTA has observed that the operating, maintenance and service environments of the nation's rail transit agencies continue to change. Rail transit ridership is at an all-time high, while rail transit equipment and infrastructure is in a deteriorated condition. The heavier service cycles required to meet rising demand in some of the nation's largest urbanized areas create challenges for aging infrastructure with potential safety implications. FTA's Transit Asset Management (TAM) NPRM, authorized at 49 U.S.C. 5326, will attempt to address some of these challenges through the institution of formal asset management programs.
In addition, this NPRM also implements an earlier decision made by the Federal Transit Administrator to adopt the framework and principles of Safety Management Systems (SMS). This decision was communicated in a May 13, 2013 Dear Colleague letter to the public transportation industry. FTA's adoption of SMS better positions the SSOAs and rail transit agencies to address the nexus between safety and state of good repair more effectively.
MAP–21 creates a new regulatory role for FTA and the States that responds to known gaps in oversight and safety performance. For example, to address noted FTA and NTSB concerns regarding conflicts of interest and the ability of SSO agencies to act independently in the interest of public safety, 49 U.S.C. 5329(e)(4)(i) specifies that each SSO agency must have financial and legal independence from each of the rail fixed guideway public
To address the need for an enhanced safety regulatory program, 49 U.S.C. 5329(e)(2)(A–B) directs States to assume oversight responsibility for rail transit agencies in engineering and construction, as well as in revenue service. This requirement increases the number of States subject to the State Safety Oversight regulations from 28 to 30, and increases the number of rail transit agencies from 48 to 60 nationwide.
The statutory changes to State Safety Oversight include a new grant program to assist with the costs of compliance. Federal financial assistance is now available to States to help them develop and carry out their State Safety Oversight Programs (SSOPs), and may be used, specifically, for up to eighty percent of both the operational and administrative expenses of SSOAs, including the expenses of employee training.
On March 10, 2014, FTA announced its apportionment of $21,945,771 in funding to eligible States for their SSOPs and SSOAs for Federal Fiscal Year 2013, and $22,293,250 for Federal Fiscal Year 2014. 46 FR 13380. In addition, on February, 9, 2015, FTA announced the apportionment of $14,841,808 in funding to eligible States for SSOPs and SSOAs for Federal Fiscal Year 2015 through May 31, 2015. 80 FR 7254. Thus, for purposes of cost-benefit analysis, this rulemaking is revenue neutral between the Federal government and the States, and this has been factored into the analysis.
Specifically, in determining the additional costs that would be imposed through this rulemaking, we have factored the net transfer from FTA to the States and their SSOAs. The table below compares and contrasts the specific activities performed, the labor hours and the total costs expended under the existing 49 CFR part 659 requirements (as discussed above) with FTA's proposal for the MAP–21 program authorized at 49 U.S.C. 5329(e) and described in this NPRM. Readers should note that the 49 CFR part 659 labor hours and costs reflect 28 SSOAs and 48 rail transit agencies, while the 49 U.S.C. 5329(e) labor hours and costs reflect 30 SSOAs and 60 rail transit agencies. As discussed above, new definitions in 49 U.S.C. 5329 expand State Safety Oversight requirements to include rail transit agencies in construction and engineering phases of development.
Labor estimates for the activities in this NPRM were derived based on the hours required to complete them as reported by States already implementing the specific activities; the estimates and general discussion provided in the Senate report to the Public Transportation Safety Act of 2010 (S. 3638, 111th Congress); and the experience of FTA's legal, policy, grant making and safety team.
This table shows a minimum four-fold increase in the level of oversight activity performed to implement the NPRM. In particular, as part of proposed section 674.27, SSOAs would be required to establish a new set of activities unique to the oversight of SMS in the rail transit industry. The 30 SSOAs would be required to identify their “accountable executive” for the implementation of the SSO program, and determine their procedures and process for overseeing the effective functioning of each rail transit agency's SMS, including overseeing elements such as organizational accountability, safety climate and culture, committee structures, safety performance monitoring, safety audits and reviews, safety risk management, and, perhaps most importantly, the implementation and monitoring of safety risk mitigations. Through the MAP–21 SSO grant program, this additional oversight activity will be funded at no additional cost to the States. FTA welcomes comments and observations regarding the hours reported for the part 659 requirements and the estimates presented for the proposed activities in this NPRM.
As discussed above, this NPRM implements the framework and principles of Safety Management Systems. The costs included in the table below reflect FTA's estimation regarding the likely requirements of SMS adoption by the rail transit agencies in critical areas overseen by the SSO program, such as investigations, inspections, and reviews; safety data acquisition and analysis; and safety performance monitoring. Notably, we have not included the costs to develop and update safety plans and procedures under today's NPRM. These costs will be included in the Public Transportation Agency Safety Plan rulemaking. Therefore, while there are non-recurring costs under part 659, there are no non-recurring costs attributable to this NPRM.
This table depicts general increases on the order of 10 to 20 percent for the labor hours in most major activities currently performed to implement 49 CFR part 659, indicating enhanced activity in the specific area based on the more rigorous MAP–21 SSO program, as well as the requirements of additional collaboration and coordination with a significantly expanded SSO function in the State. Additional labor is provided to augment internal safety audit programs, manage corrective action plans, and implement hazard management programs. Activities
The most significant changes come in the “accident/incident investigation” and “maintain safety data” categories. With the enhanced role of the SSO agencies in accident and incident investigation, FTA proposes that the amount of time required for rail transit agencies to develop reports and document results will decrease. Through FTA's adoption of SMS principles, FTA and the SSO agencies ultimately will be working to ensure that operations and maintenance data and information can be reviewed and assessed in as close to real-time as possible to identify and address potential safety issues and concerns before they result in accidents. Safety performance monitoring will become a critical component of the SSO program.
FTA appreciates that the majority of this activity may be currently managed by other departments and personnel outside of the rail transit agency's safety department. For example, management information systems have already been adopted by rail transit agencies to support vehicle and infrastructure maintenance, control center operations, and construction management. However, the data collected and maintained in these systems may not be routinely assessed for safety issues, concerns, hazards or potential impacts. FTA's new MAP–21 program addresses NTSB and GAO recommendations that each rail transit agency evaluate this data from a safety perspective in as close to real-time as possible. Thus, the agency may be overstating the costs to rail transit agencies here, but does believe that, even for those rail transit agencies that already collect and maintain much of this data, there may be some additional costs associated with assessing this data for safety purposes in real-time.
It should be noted that for the MAP–21 columns, this table includes 60 rail transit agencies, as opposed to the 48 rail transit agencies covered by the 49 CFR part 659 requirements. Even if no other changes were addressed, increasing the number of covered rail transit agencies by 25 percent would raise the total cost of the SSO program considerably.
Based on the tables provided above, FTA estimates that minimum implementation of this NPRM will require a total of approximately $20 million for the 30 States to implement, and a total of roughly $22 million for the 60 rail transit agencies to implement.
Compared to current spending levels of State Safety Oversight activities, the proposed rule would require an
In terms of the actual costs to the States, FTA is providing approximately $22 million in grant funds each year to the States to off-set this NPRM's annual costs. This funding is treated as a transfer for the purposes of benefit-cost analysis. In addition, since the States already expend approximately $5 million to implement 49 CFR part 659 requirements, this existing expenditure will more than cover the 20 percent local match required in FTA's grant program. FTA therefore finds that that the States will bear no new net costs as a result of this NPRM. With regard to costs to the rail transit agencies, FTA currently provides funding that rail transit agencies may use for these purposes, but, since there is no safety-focused grant program similar to that for SSOs and each rail transit agency receives and uses its formula funds differently, we are unable to provide an estimate of how much FTA funds will be used here. We request comment on this point and also will revisit in the Transit Agency Safety Plan NPRM.
FTA believes that a significant portion of the incremental expenses may comprise activities that are already performed—and management information systems that are already maintained—by rail transit departments other than the safety department, such as operations, maintenance and performance monitoring. For instance, FTA reviews at rail transit agencies and SSO audits confirm that all rail transit agencies use and maintain formal systems to track rules checks performed on operators; inspections and preventative/corrective maintenance activities for vehicles and infrastructure; reports regarding the occurrence and cause of events resulting in service delays lasting longer than a prescribed period of minutes; and unusual occurrences reported during revenue service. Therefore, the cost estimate calculated above may overstate the true incremental costs of the changes to the SSO program, but is used here to be conservative. FTA requests comment on this point.
Doing more to analyze and assess this information from a safety perspective is at the core of SMS, and FTA anticipates that this level of active review of operations and maintenance data will ultimately result in cost savings for many rail transit agencies, as has been the case in the aviation and trucking industries. See,
As the 60 rail transit agencies affected by the NPRM gain greater experience with proactive safety data analysis focused on safety problem identification and the development of mitigation strategies, as well as enhanced verification techniques to assess the effectiveness of the implementation of these strategies, FTA expects that, as in other transportation industries, the rail transit agencies will begin receiving greater efficiencies on their return in this investment, not just related to safety. However, based on the newness of SMS implementation in the rail transit industry and SSO program, FTA does not propose including these kinds of operational gains as part of the benefits from this NPRM. FTA also has not yet had the opportunity to conduct SMS pilots in the rail transit industry which will provide even greater clarification regarding the full impacts on both the rail transit agencies and SSO program, although the agency is planning on conducting pilots to assist the industry with implementing SMS.
The safety benefits of the proposed changes are difficult to estimate quantitatively because they involve numerous small but important changes to State and agency safety practices, and because the overall rate of serious injuries on rail transit systems is already quite low. These changes to the SSO regulations address longstanding deficiencies in the current SSO structure and improve the ability of SSOAs to carry out their mission of improving safety on rail fixed guideway transit systems. In addition, NTSB has advocated for many of these changes based on their investigation of rail transit accidents, their analysis of the current SSO structure, and their expertise in ensuring safe operation across all modes of transportation. FTA likewise believes that the revised SSO structure and associated activities will enhance the safety of rail fixed guideway transit systems, increasing accountability and decreasing transit-related incidents, injuries, and fatalities.
That said, although this rule would not on its own implement SMS, it does create the organizational structure needed for SMS to be successful. Thus, FTA has considered how other transportation modes that are in the process of implementing SMS or similar systematic approaches to safety have estimated the benefits of their programs in reducing incidents and adverse outcomes. For example, although no two programs are identical, the Federal Railroad Administration (FRA) in its NPRM implementing its System Safety Program (SSP) (77 FR 55372, Sept. 7, 2012) provided anecdotal evidence that the program could lead to meaningful reductions in serious crashes. Similarly, in its final rule implementing SMS for air carriers, the Federal Aviation Administration estimated that its SMS program could yield a 20% reduction in crashes. 80 FR 1308, Jan. 8, 2015. Enhancements brought about by SMS also have supported transportation and oversight agencies in mitigating the impacts of those events that do occur.
FTA has, therefore, considered what percentage of potential safety benefits this rule would need to achieve in order to “break even” with the costs (including both the transfer of funds from FTA and the costs to the SSOs and rail transit agencies themselves) based on two different estimates of the potential benefit pool. FTA notes that this analysis is not intended to be the full analysis of the potential benefits of SMS for transit safety, which will be conducted in our subsequent safety rulemakings; rather, it is intended to provide some quantified estimate of the potential benefits of the changes to the SSO program proposed in this rule. Further, we note that this analysis may understate the potential benefits because we did not have information on some non-injury related costs associated with many incidents, particularly regarding property damage and travel delays. Also, as mentioned above, we did not include an estimate of FTA funds provided to transit agencies for these activities because, unlike with SSO funding, we did not have sufficient certainty on this funding level.
First, over the last six years, as reported by the SSO agencies in their annual reports to FTA, the rail transit industry has averaged approximately 975 safety events meeting 49 CFR part 659 accident reporting thresholds per year (
As an illustrative calculation, based on the above analysis, in order for the benefits of this rule to break even with the costs to both SSOs and rail transit agencies, this rule would only need to prevent 1.21% of these accidents per year, which does not include potentially significant unquantified costs related to property damage and disruption. FTA
Second, as an alternative, we performed a more narrow analysis of the potential safety benefits of the proposed regulation by reviewing the rail transit incidents specifically identified by the NTSB as related to inadequate safety oversight programs. Of the 19 major rail transit accidents the NTSB has investigated (or preliminarily investigated) since 2004, five had probable causes that included inadequate safety oversight on the part of the rail transit agency or FTA. These incidents and the corresponding damages and costs are detailed below.
Again using Departmental guidance regarding the valuation of fatalities and injuries,
As such, the total quantifiable cost for the five incidents is approximately $142.6 million (fatalities: $101.2 million, minor injuries: $6.0 million, moderate injuries $14.3 million, severe injuries: $7.6 million, property damage: $13.5 million) or approximately $14.3 million per year over a ten year period. The average cost per incident was $28.5 million, plus unquantified losses from travel delays and emergency response. The most costly incident, the 2009 WMATA crash, had total costs of over $100 million, including $91 million in monetized injuries and $12 million in property damage. While improved safety oversight cannot necessarily prevent all rail transit accidents, preventing even a single incident on the scale of the 2009 WMATA crash would yield societal benefits that exceed the incremental costs of compliance across multiple years of implementation, especially when considering FTA's funding of this program. Benefits would also accrue from the prevention of multiple, less severe incidents, including those where only property damage or travel delays occur. The agency requests comment and information on any other accidents that have been identified as being related to inadequate safety oversight programs.
In conducting a break even analysis, as in the above analysis, when considering the incremental costs to SSOs for this rule and rail transit agencies, this rule would need to prevent 1.6 of the types of accidents significant enough to be investigated by NTSB and identified as being caused by inadequate safety oversight per year in order to break even. Similarly, when FTA funding of the SSOs (but not the rail transit agencies) is taken into account, this rule would need to prevent 0.91 of these incidents in order to break even. However, we believe that including all of the costs to the rail transit agencies may overstate the costs in this illustrative analysis and is therefore a very conservative analysis. We request comment on this point.
All comments received on or before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the closing date will be filed in the docket and will be considered to the extent practicable. A final rule may be published at any time after close of the comment period.
Executive Orders 12866 and 13563 direct Federal 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. Also, Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. FTA is also required under 49 U.S.C. 5329(h) to “take into consideration the costs and benefits of each action the Secretary proposes to take under” section 5329.
FTA has determined this rulemaking is a nonsignificant regulatory action within the meaning of Executive Order 12866 and is nonsignificant within the meaning of the U.S. Department of Transportation's regulatory policies and procedures. FTA has determined that this rulemaking is not economically significant. The proposals set forth in this NPRM will not result in an effect on the economy of $100 million or more. The proposals set forth in the NPRM will not adversely affect the economy, interfere with actions taken or planned by other agencies, or generally alter the budgetary impact of any entitlements, grants, user fees, or loan programs.
In compliance with the Regulatory Flexibility Act (Pub. L. 96–354; 5 U.S.C. 601–612), FTA has evaluated the likely effects of the proposals set forth in this NPRM on small entities, and has determined that they will not have a significant economic impact on a substantial number of small entities. The recipients of the State Safety
This proposed rulemaking would not impose unfunded mandates as defined by the Unfunded Mandates Reform act of 1995 (Pub. L. 104–4; 109 Stat. 48). The Federal share for the grants made under 49 U.S.C. 5329(e)(6) is eighty percent. This proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $143.1 million or more in any one year (2 U.S.C. 1532).
This proposed rulemaking has been analyzed in accordance with the principles and criteria established by Executive Order 13132 (Aug. 4, 1999), and FTA has determined that the proposed action would not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. FTA has also determined that this proposed action would not preempt any State law or State regulation or affect the States' abilities to discharge traditional State governmental functions. Moreover, consistent with Executive Order 13132, FTA has examined the direct compliance costs of the NPRM on State and local governments and determined that the collection and analysis of the data is eligible for Federal funding as part of the State Safety Oversight program costs.
The regulations effectuating Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this proposed rulemaking.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Readers should note that the information collection will be specific to each State and its State Safety Oversight Agency (SSOA), to facilitate and record the SSOA's exercise of its oversight responsibilities. The paperwork burden for each State and its SSOA will be proportionate to the number of rail fixed guideway public transportation systems within that State, the type of mode of those systems (
Also, readers should note that FTA already collects information from States and SSOAs in accordance with the requirements of 49 U.S.C. 5330 and the regulations at 49 CFR part 659. Please see FTA's currently approved collection, 2132–0558, available at
Heretofore, there has been no Federal financial assistance available to States and their SSOAs to defray the costs of information collection under 49 U.S.C. 5330 and the longstanding regulations at 49 CFR part 659. The costs of information collection associated with today's NPRM would be eligible for reimbursement under the SSO grants authorized by 49 U.S.C. 5329(e)(6).
The National Environmental Policy Act of 1969 (42 U.S.C. 4321
This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (March 15, 1998), Governmental Actions and Interference with Constitutionally Protected Property Rights.
Executive Order 12898 (Feb. 8, 1994) directs every Federal agency to make environmental justice part of its mission by identifying and addressing the effects of all programs, policies, and activities on minority populations and low-income populations. The USDOT environmental justice initiatives accomplish this goal by involving the potentially affected public in developing transportation projects that fit harmoniously within their communities without compromising safety or mobility. Additionally, FTA has issued a program circular addressing environmental justice in public transportation, C 4703.1,
This action meets the applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996), Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
FTA has analyzed this proposed rulemaking under Executive Order 13045 (April 21, 1997), Protection of Children from Environmental Health Risks and Safety Risks. FTA certifies that this proposed rule will not cause an environmental risk to health or safety that may disproportionately affect children.
FTA has analyzed this proposed rulemaking under Executive Order 13175 (Nov. 6, 2000) and finds that the action will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; will not preempt tribal laws; and will not impose any new consultation requirements on Indian tribal governments. Therefore, a tribal summary impact statement is not required.
FTA has analyzed this proposed rulemaking under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). FTA has determined that this action is not a significant energy action under the Executive Order, given that the action is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not requirement.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
This rulemaking is issued under the authority of section 20021(a) of the Moving Ahead for Progress in the 21st Century Act (MAP–21), which requires the Secretary of Transportation to prescribe regulations for State Safety Oversight of rail fixed guideway public transportation systems. The authority is codified at 49 U.S.C. 5329(e)(9)(C). Also, the Secretary is authorized to issue regulations to carry out the general provisions of the Public Transportation Safety Program pursuant to 49 U.S.C. 5329(f)(7).
A Regulation Identification Number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN set forth in the heading of this document can be used to cross-reference this action with the Unified Agenda.
Grant Programs—Transportation, Mass Transportation, Reporting and recordkeeping requirements, Safety.
For the reasons set forth in the preamble, and under the authority of 49 U.S.C. 5329(e), 5329(f), and the delegations of authority at 49 CFR 1.91, FTA hereby amends Chapter VI of Title 49, Code of Federal Regulations, by adding Part 674, as set forth below:
This part carries out the mandate of 49 U.S.C. 5329(e) for State safety oversight of rail fixed guideway public transportation systems.
This part applies to States with rail fixed guideway public transportation systems; State safety oversight agencies that oversee the safety of rail fixed guideway public transportation systems; and entities that own or operate rail fixed guideway public transportation systems with Federal financial assistance authorized under 49 U.S.C. Chapter 53.
(a) The Federal Transit Administration (FTA) has adopted the principles and methods of Safety Management Systems (SMS) as the basis for enhancing the safety of public transportation in the United States. All rules, regulations, policies, guidance, best practices, and technical assistance administered under the authority of 49 U.S.C. 5329 will follow the principles and methods of SMS.
(b) In accordance with 49 U.S.C. 5329(e), a State that has a rail fixed guideway public transportation system has primary responsibility for overseeing the safety of that rail fixed guideway public transportation system. A State safety oversight agency must have sufficient authority, resources, and qualified personnel to oversee the number, size, and complexity of rail fixed guideway public transportation systems that operate within a State.
(c) FTA will make Federal financial assistance available to help an eligible State develop or carry out its State safety oversight program. Also, FTA will certify whether a State safety oversight program meets the requirements of 49 U.S.C. 5329(e) and is adequate to promote the purposes of the public transportation safety programs codified at 49 U.S.C. 5329.
As used in this part:
(1) Requires hospitalization for more than 48 hours, commencing within 7 days from the date of the injury was received;
(2) results in a fracture of any bone (except simple fractures of fingers, toes, or nose);
(3) causes severe hemorrhages, nerve, muscle, or tendon damage;
(4) involves any internal organ; or
(5) involves second- or third-degree burns, or any burns affecting more than 5 percent of the body surface.
(a) Pursuant to section 20030(e) of the Moving Ahead for Progress in the 21st Century Act (Pub. L. 112–141; July 6, 2012) (“MAP–21”), the statute now codified at 49 U.S.C. 5330, titled “State safety oversight,” will be repealed three years after the effective date of the regulations set forth in this part.
(b) Upon the effective date of the regulations set forth in this part, the regulations now codified at part 659 of this chapter will be rescinded.
Within three years of the effective date of this part, every State that has a rail fixed guideway public transportation system must have a State Safety Oversight Program (SSOP) that has been approved by the Administrator. FTA will audit each State's compliance at least triennially, consistent with 49 U.S.C. 5329(e)(9). At minimum, an SSOP must:
(a) Explicitly acknowledge the State's responsibility for overseeing the safety of the rail fixed guideway public transportation systems within the State;
(b) Demonstrate the State's ability to adopt and enforce Federal and relevant State law for safety in rail fixed guideway public transportation systems;
(c) Establish a State safety oversight agency, by State law, in accordance with the requirements of 49 U.S.C. 5329(e) and this part;
(d) Demonstrate that the State has determined an appropriate staffing level for the State safety oversight agency commensurate with the number, size, and complexity of the rail fixed guideway public transportation systems in the State, and that the State has consulted with the Administrator for that purpose;
(e) Demonstrate that the employees and other personnel of the State safety oversight agency who are responsible for the oversight of rail fixed guideway public transportation systems are qualified to perform their functions, based on appropriate training, including the successful completion of the Public Transportation Safety Certification Training Program; and
(f) Demonstrate that by law, the State prohibits any public transportation agency in the State from providing funds to the State safety oversight agency.
(a) Every State that must establish a State Safety Oversight Program in accordance with 49 U.S.C. 5329(e) must also establish a State Safety Oversight Agency (SSOA) for the purpose of overseeing the safety of rail fixed guideway public transportation systems within that State. Further, the State must ensure that:
(1) The SSOA is financially and legally independent from any public transportation agency the SSOA is obliged to oversee;
(2) The SSOA does not directly provide public transportation services in an area with a rail fixed guideway public transportation system the SSOA is obliged to oversee;
(3) The SSOA does not employ any individual who is also responsible for administering a rail fixed guideway public transportation system the SSOA is obliged to oversee;
(4) The SSOA has authority to review, approve, oversee, and enforce the public transportation agency safety plan for a rail fixed guideway public transportation system required by 49 U.S.C. 5329(d);
(5) The SSOA has investigative and enforcement authority with respect to the safety of all rail fixed guideway public transportation systems within the State;
(6) At least once every three years, the SSOA audits every rail fixed guideway public transportation system's compliance with the public transportation agency safety plan required by 49 U.S.C. 5329(d); and
(7) At least once a year, the SSOA reports the status of the safety of each rail fixed guideway public transportation system to the Governor, the FTA, and the board of directors, or
(b) At the request of the Governor of a State, the Administrator may waive the requirements for financial and legal independence and the prohibitions on employee conflict of interest under paragraphs (a)(1) and (a)(3) of this section, if the rail fixed guideway public transportation systems in design, construction, or revenue operations in the State have fewer than one million combined actual and projected rail fixed guideway revenue miles per year or provide fewer than ten million combined actual and projected unlinked passenger trips per year. However:
(1) If a State shares jurisdiction over one or more rail fixed guideway public transportation systems with another State, and has one or more rail fixed guideway public transportation systems that are not shared with another State, the revenue miles and unlinked passenger trips of the rail fixed guideway public transportation system under shared jurisdiction will not be counted in the Administrator's decision whether to issue a waiver.
(2) The Administrator will rescind a waiver issued under this subsection if the number of revenue miles per year or unlinked passenger trips per year increases beyond the thresholds specified in this subsection.
In an instance of a rail fixed guideway public transportation system that operates in more than one State, all States in which that rail fixed guideway public transportation system operates must either:
(a) Ensure that uniform safety standards and procedures in compliance with 49 U.S.C. 5329 are applied to that rail fixed guideway public transportation system, through a State safety oversight program that has been approved by the Administrator; or
(b) Designate a single entity that meets the requirements for an SSOA to serve as the SSOA for that rail fixed guideway public transportation system, through a State safety oversight program that has been approved by the Administrator.
(a) In accordance with 49 U.S.C. 5329(e)(6), FTA will make grants of Federal financial assistance to eligible States to help the States develop and carry out their State Safety Oversight Programs. This Federal financial assistance may be used for reimbursement of both the operational and administrative expenses of State Safety Oversight Programs, consistent with the uniform administrative requirements for grants to States under 2 CFR parts 200 and 1201. The expenses eligible for reimbursement include, specifically, the expense of employee training and the expense of establishing and maintaining a State Safety Oversight Agency in compliance with 49 U.S.C. 5329(e)(4).
(b) The apportionments of available Federal financial assistance to eligible States will be made in accordance with a formula, established by the Administrator, following opportunity for public notice and comment. The formula will take into account fixed guideway vehicle revenue miles, fixed guideway route miles, and fixed guideway vehicle passenger miles attributable to all rail fixed guideway systems within each eligible State not subject to the jurisdiction of the Federal Railroad Administration.
(c) The grants of Federal financial assistance for State safety oversight shall be subject to terms and conditions as the Administrator deems appropriate.
(d) The Federal share of the expenses eligible for reimbursement under a grant for State safety oversight activities shall be eighty percent of the reasonable costs incurred under that grant.
(e) The non-Federal share of the expenses eligible for reimbursement under a grant for State safety oversight activities may not be comprised of Federal funds, any funds received from a public transportation agency, or any revenues earned by a public transportation agency.
(a) The Administrator must determine whether a State Safety Oversight Program meets the requirements of 49 U.S.C. 5329(e). Also, the Administrator must determine whether a State Safety Oversight Program is adequate to promote the purposes of 49 U.S.C. 5329, including, but not limited to, the National Public Transportation Safety Plan, the Public Transportation Safety Certification Training Program, and the Public Transportation Agency Safety Plans (“Transit Agency Safety Plans”).
(b) The Administrator must issue a certification to a State whose State Safety Oversight Program meets the requirements of 49 U.S.C. 5329(e). The Administrator must issue a denial of certification to a State whose State Safety Oversight Program does not meet the requirements of 49 U.S.C. 5329(e).
(c) In an instance in which the Administrator issues a denial of certification to a State whose State Safety Oversight Program does not meet the requirements of 49 U.S.C. 5329(e), the Administrator must provide a written explanation, and allow the State an opportunity to modify and resubmit its State Safety Oversight Program for the Administrator's approval. In the event the State is unable to modify its State Safety Oversight Program to merit the Administrator's issuance of a certification, the Administrator must notify the Governor of that fact, and must ask the Governor to take all possible actions to correct the deficiencies that are precluding the issuance of a certification for the State Safety Oversight Program. In his or her discretion, the Administrator may also impose financial penalties as authorized by 49 U.S.C. 5329(e), which may include:
(1) Withholding SSO grant funds from the State;
(2) Withholding up to five percent of the 49 U.S.C. 5307 Urbanized Area formula funds appropriated for use in the State or urbanized area in the State, until such time as the SSOP can be certified; or
(3) Requiring all of the rail fixed guideway public transportation systems governed by the SSOP to spend up to 100 percent of their Federal funding under 49 U.S.C. chapter 53 for “safety-related improvements” on their systems, only, until such time as the SSOP can be certified.).
(d) In making a determination whether to issue a certification or a denial of certification for a State Safety Oversight Program, the Administrator must evaluate whether the cognizant State Safety Oversight Agency has sufficient authority, resources, and expertise to oversee the number, size, and complexity of the rail fixed guideway public transportation systems that operate within the State, or will attain the necessary authority, resources, and expertise in accordance with a developmental plan and schedule set forth to a sufficient level of detail in the State Safety Oversight Program.
(a) In making a decision to impose financial penalties as authorized by 49 U.S.C. 5329(e), and determining the nature and amount of the financial penalties, the Administrator shall consider the extent and circumstances of the noncompliance; the operating budgets of the State Safety Oversight Agency and the rail fixed guideway public transportation systems that will be affected by the financial penalties; and such other matters as justice may require.
(b) If a State fails to establish a State Safety Oversight Program that has been approved by the Administrator within three years of the effective date of this part, FTA will be prohibited from obligating Federal financial assistance apportioned under 49 U.S.C. 5338 to any entity in the State otherwise eligible to receive that Federal financial assistance, in accordance with 49 U.S.C. 5329(e)(3).
(a) A State, a State Safety Oversight Agency, or a Rail Transit Agency may withhold an investigation report prepared or adopted in accordance with these regulations from being admitted as evidence or used in a civil action for damages resulting from a matter mentioned in the report.
(b) This part does not require public availability of any data, information, or procedures pertaining to the security of a rail fixed guideway public transportation system or its passenger operations.
(a) A State Safety Oversight Agency (SSOA) must establish minimum standards for the safety of all rail fixed guideway public transportation systems within its oversight. These minimum standards must be consistent with the National Public Transportation Safety Plan, the Public Transportation Safety Certification Training Program, the principles and methods of Safety Management Systems, and all applicable Federal and State law.
(b) Basic principles and methods of Safety Management Systems are set forth in an Appendix to this part, the “Safety Management Systems (SMS) Framework.”
(c) An SSOA must review and approve the Transit Agency Safety Plan for every rail fixed guideway public transportation system within its oversight. An SSOA must oversee a Rail Transit Agency's execution of its Transit Agency Safety Plan. An SSOA must enforce the execution of a Transit Agency Safety Plan, through an order of a corrective action plan or any other means, as necessary or appropriate. An SSOA must ensure that a Transit Agency Safety Plan meets the requirements for Public Transportation Agency Safety Plans at 49 U.S.C. 5329(d).
(d) An SSOA has primary responsibility for the investigation of any hazard or risk that threatens the safety of a rail fixed guideway public transportation system within its oversight. An SSOA has primary responsibility for the investigation of any allegation of noncompliance with a Transit Agency Safety Plan. These responsibilities do not preclude the Administrator from exercising his or her authority under 49 U.S.C. 5329(f) or 49 U.S.C. 5330.
(e) An SSOA has primary responsibility for the investigation of an accident on a rail fixed guideway public transportation system. This responsibility does not preclude the Administrator from exercising his or her authority under 49 U.S.C. 5329(f) or 49 U.S.C. 5330.
(f) An SSOA may enter into an agreement with a contractor for assistance in investigating accidents and incidents and for expertise the SSOA does not have within its own organization.
(g) All personnel and contractors employed by an SSOA must comply with the requirements of the Public Transportation Safety Certification Training Program.
(a) A State Safety Oversight Agency (SSOA) must adopt and distribute a written State safety oversight program standard, consistent with the State Safety Oversight Program, the National Public Transportation Safety Plan, and the principles and methods of Safety Management Systems. This program standard must identify the processes and procedures that govern the activities of the SSOA. Also, this program standard must identify the processes and procedures a Rail Transit Agency must have in place to comply with the program standard. At minimum, this program standard must meet the following requirements:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(b) At least once a year an SSOA must submit its program standard and any referenced program procedures to FTA, with an indication of any revisions made to the program standard since the last annual submittal. FTA will evaluate the SSOA's program standard as part of its continuous evaluation of the State Safety Oversight Program, and in preparing FTA's report to Congress on the certification status of that State Safety Oversight Program, in accordance with 49 U.S.C. 5329(e)(8).
(a) In determining whether to approve a Transit Agency Safety Plan for a rail fixed guideway public transportation system, a State Safety Oversight Agency (SSOA) must evaluate whether the Transit Agency Safety Plan is based on an adequate Safety Management System; is consistent with the National Public Transportation Safety Plan; is in compliance with the requirements of 49 U.S.C. 5329(d), and the program standard set by the SSOA.
(b) In determining whether a Transit Agency Safety Plan is based on an adequate Safety Management System, an SSOA must determine, specifically, whether the Transit Agency Safety Plan sets forth a sufficiently explicit safety policy for the rail fixed guideway public transportation system; a sufficiently explicit process for safety risk management, with adequate means of risk control for the rail fixed guideway public transportation system; adequate means of safety assurance for the rail fixed guideway public transportation system; and adequate means of safety promotion to support the execution of the Transit Agency Safety Plan by all employees, agents, and contractors for the rail fixed guideway public transportation system.
(c) In an instance in which an SSOA does not approve a Transit Agency Safety Plan, the SSOA must provide a written explanation, and allow the Rail Transit Agency an opportunity to modify and resubmit its Transit Agency Safety Plan for the SSOA's approval.
At least once every three years, a State Safety Oversight Agency (SSOA) must conduct a complete audit of a Rail Transit Agency's compliance with its Transit Agency Safety Plan. Alternatively, an SSOA and a Rail Transit Agency may agree that the SSOA will conduct the audit on an on-going basis over the three-year timeframe. At the conclusion of the three-year audit cycle, the SSOA shall issue a report with findings and recommendations arising from the audit, which must include, at minimum, an analysis of the effectiveness of the Transit Agency Safety Plan, recommendations for improvements, and a corrective action plan, if necessary or appropriate. The Rail Transit Agency must be given an opportunity to comment on the findings and recommendations.
(a)
(b)
(a) A State Safety Oversight Agency (SSOA) must conduct an independent investigation of any Accident or Incident that is reported to the SSOA and the Administrator in accordance with § 674.33(a). In any instance in which a Rail Transit Agency is conducting its own internal investigation of the Accident or Incident, the SSOA and the Rail Transit Agency must coordinate their investigations in accordance with the State safety oversight program standard and any agreements in effect.
(b) Within a reasonable time, an SSOA must issue a written report on its investigation of an Accident or Incident in accordance with established reporting requirements. The report must describe the investigation activities; identify the factors that caused or contributed to the Accident or Incident; and set forth a corrective action plan, as necessary or appropriate. The SSOA must formally adopt the report of an Accident or Incident and transmit that report to the Rail Transit Agency for review and concurrence. If a Rail Transit Agency does not concur with an SSOA's report, the SSOA may allow the Rail Transit Agency to submit a written dissent from the report, which may be included in the report, in the discretion of the SSOA.
(c) All personnel and contractors that conduct investigations on behalf of an SSOA must be trained to conduct investigations in accordance with the Public Transportation Safety Certification Training Program.
(a) In any instance in which a Rail Transit Agency must develop and carry out a corrective action plan, the State Safety Oversight Agency (SSOA) must review and approve the plan before the Rail Transit Agency carries out the plan. A corrective action plan must describe, specifically, the actions the Rail Transit
(b) In any instance in which a safety Event on the Rail Transit Agency's rail fixed guideway public transportation system is the subject of an investigation by the National Transportation Safety Board (NTSB), the SSOA must evaluate whether the findings or recommendations by the NTSB require a corrective action plan by the Rail Transit Agency, and if so, the SSOA must order the Rail Transit Agency to develop and carry out a corrective action plan.
(a) On or before March 15 of each year, a State Safety Oversight Agency (SSOA) must submit the following material to FTA:
(1) The State safety oversight program standard adopted in accordance with § 674.27, with an indication of any changes to the program standard during the preceding twelve months;
(2) Evidence that each of its employees and contractors is in compliance with the requirements of the Public Transportation Safety Certification Training Program;
(3) A publicly available report that summarizes its oversight activities for the preceding twelve months, describes the causal factors of accidents or incidents identified through investigation, and identifies the status of corrective actions, changes to Transit Agency Safety Plans, and the level of effort by the SSOA in carrying out its oversight activities;
(4) A summary of the triennial audits completed during the preceding twelve months, and the Transit Agencies' progress in carrying out corrective action plans arising from triennial audits conducted in accordance with § 674.31;
(5) Evidence that the SSOA has reviewed and approved any changes to the Transit Agency Safety Plans during the preceding twelve months; and
(6) A certification that the SSOA is in compliance with the requirements of this part.
(b) These materials must be submitted electronically through a reporting system specified by FTA.
(a) A State Safety Oversight Agency (SSOA) must be financially and legally independent from any rail fixed guideway public transportation system under the oversight of the SSOA, unless the Administrator has issued a waiver of this requirement in accordance with § 674.13(b).
(b) An SSOA may not employ any individual who provides services to a rail fixed guideway public transportation system under the oversight of the SSOA, unless the Administrator has issued a waiver of this requirement in accordance with § 674.13(b).
(c) A contractor may not provide services to both an SSOA and a rail fixed guideway public transportation system under the oversight of that SSOA.
The Federal Transit Administration (FTA) is adopting the principles and methods of Safety Management Systems (SMS) as the basis for the National Public Transportation Safety Program. With a focus on organization-wide safety policy, proactive hazard management, strong safety communication between workers and management, targeted safety training, and clear accountabilities and responsibilities for critical safety activities, SMS provides an enhanced structure for addressing the safety provisions specified in the Moving Ahead for Progress in the 21st Century Act (MAP–21).
SMS is a formal, top-down, organization-wide approach to managing safety risks and assuring the effectiveness of safety risk mitigations. The specific components and sub-components of FTA's SMS framework are discussed in Section V of this Appendix.
Building on the public transportation industry's four decades of experience with system safety, SMS supplements traditional engineering processes by integrating management systems and organizational culture into critical safety risk management and assurance functions. As a result, SMS ensures that each public transportation agency, no matter its size or service environment, has the necessary organizational structures, accountabilities, activities and tools in place to direct and control resources to optimally manage safety.
Focusing on collaboration and information sharing, SMS helps management and labor work together to control risk better, detect and correct safety problems earlier, share and analyze safety data more effectively, and measure safety performance more clearly. The ultimate goal of SMS is to ensure that the public transportation agency has an inclusive and effective process to direct resources to optimally manage safety.
SMS establishes lines of safety accountability throughout an organization, starting at the executive management level, and provides a structure to support a sound safety culture from the front-line to the boardroom. SMS enables agencies to address organizational deficiencies that may lead to safety issues or unidentified safety risks, identify system-wide trends in safety, and manage the potential consequences of hazards before they result in incidents or accidents.
SMS is scalable to organizations of any size and flexible enough to be effective in all transit environments, from the largest urban operator to the smallest rural transit system provider. SMS also provides oversight agencies with new tools, approaches, and opportunities to align safety priorities and promote continuous improvement.
In the public transportation safety provisions of the Moving Ahead for Progress in the 21st Century Act (MAP–21), FTA, the States and the public transportation industry have been presented with a rare opportunity to implement a modern regulatory framework that will help a safe industry become even safer. Adopting SMS principles will further deepen the industry's commitment to the safety of its passengers, employees, equipment and facilities and will strengthen its core competencies in hazard identification, safety data acquisition and analysis, and internal auditing. Most significantly, SMS offers the promise of a stronger culture for employees and managers to work together to solve safety problems.
Service providers within the public transportation industry can vary greatly based on size, complexity and operating characteristics. Transit agency management needs processes, activities and tools that scale to size, complexity and uniqueness of the transit system. SMS provides such an approach. SMS is flexible, and can be scaled to the mode, size, and complexity of any transit operator, in any environment—urban, suburban, or rural. The extent to which the transit agency's SMS processes, activities and tools are used and documented will vary from agency to agency. For a small bus operation, that SMS is going to be simple and straightforward. For a larger transit agency with hundreds or thousands of employees and multiple modes, that system is going to be more complicated.
SMS scales itself to reflect the size and complexity of the operation, but the fundamental accountability remains the same. FTA's SMS Framework establishes the accountabilities, processes and activities necessary to implement an effective SMS. However, the transit agency will determine the level of detail necessary to identify and evaluate their own unique safety risks and target their resources to manage those safety risks.
SMS establishes lines of safety accountability throughout an organization,
SMS does not require an Accountable Executive to be an expert in safety. Rather, the Accountable Executive must understand how the SMS works in his or her organization; know the key personnel to call upon for evaluating safety information; and grasp the significant safety issues that face the organization. The Accountable Executive should use the reports and analysis performed as part of the SMS process to support the agency's decision-making. For an Accountable Executive, safety information, like financial, schedule and service information, is an integral part of how resources are allocated, budgets are set, and risks are managed.
As depicted below, FTA's SMS Framework is comprised of four key components and eleven sub-components that work together to refine, reinforce, and sustain the implementation of an SMS throughout a transit agency:
(1) Safety Management Policy,
(2) Safety Risk Management,
(3) Safety Assurance, and
(4) Safety Promotion.
The component
The sub-components of the Safety Management Policy component are:
Critical to the value of the safety management policy statement, and to the operation of the SMS overall, is the introduction of an unambiguous clause reflecting executive level support for an effective employee safety reporting program.
The safety management policy statement also documents management's commitment to continuous safety improvement, as well as to the continuous improvement of the safety management system itself.
The Accountable Executive signs the safety management policy statement, which is distributed, with visible support from executive management, throughout the transit agency.
This sub-component provides for the identification of an Accountable Executive and the definition of the required accountabilities, responsibilities and authorities of the post holder. The Accountable Executive is ultimately accountable for the implementation and continuous operation of the transit agency's SMS, ensuring that the transit agency has allocated resources and implemented mechanisms for the efficient and effective management of safety through its SMS to an extent commensurate to its needs, possibilities and constraints.
The sub-component also provides for the appointment of a subject matter expert for the implementation and day-to-day operation of the SMS, the lines of relationship of the post holder with the Accountable Executive and the transit agency's governance structure, and the appointment of the staff necessary to support the post holder in the day-to-day operation of the SMS.
It lastly provides for the definition of accountabilities, responsibilities and authorities of executive and senior management regarding the effective and efficient operation of the SMS.
While safety management accountabilities, responsibilities and their delegation, and authorities may vary from agency to agency, they must nevertheless be defined and implemented.
This sub-component provides for the requirements of the agency to document its overall approach to the management of system, the activities for SMS implementation and its subsequent day-to-day operation, and the activities or procedures for the management of new or revised safety requirements, regulatory or otherwise.
While the extent and complexity of the SMS documentation will be commensurate to the agency's size and complexity, SMS documentation and records must be readily available to all those with accountabilities for SMS performance or responsibilities for SMS implementation and operation.
The component Safety Risk Management provides for the activities and tools a transit agency needs in order to identify precursors of safety concerns that might present during service delivery as well as their supporting operations. This allows a transit agency to anticipate the potential negative consequences of safety concerns, by evaluating whether it has taken enough precautions to control the potential consequences of identified safety concerns.
Safety risk management is an ongoing and never-ending process. Safety risk management involves activities that allow the identification of hazards associated with the operation and maintenance of a public transportation system. Once hazards are identified, the Safety Risk Management process provides for the analysis of the potential consequences of identified hazards, for the evaluation of the safety risk of the potential consequences, and lastly for the development and implementation safety risk mitigations to address the anticipated, potential consequences of hazards.
The sub-components of Safety Risk Management component are:
The component
The sub-components of the Safety Assurance component are:
The component
Safety promotion is a critical component of an efficient and effective SMS, setting the tone for the transit agency's safety management activities and helping to build a positive safety culture.
The two sub-components of the Safety Promotion component are:
At the front-line employee level, safety management training should provide for the development of
Natural Resources Conservation Service (NRCS) and the Commodity Credit Corporation (CCC), United States Department of Agriculture (USDA).
Interim rule with request for comments.
The Agricultural Act of 2014 (the 2014 Act) consolidates the purposes of the Farm and Ranch Lands Protection Program (FRPP), Grassland Reserve Program (GRP), and Wetlands Reserve Program (WRP) into one easement program called the Agricultural Conservation Easement Program (ACEP). ACEP restores, protects, and enhances wetland on eligible land; protects the agricultural use, viability, and related conservation values of eligible land by limiting non-agricultural uses of that land; and protects grazing uses and related conservation values by restoring and conserving eligible land. This interim rule with request for comments sets forth the policies and procedures related to implementation of ACEP as authorized by the 2014 Act. Since the Conservation Farm Option (CFO) is a repealed program that was never implemented, NRCS is replacing the CFO regulations at 7 CFR part 1468 with the regulations necessary to implement ACEP.
You may submit comments by one of the following methods:
•
•
NRCS will post all comments on
Kim Berns, 202–720–1882.
Persons with disabilities who require alternative means for communication (Braille, large print, audio tape, etc.) should contact the USDA TARGET Center at: 202–720–2600 (voice and TDD).
Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Upon implementation of this rule the Natural Resources Conservation Service intends to conduct a retrospective review of this rule with the purpose of improving program performance, and better understanding the longevity of conservation implementation.
The Office of Management and Budget (OMB) designated this interim rule, with request for comment, a significant regulatory action. The administrative record is available for public inspection at the Department of Agriculture, Natural Resources Conservation Service, 1400 Independence Avenue SW., Room 5831 South Building, Washington, DC. In accordance with Executive Order 12866, NRCS conducted an economic analysis of the potential impacts associated with this program. A summary of the economic analysis can be found at the end of this preamble, and a copy of the analysis is available upon request from Kim Berns, Director, Easement Programs Division, U.S. Department of Agriculture, Natural Resources Conservation Service, Post Office Box 2890, Washington, DC 20013–2890; or at:
Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your comments on this interim rule, we invite your comments on how to make the provisions easier to understand. For example:
• Are the requirements in the rule clearly stated? Are the scope and intent of the rule clear?
• Does the rule contain technical language or jargon that is not clear?
• Is the material logically organized?
• Would changing the grouping or order of sections or adding headings make the rule easier to understand?
• Could we improve clarity by adding tables, lists, or diagrams?
• Would more, but shorter, sections be better? Are there specific sections that are too long or confusing?
• What else could we do to make the rule easier to understand?
The Regulatory Flexibility Act (5 U.S.C. 601–612) (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute. NRCS did not prepare a regulatory flexibility analysis for this rule because NRCS is not required by 5 U.S.C. 553, or any other provision of law, to publish a notice of proposed rulemaking with respect to the subject matter of this rule. Even so, NRCS has determined that this action, while mostly affecting small entities, will not have a significant economic impact on a substantial number of these small entities. NRCS made this determination based on the fact that this regulation only impacts those who choose to participate in the program. Small entity applicants will not be affected to a greater extent than large entity applicants.
Section 1246(c) of the Food Security Act of 1985 (the 1985 Act), as amended by Section 2608 of the Agricultural Act of 2014, requires that the Secretary of Agriculture use the authority in section 808(2) of title 5, United States Code, which allows an agency to forego Congressional Review Act usual 60-day Congressional Review delay of the effective date of a major regulation if the agency finds that there is a good cause to do so. NRCS hereby determines that it has good cause to do so in order to meet the Congressional intent to have the conservation programs, authorized or amended under Title XII of the 1985 Act, in effect as soon as possible. NRCS also determined it has good cause to forgo delaying the effective date given the critical need to let agricultural producers know what programmatic changes are being made so that they can make financial plans accordingly prior to planting season. For these reasons, this rule is effective upon publication in the
A programmatic Environmental Assessment (EA) has been prepared in association with this rulemaking. The analysis has determined there will not be a significant impact to the human environment and as a result, an Environmental Impact Statement (EIS) is not required to be prepared (40 CFR 1508.13). The EA and Finding of No Significant Impact (FONSI) are available for review and comment for 30 days from the date of publication of this interim rule in the
A copy of the EA and Finding of No Significant Impact (FONSI) may be obtained from the following Web site:
USDA has determined through a Civil Rights Impact Analysis that this interim rule discloses no disproportionately adverse impacts for minorities, women, or persons with disabilities. The data presented in the Civil Rights Impact Analysis indicate producers who are members of the protected groups have participated in NRCS conservation programs at parity with other producers. Extrapolating from historical participation data, it is reasonable to conclude that ACEP will be administered in a nondiscriminatory manner as the predecessor programs have been. Outreach and communication strategies are in place to ensure all producers will be provided the same information to allow them to make informed compliance decisions regarding the use of their lands that will affect their participation in U.S. Department of Agriculture (USDA) programs. NRCS conservation programs apply to all persons equally regardless of their race, color, national origin, gender, sex, or disability status. Therefore, this interim rule portends no adverse civil rights implications for women, minorities, and persons with disabilities. Copies of the Civil Rights Impact Analysis are available, and may be obtained from Kim Berns, Director, Easement Programs Division, U.S. Department of Agriculture, Natural Resources Conservation Service, Post Office Box 2890, Washington, DC 20013–2890, or electronically at:
Section 1246 of the Food Security Act of 1985 (the 1985 Act) as amended by the Agricultural Act of 2014 (the 2014 Act) requires that the implementation of this provision be carried out without regard to the Paperwork Reduction Act, chapter 35 of Title 44, U.S.C. Therefore, NRCS is not reporting recordkeeping or estimated paperwork burden associated with this interim rule.
NRCS is committed to compliance with the Government Paperwork Elimination Act and the Freedom to E-File Act, which require government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.
Pursuant to section 304 of the Federal Crop Insurance Reform Act of 1994 (Pub. L. 103–354), USDA classified this rule as non-major. Therefore, a risk analysis was not conducted.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, Public Law 104–4, USDA assessed the effects of this interim rule on State, local, and Tribal governments, and the public. This rule does not compel the expenditure of $100 million or more by any State, local, or Tribal governments or anyone in the private sector; therefore, a statement under section 202 of the Unfunded Mandates Reform Act of 1995 is not required.
This interim rule has been reviewed in accordance with the requirements of Executive Order 13132, Federalism. NRCS has determined that this interim rule conforms with the Federalism principles set forth in the Executive Order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities on the various levels of government. Therefore, NRCS concludes that this interim rule does not have Federalism implications.
This interim rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. Executive Order 13175 required Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have been substantial direct effects on (1) one or more Indian Tribes, (2) the
OMB published two regulations, codified at 2 CFR part 25 and 2 CFR part 170, to assist agencies and recipients of Federal financial assistance in complying with the Federal Funding Accountability and Transparency Act of 2006 (FFATA) (Pub. L. 109–282, as amended). Both regulations have implementation requirements effective as of October 1, 2010.
The regulations at 2 CFR part 25 require, with some exceptions, recipients of Federal financial assistance to apply for and receive a Dun and Bradstreet Universal Numbering Systems (DUNS) number and register in System Award Management (SAM). The regulations at 2 CFR part 170 establish new requirements for Federal financial assistance applicants, recipients, and subrecipients. The regulation provides standard wording that each agency must include in its awarding of financial assistance that requires recipients to report information about first-tier subawards and executive compensation under those awards.
NRCS has determined that 2 CFR part 25 and 2 CFR part 170 applies to ACEP financial assistance provided to entities. Therefore, NRCS has incorporated, by reference, these registration and reporting requirements into the ACEP regulations and will continue to include the requisite provisions as part of assistance agreements.
The Agricultural Conservation Easement Program (ACEP) is a voluntary program to help farmers and ranchers preserve their agricultural land and restore, protect, and enhance wetlands on eligible lands. The program has two easement enrollment components: (1) Agricultural land easements; and (2) wetland reserve easements. Under the agricultural land easement component, NRCS provides matching funds to State, Tribal, and local governments, and nongovernmental organizations with farm and ranch land protection programs to purchase permanent agricultural land easements. Under the wetland reserve easement component, NRCS protects wetlands by purchasing directly from owners a reserved interest in eligible land or entering into 30-year contracts on acreage owned by Indian Tribes, in each case providing for the restoration, enhancement, and protection of wetlands and associated lands. Wetland reserve easements may be permanent, 30-years, or the maximum duration authorized by State law.
The 2014 Act kept much of the substance of the statutory provisions that originally existed for the Wetlands Reserve Program (WRP) and Farm and Ranch Lands Protection Program (FRPP), with land eligibility elements from the Grassland Reserve Program (GRP) incorporated. In particular, ACEP as authorized by the 2014 Act:
• Consolidates FRPP, GRP, and WRP easement options into one program, and repeals these three programs; and
• Incorporates elements of FRPP and GRP into the agricultural land easement component of ACEP, and elements of WRP into the wetland reserve easement component of ACEP.
ACEP provisions are organized by those provisions that affect the entire program, provisions that affect only the Agricultural Land Easement component, and provisions that affect only the Wetlands Reserve Easement component. Provisions that affect the entire program include:
• Identification of the following lands as ineligible—
○ Federal lands except lands held in trust for Indian Tribes.
○ State-owned lands, including lands owned by agencies or subdivisions of the State or unit of local government.
○ Land subject to an existing easement or deed restriction that provides similar protection that would be achieved by enrollment.
○ Lands that have onsite or offsite conditions which would undermine meeting the purposes of the program.
• Authorization for easement subordination, modification, exchange, termination of easements under specific criteria.
• Identification that lands enrolled in FRPP, GRP, and WRP are considered enrolled in ACEP.
• Transition of contracts, agreements, and easements entered into prior to October 1, 2013, creating a pool of funds from each of the original programs to address existing enrollments, to remain available until expended.
Provisions that affect only the Agricultural Land Easement Component include:
• Limiting the Federal share of the easement cost for projects that are not
• Protecting grasslands of special environmental significance by authorizing NRCS to pay up to 75 percent of the fair market value of the agricultural land easement for the enrollment of such grasslands.
• Providing flexibility for projects of special significance by authorizing NRCS to waive the eligible entity cash contribution requirement with no increase in Federal share where the landowner voluntarily increases the landowner contribution commensurate to the amount of the waiver and the property is in active agricultural production.
• Maintaining a certification process for eligible entities.
• Prohibiting the assigning of a higher priority to an application solely on the basis of lesser cost to the program.
• Requiring all easements to be subject to an
Provisions that affect only the Wetland Reserve Easement Component include:
• Maintaining most elements of WRP eligibility and administrative framework.
• Authorizing a waiver process to allow enrollment of Conservation Reserve Program (CRP) lands established to trees.
• Allowing ranking criteria to consider the extent to which a landowner or other person or entity leverages the Federal investment.
• Reducing length of ownership requirement prior to enrollment from 7 years to 24 months.
• Keeping WRP easement compensation framework for wetland reserve easements.
The enrollment options under ACEP differ slightly from the source programs because ACEP does not incorporate GRP rental agreements or the authority for the Secretary of Agriculture to directly purchase and hold grassland easements; requires a State or other entity to provide 50 percent of the WRE-easement cost for lands meeting the closed basin lake WRE eligibility criteria; and eliminates the stand-alone wetland Restoration Cost-Share Agreements without an associated easement.
With these slight differences acknowledged, NRCS is incorporating the substance of many of the regulatory provisions of FRPP and WRP originally promulgated at 7 CFR part 1491 and 7 CFR part 1467, respectively in this regulation. However, ACEP is a consolidated program, and therefore, NRCS has organized these provisions into three subparts. Subpart A contains provisions that apply to both agricultural land easements and to wetland reserve easements and 30-year contracts; subpart B contains provisions specific to the implementation of agricultural land easements; and subpart C contains provisions specific to the implementation of wetland reserve easements and 30-year contracts. These subparts, and their constituent provisions, are described more fully below, including a discussion about how NRCS will exercise provisions that are new or different from the predecessor programs.
This section sets forth the requirements, policies, and procedures for ACEP; identifies that ACEP is available in all 50 States, District of Columbia, and certain territories; describes how the remainder of the regulation is organized; and addresses stewardship responsibilities associated with existing easements.
This section identifies that ACEP is administered under the general supervision and direction of the NRCS Chief, who is a Vice President of the Commodity Credit Corporation (CCC), and sets forth the roles and responsibilities of NRCS staff and other agencies that assist with ACEP implementation.
The purpose of the definitions section set forth at § 1468.3 is to ensure consistent interpretation of the terms used throughout the regulation. These definitions are the same definitions that were used to implement FRPP or WRP with adjustments made, where needed, to further the purposes of ACEP as authorized by the 2014 Act.
The definitions of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The term “
The term “
The terms for “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The term “
The term “
The term “
Definitions for “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The term “
The term “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of the “
The definition of “
The definition of “
The definition of “
The definition of “
The term “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The definition of “
The term “
The definition of “
The definition of “
The definition of “
The term “
The definition of “
The definition of “
The definition of “
This section identifies the different programmatic relationships that NRCS has with persons, legal entities, or eligible entities that receive payment under ACEP in return for participation in the program and the nature of the appeal rights that flow from these relationships. Additionally, NRCS clarifies the scope of program participation so that it is clear that prior to the transfer of property rights and the payment of compensation, NRCS decisions that affect the participant adversely are appealable under NRCS appeal procedures, including a direct appeal to the National Appeals Division (NAD) as provided in 7 CFR part 11. NRCS determinations that are after easement closing would not be subject to the appeal process in 7 CFR part 11. In the latter situation, a WRE landowner, or ALE eligible entity as applicable, with easement lands that are not in compliance with the easement terms would be provided advance notice of the NRCS determination and the landowner or eligible entity would be provided the opportunity to file an appeal with the appropriate State Conservationist.
NRCS enters into agreements with and makes payments to eligible entities under ACEP–ALE, and thus, the eligible entities are the program participants under subpart B. NRCS enters into agreements with and makes payment directly to landowners of eligible land under ACEP–WRE, and thus, the private landowners are the program participants under subpart C. Given the different program agreement relationships, the appeal rights differ.
This section is similar to other conservation program provisions and is included to describe the authority which NRCS exercises to protect the Federal investment in conservation easements from fraudulent activities.
This section implements the new easement administration provisions authorized by section 1265D(c) of the 1985 Act as added by the 2014 Act. This section provides the necessary flexibility to ensure that the long-term viability of agricultural land and wetland protection efforts through conservation easements will be achieved in a manner that can accommodate subsequent compelling public needs, or will facilitate the practical administration of the program when no reasonable alternatives are available. This section clarifies the preferred alternative is always avoidance of impacts to the easement area, followed by minimization of impacts to the easement area. Furthermore, NRCS will give preference to addressing impacts of an action to the easement onsite or immediately adjacent to original easement area over addressing such impacts offsite. This consideration of alternative and sequencing is consistent with NRCS responsibilities under the National Environmental Policy Act (NEPA).
Given its stewardship responsibilities, NRCS has limited the scope of the easement that may be affected by an easement action to 10 percent of the easement area. Under very limited circumstances, NRCS may consider easement actions that exceed this 10 percent limitation if NRCS determines that the original easement area has experienced offsite landscape changes such as catastrophic changes to hydrology, complete loss of all agricultural infrastructure and markets, or contamination from hazardous materials from adjacent properties, and NRCS determines that such changes make achieving easement purposes impracticable.
NRCS will make the determination of equal or greater economic value to the United States based upon an approved easement valuation methodology in place at the time of the easement action request. Currently, the easement valuation methodology for ALE easements is outlined under subpart B and outlined for WRE easements under subpart C. In addition to the value of the easement itself, NRCS may consider other financial investments it has made in the acquisition, restoration, and management of the original easement to ensure that the easement administration action results in equal or greater economic value to the United States.
To further ensure that the easement action will result in equal or greater conservation value to the United States, NRCS places a limitation concerning the geographic area from which exchange acres can be obtained. The type of conservation and economic values of exchange properties are more likely to be similar if situated in close proximity to the original easement area, and thus NRCS identifies that replacement of easement acres as part of an easement exchange must occur in the same 8-digit watershed and within the same State.
This section sets forth how NRCS will address enrollment of land where the landowner transfers the rights in land to a third party prior to the purchase of the easement.
This section sets forth that NRCS will make payment to its program participants without regard to any claims that non-Federal creditors may have on the financial assets of the program participant as authorized by 7 CFR part 1403.
This section identifies that a program participant has the ability to assign their right to payment to another person or legal entity in accordance with 7 CFR part 1404.
This section provides that a landowner subject to an ACEP easement may also enter into an environmental credit agreement with third parties provided that the terms of the environment credit agreement do not interfere with the rights acquired by the United States and do not cause the landowner to violate the terms of the agricultural land easement or wetland reserve easement.
This section includes the program requirements for eligible entities who wish to receive cost-share assistance from NRCS for the purchase of an agricultural land easement.
Paragraph (a) identifies that NRCS will facilitate and provide funding for the purchase of easements or other interests in eligible land that is subject to a written pending offer from an eligible entity for the purpose of protecting the agricultural use and related conservation values of the land by limiting nonagricultural uses of the land. Paragraph (a) also identifies the basic parameters of the program, including that eligible entities must submit applications to NRCS State offices, that funding would be provided through a cooperative agreement that specifies NRCS minimum deed terms, and that all easements or other interests in land will be in perpetuity unless provided otherwise by State law.
Paragraph (b) provides that to be eligible to receive ACEP–ALE funding, an Indian Tribe, State, unit of local government, or nongovernmental organization must demonstrate a commitment to long-term conservation of agricultural lands; a capability to acquire, manage, and enforce easements;
Paragraph (c) provides that a landowner who is selling an eligible entity an agricultural land easement is responsible for meeting conservation compliance requirements at 7 CFR part 12, as required by section 1265D(e) of the 1985 Act and the Adjusted Gross Income Limitation provisions at 7 CFR part 1400. Under paragraphs (b) and (c), the regulation clarifies that it is the eligible entity and landowner's responsibility to ensure that the necessary records have been established in the USDA customer records system.
Paragraph (d) sets forth the criteria by which land can be determined eligible. In particular, eligible land includes private or Tribal agricultural land on a farm or ranch subject to a pending written offer by the eligible entity and contains at least 50 percent prime or unique farmland or designated farm and ranch land of State or local importance, unless a lesser percentage is determined appropriate by NRCS based on local conditions; contains historical or archaeological resources; protects grazing uses and related conservation values by restoring and conserving land; or furthers a State or local government policy consistent with the purposes of the program.
Paragraph (d) specifies that the land must be cropland, rangeland, grassland, or land that contains forbs or shrubland for which grazing is the predominant use, located in an area historically dominated by grassland, forbs, or shrubs, and could provide habitat for animal or plant populations of significant ecological value, pastureland, or nonindustrial private forest land that meet specific criteria. Consistent with the prior FRPP regulation and policy that sought to minimize overlap and conflict with other forest easement programs, paragraph (d) clarifies that land cannot include forest land greater than two-thirds of the easement area. NRCS will reduce its cost-share in proportion to the extent that an easement protects forest land that exceeds two-thirds of the easement area. For example, if a 100 acre easement contains 30 acres of cropland and 70 acres of forest land, NRCS would provide cost-share on the 30 acres of cropland and 66.6 acres of forest land, but would not provide any cost-share for the purchase of the remaining 3.4 acres of forest land. However, this paragraph also identifies that NRCS may waive the forest land restriction for sugar bush acreage that contributes significantly to the economic viability of the parcel being offered for enrollment. A sugar bush refers to a forest stand which is utilized by agricultural landowners for the production of maple syrup. The tree canopy is dominated by sugar maple, black maple, or similar tree species, and other tree species, if present, form only a small fraction of the total tree cover. NRCS believes that landowners manage their sugar bush as an integral part of their overall agricultural operations.
Paragraph (e) specifies lands that are ineligible for enrollment. Lands that are owned by a governmental entity, unless in trust for an Indian Tribe, are ineligible. Additionally, certain land owned by nongovernmental organizations whose purpose is to protect agricultural use and related conservation values are ineligible since such lands are already protected from conversion to agricultural use. NRCS will also consider land ineligible if it is subject to (1) onsite or offsite conditions that would interfere with the agricultural viability of the property, including the risk of the presence of hazardous substances or incompatible land uses, or (2) subject to a deed restriction that provides similar protection to that provided by the program.
This section identifies the application procedures that an entity must follow in order to have their application be considered for funding under ACEP–ALE.
Paragraph (a) requires an entity to submit an application to NRCS in the State where parcels are located.
Paragraph (b) identifies that applications may be submitted on a continuous basis or in response to specific program solicitations. However, NRCS may announce application cut-off periods to evaluate applications received by a date certain.
Paragraph (c) provides that NRCS will determine whether an applicant is eligible to participate in ACEP–ALE based on the criteria set forth in § 1468.20(b).
Paragraph (d) provides that at the end of each fiscal year, NRCS will cancel the lists of pending, unfunded eligible parcels unless the eligible entity requests that certain parcels be considered for funding in the following fiscal year.
This section sets forth how parcels will be ranked for funding. NRCS will determine the eligibility of the landowner and land prior to ranking. The NRCS ranking system in each State incorporates national and State-specific criteria to rank, score and prioritize each eligible parcel within the State. All eligible parcels that compete for funding during a given application period are ranked using the same NRCS ranking criteria. The national criteria must comprise at least 50 percent of the total numerical ranking score with the state criteria comprising the remaining 50 percent.
The national ranking criteria include quantitative factors such as the percent of prime, unique, and important soil or grazing uses and related conservation values in the parcel to be protected; the percent of cropland, pastureland, grassland, and rangeland in the parcel to be protected; the ratio of the total acres of land in the parcel to be protected to average farm or ranch size in the county according to the most recent USDA Census of Agriculture; the percent population growth in the county as documented by the United States Census; the threat of conversion to incompatible land uses; the existence of a farm or ranch succession plan; proximity to other protected land; grassland that is currently enrolled in the conservation reserve program in a contract that is set to expire within 1 year that would benefit from protection under a long-term easement; and other similar criteria.
This section also identifies the factors that may be identified by NRCS at the State level. State criteria are determined by the State Conservationist, with advice from the State Technical Committee. This section of the regulation identifies that the State criteria may consider the location of a parcel in an area zoned for agricultural use, the eligible entity's performance in managing and enforcing easements, multifunctional benefits of agricultural land protection, geographic regions where enrollment of particular lands may help achieve program objectives, diversity of natural resources to be protected, score using the land evaluation and site assessment system or equivalent measure for grassland enrollments, or other criteria determined by NRCS that will allow for the selection of parcels that will achieve ACEP–ALE purposes. When developing the State ranking factors, the State Conservationist must use factors that will assess the parcels potential to meet the purpose and goals of ACEP–ALE.
The ranking system incorporating both national and state criteria enables NRCS to prioritize parcels that merit ACEP–ALE enrollment. The ranking process must be followed and parcels funded in order of priority unless
The ranking system may assign negative points or place at the bottom of the ranking list any parcels submitted by an eligible entity which is delinquent on submitting annual monitoring reports on prior-year conservation easements or has open ACEP–ALE cooperative agreements more than 2 years old. State Conservationists may also establish ranking thresholds below which parcels will not be funded.
In summary, NRCS will rank all eligible parcels submitted by eligible entities prior to an announced application cut-off date. NRCS will rank all parcels in accordance with the national and State criteria identified in this section. As required by section 1265B(b)(3)(C) of the 1985 Act, NRCS will not assign a higher priority to any parcel solely based on the lesser cost to the program.
NRCS will list the selected eligible parcels in the cooperative agreement to be entered into between NRCS and the eligible entity.
This section addresses the principal program document under which NRCS and an eligible entity identify how they will coordinate the activities needed for the eligible entity to purchase a conservation easement with ACEP assistance, including their respective rights and responsibilities related to program enrollment under this subpart. In particular, NRCS, on behalf of the CCC, enters into a cooperative agreement with entities selected for funding. Once NRCS selects an application, the eligible entity works with NRCS to finalize and sign a standard program cooperative agreement, incorporating all necessary ACEP–ALE requirements including the requirement that each easement must have an agricultural land easement plan.
This section addresses the extent to which NRCS will provide financial assistance to an eligible entity for the purchase of an agricultural land easement by the eligible entity. NRCS may provide up to 50 percent of the approved fair market value of the agricultural land easement. NRCS will approve the use of the Uniform Standards for Professional Appraisal Practice (USPAP), the Uniform Appraisal Standards for Federal Land Acquisition (UASFLA), or Areawide Market Analysis procedures by the eligible entity for determining “fair market value of the agricultural land easement.” An eligible entity is responsible to obtain a fair market value determination of the easement using one of the approved methods in accordance with NRCS specifications and applicable industry standards. The eligible entities provide the easement valuation determination documentation to NRCS. The Uniform Standards of Professional Appraisal Practices may serve as an industry standard for areawide market analysis. NRCS welcomes comments on what other types of “industry methods” should be considered when determining “fair market value of the agricultural land easement” for Federal match requirements for agricultural land easements.
A landowner may make donations toward the acquisition of the agricultural land easement. However, the 2014 Act requires that the eligible entity provide a share that is at least equivalent to that provided by NRCS. While the eligible entity may include as part of its share a landowner's qualified donation, the statute identifies that the eligible entity must contribute its own cash resources in an amount that is at least 50 percent of the amount contributed by NRCS. To ensure that the Federal share meets these parameters, NRCS requires that prior to execution of the easement deed and payment of compensation to the landowner, the eligible entity provide the necessary acceptable valuation documentation and NRCS approve the determination of fair market value.
This section also outlines circumstances where NRCS may waive certain cost-share limitations for grassland of special environmental significance or other projects of special significance. For grasslands of special environmental significance, NRCS may provide up to 75 percent of the fair market value of the agricultural land easement and the eligible entity is required to provide the remainder as the entity share, of which the eligible entity is still required to provide its own cash resources as at least half of the entity share unless an additional entity cash contribution waiver is requested and granted.
For projects of special significance, NRCS may waive the eligible entity cash contribution requirement in accordance with the criteria and circumstances outlined in this section. However, for these projects of special significance, the landowner donation must increase commensurate to the amount of the waiver, the landowner donation must be voluntary, and the property must be in active agricultural production. This section identifies the criteria by which a project may be determined to be one of special significance, including that the land is subject to threat of conversion or fragmentation and is in proximity to other protected areas supporting agricultural, grassland, or other compatible uses.
Additional factors considered are whether the project is listed on the National Register of Historic Places, if the location is within a micropolitan statistical area and 50 percent of the adjacent land is agricultural land, if the location is within a metropolitan statistical area, if the project will increase participation in agriculture by underserved communities, veterans, or beginning or disabled farmers and ranchers, and whether the farm or ranch is used as an education or demonstration farm focused on agricultural production and natural resource conservation, and other similar factors. NRCS welcomes input on the criteria that have been developed and any additional criteria that may be used to determine projects of special significance.
NRCS will provide ACEP–ALE cost-share funds toward the cost of the agricultural land easement itself. Since section 1265B of the 1985 Act does not authorize any cost-share beyond contribution towards the purchase of an ACEP–ALE easement based on the approved fair market value of the agricultural land easement, NRCS does not provide funds for related administrative costs such as appraisals, surveys, title insurance, legal fees, costs of easement monitoring, and other related administrative and transaction costs incurred by the eligible entity.
Section 1265B(b)(4)(C) of the 1985 Act anticipates that an eligible entity is able to use its own deed terms provided that NRCS is able to determine that such terms “are consistent with the purposes of the program [and] permit effective enforcement of the conservation purposes of such easements.” Therefore, in order for NRCS to provide cost-share assistance to an eligible entity, NRCS must ensure that the eligible entity will include in its agricultural land easement deeds the terms and conditions necessary to ensure ACEP statutory purposes and requirements are met.
NRCS may determine that an agricultural land easement deed meets program purposes by either the eligible entity drafting all of the deed terms and conditions for an individual easement
Under FRPP, NRCS reviewed each individual deed review due to the variability of easement deed terms. The result of this highly individualized approach provided maximum flexibility for the eligible entity but also resulted in extended acquisition timelines, inconsistent deed terms, variability in deed enforceability, and risk of inequitable treatment of eligible entity applicants.
Under ACEP, NRCS will provide a standard set of minimum deed terms that could be wholly incorporated along with the eligible entity's own deed terms into the agricultural land easement deed. NRCS and the eligible entity would agree to the standard minimum deed terms through the cooperative agreement, and the eligible entity would include these standard minimum deed terms into the agricultural land easement deed directly or as deed addendum attached and incorporated by reference into the deed.
If the eligible entity agrees to and incorporates these minimum standard deed terms, NRCS may choose not to review individual deeds prior to closing. NRCS goals with this approach are to streamline program delivery, increase the transparency of program requirements, ensure the equitable treatment of all participants, and reduce inconsistency in the long-term management and enforcement of the easements. This approach still allows the eligible entity to introduce its own deed terms, including those that are more restrictive. Through the publication of this interim rule, NRCS is seeking and welcomes specific public comment on the content of these standard minimum deed terms. The current minimum deed terms can be found at [enter URL for such terms].
Due to high program demand, limited funds, and anticipated cost-savings from streamlining program delivery, in fiscal year 2015, NRCS will prioritize those applications with entities who agree to use the standard minimum deed terms found at
Among the minimum requirements that must be in each ALE funded easement, whether or not an eligibility entity elects to use the minimum standard set of deed terms, is a right of enforcement for the Secretary of Agriculture required by Section 1265B(b)(4)(C)(iii) of the 1985 Act. The United States right of enforcement may only be used if the terms of the Agricultural Land Easement are not enforced by the holder of the easement. The right of enforcement includes the right of inspection so that NRCS can ensure that the eligible entity is meeting its enforcement, monitoring and stewardship responsibilities. As described above, the eligible entity must annually monitor compliance and provide NRCS an annual monitoring report that documents that the eligible entity and landowner have complied with the Agricultural Land Easement and Agricultural Land Easement Plan. Therefore, pursuant to its right of enforcement, if the annual monitoring report is insufficient or is not provided annually, or if NRCS has evidence of an unaddressed violation, as determined by NRCS, NRCS may exercise this right of inspection and enter the easement area with advance notice to the eligible entity and the landowner or landowner's representative. In the event of an emergency, NRCS may enter the easement area to prevent, terminate, or mitigate a potential or unaddressed violation of the easement's restrictions and will provide notice to both the eligible entity and the landowner at the earliest practicable time.
Consistent with former FRPP requirements and standard conservation easement practice, each ALE funded easement must also include an indemnification clause requiring the landowner to indemnify and hold harmless the United States from liability arising from or related to the property enrolled in ACEP–ALE. Each eligible entity is also responsible for the development of baseline documentation that is attached to the easement deed, or if allowed by State law cross reference in the deed. Baseline documentation is submitted to NRCS with the other easement deed documents.
Consistent with policy that had been developed under FRPP, NRCS has established that impervious surfaces will not exceed 2 percent of the ACEP–ALE easement area, excluding NRCS-approved conservation practices. However, NRCS may waive the 2 percent impervious surface limitation on a parcel-by-parcel basis, provided that no more than 10 percent of the easement area is covered by impervious surface.
The inclusion of these minimum provisions in ALE-funded easements is a requirement for participation in the ACEP–ALE and cannot be waived. All agricultural land easement deeds acquired with ACEP–ALE funds must be recorded in the appropriate land records for the county or parish.
This section sets forth the requirement of section 1265B(b)(4)(C)(iv) of the 1985 Act that all agricultural land easements must be subject to an agricultural land easement plan approved by NRCS and the landowner. This section identifies the minimum requirements for an agricultural land easement plan and describes the relationship between the agricultural land easement plan and the individual component plans that are required for certain land-use types and incorporated by reference into the overarching agricultural land easement plan. The eligible entity is responsible to ensure an agricultural land easement plan that has been approved by NRCS and signed by the landowner is in place prior to the execution of the easement deed and the payment of compensation to the landowner.
As identified in Section 1265B(d), NRCS may provide technical assistance, if requested, to assist in the development of an agricultural land easement plan. Therefore, the cooperative agreement can address the availability of NRCS technical assistance to develop these plans. No separate approval of the plan by NRCS is needed if NRCS, a certified technical service provider, or other NRCS certified conservation planner develops the agricultural land easement plan. The development of a robust and comprehensive agricultural land easement plan, such as a plan at the NRCS Resource Management System planning level, is encouraged and as such, may include both required and recommended practices. NRCS recommends that NRCS' planning procedures, conservation practices, and standards and specifications be used to develop the agricultural land easement plans. Certain component plans, such as the forest land management plan may use other industry-approved planning methods and standards such as forest stewardship plans.
The eligible entity is responsible for enforcement of the easement, including ensuring the landowner is implementing or adhering to the required elements of the agricultural land easement plan. The NRCS right of enforcement includes a right of inspection that authorizes NRCS to ensure the landowner and easement holder are in compliance with the
Section 1265B of the Food Security Act of 1985, as amended, requires NRCS to establish a process under which eligible entities that meet established criteria may be certified and enter into long-term agreements for ACEP–ALE cost-share assistance. In summary, Section 1468.27 implements this statutory provisions and provides that, at an entity's request, the Chief will determine whether an eligible entity meets certifications requirements and if so, certify the entity.
The ACEP–ALE statutory provisions specify that an eligible entity, to be certified, must demonstrate to NRCS that the eligible entity will maintain, at a minimum, for the duration of the agreement:
(i) A plan for administering easements that is consistent with the purposes of ACEP–ALE;
(ii) The capacity and resources to monitor and enforce the agricultural land easements; and
(iii) Policies and procedures to ensure—
a. the long-term integrity of the easements,
b. timely completion of acquisition of such easements, and
c. timely and complete evaluation and reporting to NRCS on the use of ACEP–ALE cost-share assistance provided.
These same certification provisions existed under the ACEP–ALE predecessor program, the Farm and Ranch Lands Protection Program (FRPP). However NRCS is introducing a few key changes in the ACEP–ALE regulation and policy to streamline and improve the certification process that was initially developed under FRPP and expand the availability of certification to eligible entities.
NRCS has developed a set of objective, measurable criteria that can be used to evaluate the eligible entity's ability to meet the statutory certification criteria. The certification criteria outlined in this interim rule are similar to the criteria under FRPP with a key change to the criteria that proved most problematic under FRPP. The statutory requirement that the entity have a plan to administer easements that is consistent with the purposes of ACEP–ALE will be demonstrated by the eligible entity agreeing in their request for certification to use the template ACEP–ALE Agreement for Certified Entities if they are certified.
This change is in effort to address the issues that arose related to entities being unable or unwilling to adjust their policy and procedures to meet the programmatic FRPP requirements under the FRPP certification process. This change will also expedite the review of entity certification requests and ensure the equitable treatment of all certified entities by establishing a simple, transparent, objective criteria for determining whether the entity is addressing the statutory requirement.
Another change is that an eligible entity may submit a request for certification with associated documentation to the NRCS State Conservationist at any time rather than during specific sign-up periods. The State Conservationist will review the materials and make a recommendation to the National Office for final determination. NRCS will notify an entity in writing whether they have been certified and the rationale for the agency's decision.
This section also identifies the type of administrative flexibility available to a certified entity based upon their certification. For example, NRCS will rely on the certified entity to independently complete the easement acquisition in accordance with the terms and conditions of the cooperative agreement and consistent with the requirements of this part. NRCS will conduct annual quality assurance reviews on a subset of the transactions after closing and payment rather than prior to closing. Since NRCS review of these transactions is minimized prior to closing, a certified entity is better able to schedule easement closings and meet timelines associated with other funding sources. These benefits associated with certification will allow a certified entity greater autonomy in its acquisition of ALE-funded easements and potentially expedite the time it takes for a certified entity to complete its easement acquisitions.
This section sets forth the eligible entity's responsibilities to enforce the easement terms and conditions. Additionally, this section sets forth the circumstances under which NRCS may exercise its right of enforcement.
NRCS will work with the eligible entity to assist it in its responsibility to enforce the easement terms. If, however, the eligible entity is unable or unwilling to enforce the easement terms and NRCS determines the eligible entity has not met its enforcement responsibilities, NRCS may exercise the United States' rights identified under an agricultural land easement or other interest in land to protect the agricultural values. If such action becomes necessary, NRCS will provide written notice by certified mail, return receipt requested, to the eligible entity at the eligible entity's last known address. Unless emergency circumstances require more immediate NRCS action to prevent imminent harm, the notice will provide the eligible entity an opportunity to cure its failure to enforce the terms of the deed within a reasonable timeframe. If NRCS is required to exercise its right of enforcement, NRCS may recover any and all administrative and legal costs from the eligible entity, the current holder of the easement if applicable, and the landowner or other party responsible for the easement violation.
This section sets forth the basic requirements for participation in ACEP through a wetland reserve easement, including landowner and land eligibility requirements.
Paragraph (a) identifies that under the ACEP–WRE, NRCS may purchase wetland reserve easements from eligible landowners who voluntarily agree to the restoration, protection, and enhancement of wetlands on eligible private and Tribal lands. Additionally, the 30-year contract enrollment option is available to enroll acreage owned by Indian Tribes and these 30-year contracts are implemented similarly to 30-year easements. In order to participate through any of the WRE enrollment options, the landowner must agree to the implementation of a WRPO, the effect of which is to restore, protect, enhance, maintain, and manage the hydrologic conditions of inundation or saturation of the soil, native vegetation, and natural topography of eligible lands.
Paragraph (b) sets forth the county cropland enrollment limitations that are established by section 1244 of the 1985 Act as amended by the 2014 Act. In particular, no more than 25 percent of the total cropland in any county may be enrolled in CRP and ACEP–WRE, and no more than 10 percent of the total cropland in the county, as determined by FSA, may be subject to an easement under ACEP–WRE. The cropland limits do not apply to shelterbelts,
Paragraph (c) identifies that an applicant must be the landowner of eligible land for which enrollment is sought, and must have owned that land for at least 24 months prior to the time the land is determined eligible for enrollment unless certain exemptions apply, including that it is determined by the Chief, upon application by the landowner, that such land was acquired under circumstances that give adequate assurances that the land was not acquired for the purposes of placing it in the program. NRCS has also included the requirement that the landowner must provide all necessary documents that are required by the Farm Service Agency to establish customer records in the USDA customer records system. Recipients of USDA benefits, including NRCS customers, work with the Farm Service Agency to establish the requisite eligibility records in the USDA customer service data base. NRCS checks these records to ensure that the landowner meets conservation compliance and adjusted gross income limitation requirements.
Paragraph (d) sets forth how NRCS will handle enrollment situations where, prior to easement purchase, the landowner transfers the land offered for enrollment.
Paragraph (e) sets forth the land eligibility criteria that were specified by sections 1265(3) of the 1985 Act as added by the 2014 Act. Among the categories of eligible land are: Farmed wetland or converted wetland, together with adjacent lands that are functionally dependent on the wetlands; cropland or grassland that was used for agricultural production prior to flooding from the natural overflow of a closed basin lake or pothole, together with the adjacent land, where practicable, that is functionally dependent on the cropland or grassland; farmed wetland and adjoining lands enrolled in CRP, with the highest wetland functions and values, and is likely to return to production after it leaves CRP; or a riparian area along a stream or other waterway that links or, after restoring the riparian area, will link wetlands protected by the ACEP–WRE easement, another easement, or other device or circumstance that achieves the same objectives as an easement. Determination of land eligibility is made at the time of application evaluation.
NRCS may also enroll adjacent or contiguous land if such land maximizes wildlife benefits and contributes significantly to wetland functions and values. Such adjacent or contiguous land may include buffer areas, created wetlands, noncropped natural wetlands, riparian areas that do not otherwise meet riparian eligibility requirements, and restored wetlands.
Land enrolled in the program must have sufficient legal access, be configured in a size and with boundaries that allow for the efficient management of the area for program purposes, and otherwise promote and enhance program objectives, as determined by NRCS.
Paragraph (f) addresses the enrollment of CRP lands.
Paragraph (g) identifies land that is not eligible for enrollment, including converted wetlands if the conversion was commenced after December 23, 1985; land established to trees under CRP except in cases where NRCS determines it would further the purposes of the program; lands owned by a Federal or non-Federal governmental agency; land that does not have sufficient legal access, clear title, or meet Department of Justice Title Standards; land subject to an easement or deed restriction which, as determined by NRCS, provides similar restoration and protection of wetland functions and values as would be provided by enrollment in ACEP–WRE; and lands where purposes of program or implementation of restoration practices would be undermined due to onsite or offsite conditions. Such conditions may include risk of contamination from hazardous substances either onsite or offsite, proposed or existing rights of way, either onsite or offsite, for infrastructure development, or adjacent land uses that would either impede complete restoration or prevent wetland functions and values from being fully restored.
With respect to the ineligibility of land established to trees under CRP, the 2014 Act authorized a waiver where NRCS determines the enrollment of such land will further the purposes of the program. Such circumstances may exist where established cover conforms to ACEP–WRE requirements if the CRP trees are on incidental land adjacent to eligible wetland; enrollment would improve the practical administration of the easement boundary; the land contains habitat for at-risk species or migratory birds; conversion to higher intensity of production is likely; or other criteria as determined appropriate by the Chief.
This section sets forth the application procedures for a landowner that wants to participate in the ACEP–WRE. Specifically, a landowner may obtain and submit to NRCS an application to participate in the program at any time to the local USDA Service Center. By filing an application, the landowner consents to an NRCS representative entering upon the land for purposes needed to evaluate the application. The landowner is entitled to accompany an NRCS representative on any site visits.
This section sets forth the factors NRCS will use to select properties for enrollment in an ACEP–WRE. Among the priority factors, NRCS may consider the conservation benefits of obtaining an easement, the cost-effectiveness of each easement, whether Federal funds are being leveraged, and the extent to which ACEP–WRE purposes would be achieved on the land.
Given the statutory priority placed on acquiring easements based on the value of the easement for protecting and enhancing habitat for migratory birds and other wildlife and maximizing the benefit of the Federal investment, NRCS will also give priority consideration to obtaining permanent easements over shorter term easements. NRCS may work with both the FWS and the State Technical Committee on priority factors to ensure that ACEP and related Federal consultation requirements are met.
As provided by section 1265D(b) of the 1985 Act, NRCS may provide priority enrollment to land that is currently enrolled in CRP in a contract that is set to expire within one year from date of application to ACEP–WRE and is a wetland or related area with high wetland functions and values; is likely to return to production after the land leaves CRP; and has not been established to trees under CRP unless that limitation has been waived by NRCS.
This section sets forth how applications will be ranked for funding. The NRCS ranking system in each State incorporates criteria to rank, score and prioritize each eligible parcel within the State. NRCS determines priority for ACEP–WRE enrollment through an onsite field reviews conducted by NRCS and an appropriate interdisciplinary team of partner specialists, which may include FWS. The landowner is invited to participate in these field reviews.
The ranking criteria include quantitative factors that assess the sites physical capacity to be restored and the extent and diversity of anticipated benefits of such restoration. Hydrology restoration potential comprises at least 50 percent of the potential points awarded for environmental benefit considerations. NRCS obtains specific
This section sets forth the process that NRCS will use for handling applications once they have been selected for enrollment. NRCS notifies a landowner of their tentative acceptance into the program. This notice does not bind NRCS or the landowner, but allows the parties to continue the enrollment process.
Once NRCS has completed its preliminary enrollment activities, the landowner will be presented with an agreement to purchase. The agreement to purchase describes the easement area, the easement compensation amount, the easement terms and conditions, and other terms and conditions for participation that NRCS may require. Easement compensation is based upon the criteria identified in § 1468.34, including the determination of fair market value of the land. This same methodology was used under the predecessor program, the Wetlands Reserve Program. USPAP establishes the criteria for appraisals and areawide market analysis which are each supplemented by NRCS Specifications and Statement of Work requirements for each methodology. NRCS has also developed policy parameters for area wide market analyses and geographic area rate caps to ensure that compensation amounts are appropriately constrained. Individual appraisals cannot be used on land that has been valued through an areawide market analysis.
Fair market value is determined, therefore, through either the use of a USPAP appraisal or an areawide market analysis or survey. For any particular easement offer, NRCS will only use one method for determining fair market value, and a landowner does not have input into which method NRCS will use. Once fair market value is determined, the value is compared to the geographic area rate cap and the landowner offer made prior to enrollment, if any. The least of these values is the value used to determine the easement compensation amount.
The landowner accepts enrollment in the ACEP–WRE by signing the agreement to purchase. A similar process is followed for enrolling land held by Indian Tribes through a 30-year contract.
The agreement to purchase establishes the scope of the agreement between the parties, including the landowners' agreement to grant to the United States a wetland reserve easement and to the implementation of a WRPO.
This section sets forth how NRCS will determine the level of compensation that a landowner will receive in return for granting a wetland reserve easement. Easement compensation methodologies are determine by statute at section 1265C(b)(6) of the 1985 Act. In particular, the landowner will receive the least of: (1) The fair market value of the land; (2) a geographic rate cap; or (3) the landowner offer. This section also describes how each of these values are determined. This valuation determination uses the same methods of valuation determination that had previously been used in the WRP.
This section sets forth how NRCS will implement a wetland reserve enhancement option with partners under ACEP–WRE. In particular, the purpose of WREP is to target and leverage resources to address high priority wetlands protection, restoration, and enhancement objectives through agreements with States (including political subdivision or agency of a State, nongovernmental organizations, and Indian tribes. The Chief will establish priorities for funding, required level of partner contribution of resources, ranking criteria, and other criteria. NRCS will make public notifications of the availability of funding and instruct interested partners about the manner in which they should submit their proposal. Partners with a selected proposal will enter into WREP agreements with NRCS to carry out the project. Under WREP, individual easements are purchased directly from the landowner and held by the United States.
This section identifies that NRCS will provide funds towards implementing the WRPO on land enrolled through a wetland reserve easement or 30-year contract. NRCS will offer to pay at least 75 percent but not more than 100 percent of the cost of implementing the WRPO on land subject to a permanent easement. NRCS will offer to pay at least 50 percent but not more than 75 percent of such costs on enrolled land subject to a 30-year easement or maximum duration allowed by state law or 30-year contract.
This section identifies that to enroll land in ACEP–WRE through the permanent or 30-year easement option, a landowner must grant an easement to the United States. Consistent with ACEP–WRE requirements and as previously required under WRP, the landowner grants the wetland reserve easement to the United States through a reserved interest deed, including the right of access to the easement area, the right to permit compatible uses of the easement area, and the right to restore, protect, enhance, maintain, and manage activities on the easement area. Similar provisions are contained in a 30-year contract that is entered into with an Indian Tribe.
This section also identifies that a landowner may be able to reserve grazing rights under a wetland reserve easement or 30-year contract if the reservation and use of the grazing rights is consistent with the historical natural uses of the land and long-term wetland protection and enhancement goals for which the easement or 30-year contract was established. Compensation for easements or 30-year contracts where the grazing rights are reserved will be reduced by an amount equal to the value of the reserved grazing rights, as determined by the Chief.
This section identifies that the development of the WRPO is through the local NRCS representative, in consultation with the State Technical Committee, with consideration of available site-specific technical input from the FWS and others as appropriate. NRCS specifies in the WRPO the manner in which land enrolled through a wetland reserve easement or 30-year contract will be restored, protected, enhanced, maintained, and managed to accomplish ACEP–WRE goals. NRCS will review, revise, and supplement the WRPO, as needed, throughout the
This section identifies how NRCS will address violations of a wetland reserve easement or 30-year contract. In the event of a violation of a wetland reserve easement or 30-year contract involving the landowner, NRCS will give the landowner reasonable written notice and an opportunity to voluntarily correct the violation within 30 days of the date of the notice. However, NRCS reserves the right to enter upon the easement area at any time to remedy deficiencies or easement violations. Such entry may be made at the discretion of NRCS when such actions are deemed necessary to protect wetland functions and values or other rights of the United States under the easement. The landowner will be liable for any costs incurred by the United States as a result of the landowner's negligence or failure to comply with easement or contractual obligations.
Section XII of the Food Security Act of 1985, as amended by the Agricultural Act of 2014 (2014 Act), requires the Natural Resources Conservation Service (NRCS) to establish the Agricultural Conservation Easement Program (ACEP) in a new Subtitle H. This Subtitle repeals the previously authorized programs, Wetlands Reserve Program (WRP), Farm and Ranchlands Protection Program (FRPP) and Grassland Reserve Program (GRP), but maintains the purposes of these programs in ACEP. Pursuant to Executive Order 12866, Regulatory Planning and Review, NRCS has conducted a Regulatory Impact Analysis and Initial Regulatory Flexibility Analysis (RIA) of ACEP using historical data and information, including information from WRP, FRPP, and GRP. This RIA describes both the potential impact of the regulation on benefits and costs and the regulatory flexibility in the rule implementation. Implementation of this rule is required to complete the Congressional Action.
In considering alternatives for implementing ACEP, the agency followed the legislative intent to establish an open participatory process, optimize environmental/conservation benefits, and address natural resource concerns. Because ACEP is a voluntary program, the program will not impose any obligation or burden upon agricultural landowners who choose not to participate.
The 2014 Act requires establishment of ACEP to retain the provisions in the current easement programs by establishing two types of easements: Wetlands reserve easements (WRE) that protect and restore wetlands as previously available under WRP, and agricultural land easements (ALE) that limit nonagricultural uses on productive farm or grassland as previously available under FRPP and the easement component of GRP. The WRE component will provide technical and financial assistance to landowners to restore and protect wetlands and associated habitats through conservation easements. ACEP–WRE will address wetlands, wildlife habitat, soil, water, and related natural resource concerns on private lands. The ALE component will protect the natural resources and agricultural value of agricultural cropland, pasture and other working land, promote agricultural viability for future generations, preserve open space, provide scenic amenities, and protect grazing uses and related conservation values by restoring and conserving eligible land and limiting nonagricultural uses.
The 2014 Act also identified ACEP as a covered program for implementation of the Regional Conservation Partnership Program (RCPP), authorized by Subtitle I of Title XII of the Food Security Act of 1985, as amended (16 U.S.C. 3871
Most of this rule's impacts consist of transfer payments from the Federal Government to farmers, landowners, and producers. Although these transfers create incentives that very likely cause changes in the way society uses its resources, we lack data with which to quantify the resulting social costs or benefits. Under the 2014 Act, ALE and WRE enrollments are limited by funding. As set forth in the 2014 Act, total proposed ACEP funding and associated transfer payments by fiscal year is presented in Table ES–1.
Land enrolled in ACEP–WRE easements will produce onsite and offsite environmental impacts. Those include: Restoration and protection of high value wetlands; control of sheet and rill erosion as lands are restored from cropland to wetlands and associated habitats; restoration, enhancement, and protection of habitat for fish and wildlife, including threatened and endangered species and migratory birds; improving water quality by filtering sediments and chemicals; reducing flooding and flood-related damage; recharging groundwater; protecting biological diversity; controlling invasive species with planting of native vegetation; as well as providing opportunities for
For land enrolled in ACEP–ALE, the suite of conservation effects on protected grasslands are different than those on protected farmland. ACEP–ALE easements on grasslands limit agricultural activities to predominately grazing and haying, whereas easements on farmland allow crop cultivation and pasture-based agriculture. As such, farmland protection effects are derived from onsite and ecological services, as well as preserving highly productive agricultural areas from development or fragmentation. Impacts on grasslands are derived from onsite and ecological impacts as well as preventing conversion to nongrassland uses. The net conservation effects through time from farmland protection include direct access benefits (pick-your-own, agri-tourism, and nature based activities like hunting) indirect access benefits (open spaces and scenic views) and nonuse benefits (wildlife habitat and existence values). Grassland protection conservation effects include the direct, indirect, and nonuse benefits, but also include on-farm production gains and carbon sequestration.
The main program costs are the purchase of easements and associated restoration expenses under the ACEP–WRE component. Agricultural production ceases on lands enrolled in ACEP–WRE. At the same time, disaster payments, crop loss payments, and other commodity payments are eliminated.
Through ACEP–ALE, landowners voluntarily restrict the land to agricultural uses by the sale of conservation easements to eligible entities. Local cooperating entities are key drivers in farmland
The public and private costs of ACEP–ALE are: (1) The actual cost of purchasing the easement; (2) a reduced tax base which includes the opportunity cost of lower local economic activity, which for this analysis we assume is offset by a reduction in needed public infrastructure and associated taxes to support that infrastructure; and (3) the forgone economic activity fostered by new development. These costs are not social costs and we do not estimate them in this analysis.
NRCS allocates ACEP funding based upon State-generated assessments of priority natural resource needs and associated work necessary to address identified resource concerns. These State-developed assessments, following national guidance to assure accuracy and consistency, are submitted to agency leadership for review. At the national level NRCS analyzes in a systematic manner these state-reported resource needs and requests along with factors including NRCS landscape initiatives or other nationally established conservation priorities; regional factors such as development pressure, migratory bird flyways, multi-state watersheds with water quality resource concerns; existing State capacity, workload, and performance; and other factors. This approach provides flexibility to address nationally and locally important natural resource concerns. Once funds are allocated to the States, individual project selection occurs at the State level based on the prioritization of the eligible applications using the NRCS ranking criteria.
Over the course of the 2008 Farm Bill, the three easement programs (WRP, GRP, and FRPP) received an average of $691 million annually, which was comprised of $513 million WRP, $138 million in FRPP, and $39 million in GRP. All three easement programs were combined under ACEP and the purposes of FRPP and GRP were combined under the ACEP–ALE component. The average annual funding available under the new ACEP program will be approximately $368 million annually, about 53 percent of the amount previously available under the repealed programs.
Executive Summary Table ES–2 provides an overview of the potential benefits from both sub-program areas of ACEP. For the private landowner, the end products of the ACEP–WRE include assurances of the restoration of the property and associated recreational use, the potential to engage in compatible uses on the property, and the elimination of negative impacts to agricultural operations on the property. Outcomes from the private landowner view of the ACEP–ALE include the long-term protection of the agricultural nature of the land and potential increases in productivity (from implementing the ALE plan) and sustainability of the local agricultural market (from local production). In addition, the private landowner, along with the general public, will reap the benefits of recreational waterfowl harvest, upland species harvest, and agri-tourism. Also in many cases easement that protect farmsteads under ACEP–ALE will provide the general public with an opportunity to engage with and obtain food products from a local farm producer.
Both ACEP–WRE and ACEP–ALE may provide benefits that are achieved for society as a whole, within the limitations of a voluntary program. These include: Improved water quality and water quantity; carbon sequestration; restoration of habitat for endangered or threatened wildlife species; flood prevention and protection; and improvements to scenic quality and rural characteristics. We note that agricultural lands and wetlands sequester carbon at higher rates than lands converted to development.
Participation in ACEP is voluntary and landowners participate in the program for many reasons, such as estate planning, income diversity, expanded recreational opportunity, improving agricultural efficiency, and their personal natural resource ethic. Landowners may also participate in part to meet requirements they face in managing their operation. For example, a landowner may decide to enroll acres in ACEP in order to protect highly productive grasslands from conversion to crop production and thus limit soil and chemical runoff into a nearby stream. Such actions may help demonstrate compliance with other State or Federal requirements, such as State plans to meet Federal TMDL requirements. ACEP may help landowners meet any compliance responsibilities that they may have under the Endangered Species Act. Also, ACEP–WRE implementation provides new habitat through the restoration of degraded wetlands that benefits wildlife. Even in the absence of a FWS critical habitat listing, as is
NRCS has a long-term responsibility to ensure ACEP program objectives are achieved and statutory requirements are met on these lands. Monitoring policy for these lands is in place to guide NRCS in meeting these responsibilities and to maintain working relationships with landowners. In addition, the Statement of Federal Financial Accounting Standards 29 (SFFAS 29) considers easements held by the United States as Stewardship Lands which must be accounted for as part of the agency's annual financial accountability reporting. The SFFAS 29 requires that the “Condition” of all Stewardship Lands be reported regularly. Therefore, NRCS incorporates this additional financial accounting responsibility to report on the condition of Stewardship Lands into its monitoring requirements by assessing compliance with the terms of the easement and whether the easement is meeting program objectives. NRCS added functionality to its easement database to aid its State Offices in tracking monitoring events and observations.
NRCS requires an annual monitoring review of all ACEP easements to ensure compliance with easement terms and that program purposes are being met. For ACEP–ALE easements, NRCS requires the eligible entity to submit annual monitoring reports to NRCS for all ALE easements it holds, while NRCS conducts the annual monitoring of all ACEP–WRE easements.
Data, however, currently do not exist that would allow for parsing, or attributing, different potential benefits to the suite of motivations that might result in a producer participating in this program. What can be said, is that those actions benefit the public as a whole and the ACEP easement payment compensates the landowner for the rights they are encumbering as a result of participating in ACEP. In addition, those transfer payments from the Federal Government to farmers, landowners, and producers may also create incentives that cause changes in the way society uses its resources. As mentioned, we lack data with which to estimate and attribute the overall social costs or benefits.
NRCS is committed to the continual improvement of its collection and analysis of administrative and programmatic data to ensure that program benefits are being achieved through adoptions and implementation of targeted resource-based policies and procedures. Given the existing limitation and lack of data, NRCS will investigate ways to quantify the incremental benefits obtained from this program.
NRCS seeks general comments related to how to make the provisions easier to understand. In addition, NRCS seeks public comment related to the ACEP regulation adopted by this interim rule, including seeking comment on the following topics:
• Access—Under ALE, NRCS has modified the requirements for what constitutes sufficient access to the easement to be less stringent than what is required by the Department of Justice title standards for WRE easements. Should NRCS adopt this greater flexibility for eligible entities on what constitutes sufficient access for ALE easements and what specific conditions should be considered sufficient access under ALE to ensure the federal investment is protected?
• New terms—NRCS defined several new terms to implement new statutory authorities. What improvements to the definitions and implementation of the associated provisions should NRCS incorporate? The new terms include
• Project Selection Criteria and Weightings—What additional criteria should NRCS adopt in its allocation of funds and selection of ACEP projects, what weighting should NRCS provide to existing or new criteria, should this weighting of particular ranking factors occur at the National or State level, and what other changes would assist NRCS in selecting projects that best further ACEP purposes.
• ALE Valuation methods—What other types of “industry methods” should NRCS allow for determining
• Projects of Special Significance—Did NRCS select appropriate criteria for determining projects of special significance and what other criteria should NRCS consider?
• Standard Minimum Easement Deed Terms—NRCS has developed a standard set of minimum deed terms that implement the minimum requirements that must be addressed by provisions in every ALE deed. What improvements can NRCS make to these standard deed terms?
Agricultural operations, conservation practices, conservation payments, conservation easements, farmland protection, grasslands, natural resources, soil conservation, wetlands, wildlife.
For the reasons stated in the preamble, the Natural Resources Conservation Service revises part 1468 of Title 7 of the CFR to read as follows:
15 U.S.C. 714b and 714c; 16 U.S.C. 3865–3865d.
(a) The regulations in this part set forth requirements, policies, and procedures for implementation of the Agricultural Conservation Easement Program (ACEP) administered by the Natural Resources Conservation Service (NRCS).
(b) The NRCS Chief may implement ACEP in any of the 50 States, the District of Columbia, Commonwealth of Puerto Rico, Guam, the Virgin Islands of the United States, American Samoa, and the Commonwealth of the Northern Mariana Islands.
(c) Subpart B of this part sets forth additional requirements, policies, and procedures for implementation of the Agricultural Land Easements (ALE) component of ACEP.
(d) Subpart C of this part sets forth additional requirements, policies, and procedures for the Wetland Reserve Easement (WRE) component of ACEP.
(e) Easement lands previously enrolled under the Farm and Ranch Lands Protection Program (7 CFR part 1491), the Grassland Reserve Program (7 CFR part 1415), and the Wetlands Reserve Program (7 CFR part 1467) are considered enrolled in ACEP. Existing easements and agreements remain valid and enforceable, and subject to the legal framework in place at the time of enrollment, except that the long-term stewardship and management of these easements, and any ACEP funding made available for implementation, will be in accordance with this part.
(a) The regulations in this part will be administered under the general supervision and direction of the NRCS Chief.
(b) NRCS may seek advice from the State Technical Committee on the identification of lands of statewide importance, development of a priority ranking process, and related technical matters.
(c) NRCS may delegate at any time its wetlands reserve easement management responsibilities to other Federal or State agencies or conservation organizations that have appropriate authority, expertise and technical and financial resources, as determined by NRCS, to carry out such delegated responsibilities.
(d) NRCS may delegate at any time its wetlands reserve easement monitoring and enforcement responsibilities to other Federal or State agencies that have the appropriate authority, expertise, and technical and financial resources, as determined by NRCS, to carry out such delegated responsibilities.
(e) NRCS may consult Federal or State agencies, conservation districts, or other organizations in program administration. No determination by these agencies or organizations will compel NRCS to take any action which NRCS determines does not serve the purposes of the program established by this part.
(f) The Chief may allocate funds for purposes related to: encouraging enrollment by beginning farmers or ranchers, socially disadvantaged farmers or ranchers, limited resource farmers or ranchers, Indian tribes, and veteran farmers or ranchers as authorized by 16 U.S.C. 3844; special pilot programs for easement management and monitoring; cooperative agreements with other agencies and organizations to assist with program implementation; coordination of easement enrollment across State boundaries; coordination of the development of easement plans; or for other goals of the ACEP found in this part.
(g) No delegation in the administration of this part to lower organizational levels will preclude the Chief from making any determinations under this part, re-delegating to other organizational levels, or from reversing or modifying any determination made under this part.
(h) The Chief may modify or waive nonstatutory, discretionary provisions of this part if the Chief determines the waiver of such discretionary provision is necessary to further the purposes of ACEP under the Regional Conservation Partnership Program (RCPP) authorized by Subtitle I of Title XII of the Food Security Act of 1985. The waiver must further ACEP purposes while also addressing whether the purpose and conservation objectives of the RCPP project(s) are consistent with the specific Wetland Reserve Easement (WRE) or Agricultural Land Easement (ALE) conservation purpose and objectives. No waiver will result in reducing the quality of wetland wildlife habitat that is restored under WRE, or the protection for agricultural viability under ALE.
(i) To assist in RCPP implementation the Chief may also waive the applicability of the limitation in section 1001D(b)(2) of the Food Security Act of 1985 for participating landowners if the Chief determines that the waiver is necessary to fulfill RCPP objectives.
The following definitions will apply to this part, and all documents issued in accordance with this part, unless specified otherwise:
(1) Has not operated a farm or ranch, or who has operated a farm or ranch for not more than 10 consecutive years and who will materially and substantially participate in the operation of the farm or ranch. This requirement applies to all members of a legal entity.
(2) In the case of an individual, individually, or with the immediate family, material and substantial participation requires that the individual provide substantial day-to-day labor and management of the farm or ranch consistent with the practices in the county or State where the farm is located.
(3) In the case of a legal entity or joint operation, all members must materially and substantially participate in the operation of the farm or ranch. Material and substantial participation requires that each of the members provide some amount of the management or labor and management necessary for day-to-day activities, such that if each of the members did not provide these inputs, operation of the farm or ranch would be seriously impaired.
(1) Applies to highly erodible cropland;
(2) Describes the conservation system applicable to the highly erodible cropland and describes the decisions of the person with respect to location, land use, tillage systems, and conservation treatment measures and schedules and where appropriate, will include conversion of highly erodible cropland to less intensive uses; and
(3) Is developed in accordance with 7 CFR part 12.
(1)(i) Rangeland, pastureland, or shrubland on which the vegetation is dominated by native grasses, grass-like plants, shrubs, or forbs, or
(ii) Improved, naturalized pastureland and rangeland; and
(2)(i) Provides, or could provide, habitat for threated or endangered species or at-risk species,
(ii) Protects sensitive or declining native prairie or grassland types, or
(iii) Provides protection of highly sensitive natural resources.
(1) Listed in the National Register of Historic Places (established under the National Historic Preservation Act (NHPA), 16 U.S.C. 470,
(2) Formally determined eligible for listing in the National Register of Historic Places (by the State Historic Preservation Office (SHPO) or Tribal Historic Preservation Office (THPO) and the Keeper of the National Register in accordance with section 106 of the NHPA);
(3) Formally listed in the State or Tribal Register of Historic Places of the SHPO (designated under section 101(b)(1)(B) of the NHPA) or the THPO (designated under section 101(d)(1)(C) of the NHPA); or
(4) Included in the SHPO or THPO inventory with written justification as to why it meets National Register of Historic Places criteria.
(1)(i) A person with direct or indirect gross farm sales not more than the current indexed value in each of the previous two fiscal years (adjusted for inflation using Prices Paid by Farmer Index as compiled by National Agricultural Statistical Service), and
(ii) Has a total household income at or below the national poverty level for a family of four, or less than 50 percent of county median household income in each of the previous two years (to be determined annually using Commerce Department Data); or
(2) A legal entity or joint operation if all individual members independently qualify under paragraph (1) of this definition.
(1) Is organized for, and at all times since, the formation of the organization and has been operated principally for one or more of the conservation purposes specified in clause (i), (ii), (iii), or (iv) of section 170(h)(4)(A) of the Internal Revenue Code of 1986;
(2) Is an organization described in section 501(c)(3) of that Code that is exempt from taxation under 501(a) of that Code; and
(3) Is described—
(i) In section 509(a)(1) and (2) of that Code, or
(ii) Is described in section 509(a)(3) of that Code and is controlled by an organization described in section 509(a)(2) of that Code.
(1) Has a predominance of hydric soils;
(2) Is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and
(3) Supports a prevalence of such vegetation under normal circumstances.
(1) Habitat for migratory birds and other wildlife, in particular at-risk species;
(2) Protection and improvement of water quality;
(3) Attenuation of water flows due to flood;
(4) The recharge of ground water;
(5) Protection and enhancement of open space and aesthetic quality;
(6) Protection of flora and fauna which contributes to the Nation's natural heritage;
(7) Carbon sequestration; and
(8) Contribution to educational and scientific scholarship.
(1) The original vegetation community and hydrology are, to the extent practical, re-established; or
(2) A community different from what likely existed prior to degradation of the site is established. The hydrology and native self-sustaining vegetation being established will substantially replace original habitat functions and values and does not involve more than 30 percent of the easement area.
(a) ACEP–ALE eligibility of entities. An entity which has submitted an ACEP–ALE application to be considered an eligible entity may obtain a review of any administrative determination concerning their eligibility for participation utilizing the administrative appeal regulations provided in 7 CFR parts 11 and 614.
(b) ACEP–WRE applicants and participants. An applicant or participant in the ACEP–WRE may obtain a review of any administrative determination concerning eligibility for participation or receipt of payment utilizing the administrative appeal regulations provided in 7 CFR parts 11 and 614.
(c) Easement administration determinations under ACEP after easement closing. NRCS determinations that are made pursuant to its rights in an ACEP-funded easement after closing may be appealed to the State Conservationist as specified in the notice provided to the landowner when NRCS exercises its rights under the easement. Such determinations are not subject to appeal under 7 CFR part 11.
(a) If it is determined by NRCS that anyone has employed a scheme or device to defeat the purposes of this part, any part of any program payment otherwise due or paid during the applicable period may be withheld or be required to be refunded with interest, thereon, as determined appropriate by NRCS.
(b) A scheme or device includes, but is not limited to, coercion, fraud, misrepresentation, depriving anyone of a program benefit, or for the purpose of obtaining a payment to which they would otherwise not be entitled.
(a) After an easement has been recorded, no subordination, exchange, modification, or termination will be made in any interest in land, or portion of such interest, except as approved by the NRCS.
(b) NRCS may approve subordinations, exchanges, modifications, or terminations if NRCS determines that:
(1) It is in the Federal Government's interest to subordinate, exchange, modify, or terminate the interest in the land enrolled in the program;
(2) The subordination, exchange, modification, or termination action will address a compelling public need or will facilitate the practical administration and management of the easement area or the program, as determined by the NRCS;
(3) There is no practicable alternative that would address the compelling public need and avoid the easement area;
(4)(i) The change will not adversely affect the conservation functions and values for which the easement was acquired or
(ii) If there are no practicable alternative that exists other than impact to the conservation value of the easement area, such adverse impacts have been minimized to the greatest extent practicable, and any remaining adverse impacts mitigated by enrollment of other lands that provide equal or greater conservation functions and values, as determined by NRCS, at no cost to the government;
(5) The easement subordination, modification, exchange, or termination under this section will not affect more than 10 percent of the original easement area. NRCS may authorize a greater percentage of the original easement area to be affected if NRCS determines that it is impracticable to achieve program purposes on the original easement area; and
(6) The subordination, exchange, modification, or termination action will result in comparable conservation functions and value and equivalent or greater economic value to the United States as determined pursuant to paragraph (d) of this section.
(c) NRCS must determine that the landowner and, if applicable, the eligible entity agree to such easement subordination, modification, exchange, or termination prior to considering that such easement administration action should be approved.
(d) A determination of equal or greater economic value to the United States under paragraph (b) of this section will be made in accordance with an approved easement valuation methodology for ALE easements under subpart B or for WRE easements under subpart C. In addition to the value of the easement itself, NRCS may consider other financial investments it has made in the acquisition, restoration, and management of the original easement to ensure that the easement administration action results in equal or greater economic value to the United States.
(e) Subordinations, exchanges, modifications, or terminations must result in equal or greater conservation and economic values to the United States. Subordinations, exchanges, or modifications of ACEP easements must result in no net loss of easement acres.
(f) When reviewing a proposed action under this section, the preferred alternative is to avoid the easement area. If the easement area cannot be avoided entirely, then the preferred alternative should minimize impacts to the original easement area and its conservation functions and values.
(g) Easement modifications, including subordinations, are preferred to easement exchanges which involve lands that are not physically adjacent to the original easement area. Easement exchanges are limited to circumstances where there are no available lands adjacent to the original easement area that will result in equal or greater conservation and economic values to the United States.
(h) Replacement of easement acres as part of an easement exchange must occur within the same State and within the same eight-digit watershed as determined by the hydrologic unit codes developed by the U.S. Geological Survey.
(i) Where NRCS determines that recordation of a new deed is necessary to effect an easement administration action under this section, NRCS will use the most recent version of the ACEP deed document or deed terms approved by NRCS.
(j) If a modification, subordination or exchange involves an amended or new easement deed, the amended or new easement deed will be duly prepared and recorded in conformity with standard real estate practices, including requirements for title approval, subordination of liens, and recordation of documents.
(k) At least 90 days prior to taking any termination action, written notice of such termination action will be
(l) A termination must meet criteria identified in this part and are limited to those circumstances where NRCS determines that the purposes of the program can no longer be achieved on the original easement area or the terms of the easement are no longer enforceable and there are no acceptable replacement acres available. NRCS will enter into a compensatory agreement with the proponent of the termination that identifies the costs for which the United States must be reimbursed, including but not limited to the value of the easement itself based upon current valuation methodologies, repayment of legal boundary survey costs, legal title work costs, associated easement purchase and restoration costs, and legal filing fees.
(m)
(a)
(b)
(c)
Any cost-share, contract, agreement, or easement payment or portion, thereof, due any person, legal entity, Indian Tribe, eligible entity, or other party under this part will be allowed without regard to any claim or lien in favor of any creditor, except agencies of the United States Government.
Any person, legal entity, Indian Tribe, eligible entity, or other party entitled to any cash payment under this program may assign the right to receive such cash payments, in whole or in part.
(a)
(b)
(a)
(2) To participate in ACEP–ALE, eligible entities as identified in paragraph (b) of this section must submit applications to NRCS State offices to partner with NRCS to acquire conservation easements on eligible land. Eligible entities with applications selected for funding must enter into a cooperative agreement with NRCS and use the NRCS required minimum deed terms specified therein, the effect of which is to protect natural resources and the agricultural nature of the land and permit the landowner the right to continue agricultural production and related uses subject to an agricultural land easement plan as approved by NRCS.
(3) Under the agreement, the Federal share of the cost of an agricultural land easement or other interest in eligible land will not exceed 50 percent of the fair market value of the agricultural land easement and the eligible entity will provide a share that is at least equivalent to the Federal share, and at least 50 percent of the eligible entity share is from the eligible entity's own cash resources unless otherwise specified in this part.
(4) The duration of each agricultural land easement or other interest in land will be in perpetuity or the maximum duration permitted by State law.
(b)
(i) A commitment to long-term conservation of agricultural lands,
(ii) A capability to acquire, manage, and enforce easements,
(iii) Sufficient number of staff dedicated to monitoring and easement stewardship, and
(iv) The availability of funds at the time of application sufficient to meet the eligible entity's contribution requirements for each parcel proposed for funding.
(2) All entities identified on the application or agreement must:
(i) Ensure that their records and the records of all landowners with parcels selected for funding have been established in the USDA customer records system and are responsible for ensuring that USDA has all the documentation needed to establish these records, and
(ii) Comply with applicable registration and reporting requirements of the Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109–282, as amended), and 2 CFR parts 25 and 170, and maintain such registration for the duration of the cooperative agreement.
(c)
(1) Be in compliance with the highly erodible land and wetland conservation provisions in 7 CFR part 12. Persons or legal entities must be in compliance with the Adjusted Gross Income
(2) Agree to provide access to the property and such information to NRCS as the agency deems necessary or desirable to assist in its determination of eligibility for program implementation purposes; and
(3) Have their records established in the USDA customer records system.
(d)
(i) Is private or Tribal land on a farm or ranch subject to a written pending offer by an eligible entity,
(ii) Contains at least 50 percent prime or unique farmland, or designated farm and ranch land of State or local importance unless otherwise determined by NRCS, contains historical or archaeological resources, the enrollment of which would protect grazing uses and related conservation values by restoring and conserving land, or furthers a State or local policy consistent with the purposes of the ACEP–ALE,
(iii) Is cropland; rangeland; grassland or land that contains forbs or shrubland for which grazing is the predominant use; located in an area that has been historically dominated by grassland, forbs, or shrubs and could provide habitat for animal or plant populations of significant ecological value; pastureland; or nonindustrial private forest land that contributes to the economic viability of a parcel offered for enrollment or serves as a buffer to protect such land from development, and
(iv) Possesses suitable onsite and offsite conditions which will allow the easement to be effective in achieving the purposes of the program.
(2) If land offered for enrollment is determined eligible under paragraph (d)(1) of this section, then NRCS may also enroll land that is incidental to the eligible land if the incidental land is determined by NRCS to be necessary for the efficient administration of an agricultural land easement.
(3) Eligible land, including eligible incidental land, may not include forest land of greater than two-thirds of the easement area unless waived by NRCS with respect to lands identified by NRCS as sugar bush that contributes to the economic viability of the parcel. Land with contiguous forest that exceeds the greater of 40 acres or 20 percent of the easement area will have a forest management plan before the easement is purchased and compensation paid to the landowner unless NRCS has approved an alternative means by which the forest land's contribution to the economic viability of the land has been demonstrated.
(e)
(1) Lands owned by an agency of the United States, other than land held in trust for Indian Tribes;
(2) Lands owned in fee title by a State, including an agency or a subdivision of a State, or unit of local government;
(3) Land owned by a nongovernmental organization whose purpose is to protect agricultural use and related conservation values including those listed in the statute under eligible land;
(4) Land subject to an easement or deed restriction which, as determined by NRCS, provides similar restoration and protection as would be provided by enrollment in the program;
(5) Land where the purposes of the program would be undermined due to onsite or offsite conditions, such as risk of hazardous substances, proposed or existing rights of way, infrastructure development, or adjacent land uses;
(6) Land which NRCS determines to have unacceptable exceptions to clear title or insufficient legal access; or
(7) Land on which gas, oil, earth, or mineral rights exploration has been leased or is owned by someone other than the landowner is ineligible under ACEP–ALE unless it is determined by NRCS that the third party rights will not harm or interfere with the conservation values or agricultural uses of the easement, that any methods of exploration and extraction will have only a limited and localized impact on the easement, and the limitations are specified in the ALE deed.
(a) To apply for enrollment under a new agreement or if applicable, under an existing agreement in a subsequent fiscal year, an eligible entity must submit an entity application for an ACEP–ALE agreement and any associated individual parcel applications to NRCS in the State where parcels are located.
(b) Applications may be submitted on a continuous basis or in response to specific program solicitations. NRCS may announce one or more application cut-off dates for funding consideration within a given fiscal year.
(c) NRCS will determine the entity, land, and landowner eligibility based on the application materials provided by the eligible entity, onsite assessments, and the criteria set forth in § 1468.20.
(d) At the end of each fiscal year, the lists of pending, unfunded eligible parcels will be cancelled unless the eligible entity requests that specific parcels be considered for funding in the next fiscal year and provides updated application information to NRCS.
(a) After NRCS determines the eligibility of the landowner and the land, it can score and rank the parcels for funding. NRCS will use national and State criteria to score and rank eligible parcels. The national ranking criteria will comprise at least half of the ranking score. The State criteria will be developed by NRCS on a State-by-State basis, with advice from the State Technical Committee. Eligible parcels are ranked at the State level.
(b) The national ranking criteria are:
(1) Percent of prime, unique, and other important farmland in the parcel to be protected;
(2) Percent of cropland, rangeland, grassland, historic grassland, pastureland, or nonindustrial private forest land in the parcel to be protected;
(3) Ratio of the total acres of land in the parcel to be protected to average farm size in the county according to the most recent USDA Census of Agriculture;
(4) Decrease in the percentage of acreage of farm and ranch land in the county in which the parcel is located between the last two USDA Censuses of Agriculture;
(5) Percent population growth in the county as documented by the United States Census;
(6) Population density (population per square mile) as documented by the most recent United States Census;
(7) Existence of a farm or ranch succession plan or similar plan established to address farm viability for future generations;
(8) Proximity of the parcel to other protected land, such as military installations; land owned in fee title by the United States or an Indian Tribe, State or local government, or by a nongovernmental organization whose purpose is to protect agricultural use and related conservation values; or land that is already subject to an easement or deed restriction that limits the conversion of the land to nonagricultural use;
(9) Proximity of the parcel to other agricultural operations and agricultural infrastructure;
(10) Maximizing the protection of contiguous acres devoted to agricultural use;
(11) Whether the land is currently enrolled in CRP in a contract that is set
(12) Other additional criteria as determined by NRCS.
(c) State or local criteria as determined by NRCS, with advice of the State Technical Committee, may only include:
(1) The location of a parcel in an area zoned for agricultural use;
(2) The eligible entity's performance in managing and enforcing easements. Performance must be measured by the efficiency by which easement transactions are completed or percentage of parcels that have been monitored and the percentage of monitoring results that have been reported;
(3) Multifunctional benefits of farm and ranch land protection including social, economic, historical and archaeological, environmental benefits, species protection, or climate change resiliency;
(4) Geographic regions where the enrollment of particular lands may help achieve national, State, and regional conservation goals and objectives, or enhance existing government or private conservation projects;
(5) Diversity of natural resources to be protected;
(6) Score in the land evaluation and site assessment system or equivalent measure for grassland enrollments. This score serves as a measure of agricultural viability (access to markets and infrastructure); and
(7) Other criteria determined by NRCS that will allow for the selection of parcels that will achieve ACEP–ALE purposes.
(d) If NRCS determines that the purchase of two or more agricultural land easements are comparable in achieving program goals, NRCS will not assign a higher priority to any one of these agricultural land easements solely on the basis of lesser cost to the program.
(e) NRCS will rank all eligible parcels that have been submitted prior to an application cut-off date in accordance with the national and State ranking criteria before selecting parcels for inclusion in a cooperative agreement.
(f) NRCS will list the selected eligible parcels in the cooperative agreements with the eligible entities that submitted the parcels, and the cooperative agreements will be signed by NRCS and eligible entities.
(g) If the terms of the cooperative agreement allow for amendments in a subsequent fiscal year, the subsequent fiscal year's selected eligible parcels will be identified on an amendment to the cooperative agreement for that fiscal year. Funds for each subsequent fiscal year's parcels will be obligated with new NRCS and eligible entity signatures on each fiscal year's amendment. Parcels funded on each fiscal year's amendment will have a separate deadline for easement purchase, requesting reimbursement, and funding expiration.
(a) NRCS will enter into a cooperative agreement with selected eligible entities that stipulates the terms and conditions under which the eligible entity is permitted to use ACEP–ALE funding, and will incorporate all ACEP–ALE requirements. NRCS will make a cooperative agreement template available to the eligible entities. The cooperative agreement will address:
(1) The interests in land to be acquired, including the United States' right of enforcement, the minimum deed requirements, as well as the form and other terms and conditions of the easement deed;
(2) The management and enforcement of the rights on lands acquired with ACEP–ALE funds;
(3) The responsibilities of NRCS;
(4) The responsibilities of the eligible entity on lands acquired with ACEP–ALE funds;
(5) The requirement for each easement to have an agricultural land easement plan that is approved by NRCS and signed by the landowner and the eligible entity prior to execution of the easement deed and payment of easement compensation to the landowner;
(6) The allowance of eligible parcel substitution upon mutual agreement of the parties;
(7) The certification by the landowner at the time of easement execution and payment of easement compensation of the extent of any charitable contribution the landowner has provided to eligible entity; and
(8) Other requirements deemed necessary by NRCS to meet the purposes of this part or protect the interests of the United States.
(b) The term of cooperative agreements will be up to 5 fiscal years following the fiscal year the agreement is signed for certified entities and up to 3 fiscal years following the fiscal year the agreement is signed for other eligible entities.
(c) The cooperative agreement will include an attachment listing the eligible parcels accepted by the NRCS. This list will include landowners' names and addresses, acreage, the estimated fair market value, the estimated Federal contribution, and other relevant information.
(d) The cooperative agreement will require the eligible entity to comply with applicable registration and reporting requirements of the Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109–282, as amended) and 2 CFR parts 25 and 170.
(e) With NRCS approval, the eligible entity may substitute acres within a pending easement offer. Substituted acres must not decrease the monetary value of the offered easement or reduce the easements capability in meeting program purposes. With NRCS approval, an eligible entity may substitute pending easement offers within their cooperative agreement. The substituted landowner and easement offer must meet eligibility criteria as described in § 1468.20. NRCS may require re-ranking of substituted acres within an easement offer and substituted easement offers within a cooperative agreement.
(a)
(i) An appraisal using the Uniform Standards of Professional Appraisal Practices or the Uniform Appraisal Standards for Federal Land Acquisitions,
(ii) An areawide market analysis or survey, or
(iii) Another industry-approved method approved by NRCS.
(2) Prior to receiving funds for an agricultural land easement, the eligible entity must provide NRCS with an acceptable determination of the fair market value of the agricultural land easements that conforms to applicable industry standards and NRCS specifications and meets the requirements of this part.
(3) If the value of the easement is determined using an appraisal, the appraisal must be completed and signed by a State-certified general appraiser and must contain a disclosure statement by the appraiser. The appraisal must conform to the Uniform Standards of Professional Appraisal Practices or the Uniform Appraisal Standards for Federal Land Acquisitions as selected by the eligible entity.
(4) If the fair market value of the easement is determined using an areawide market analysis or survey, the
(5) Requests to use another industry-approved method must be submitted to NRCS and approved by NRCS prior to entering into the cooperative agreement. NRCS will identify the applicable industry standards and any associated NRCS specifications based on the methodology approved.
(6) NRCS will review for quality assurance purposes, appraisals, areawide market analysis or surveys, valuation reports, or other information resulting from another industry-approved method approved for use by NRCS. Eligible entities must provide a copy of the applicable report or other information used to establish the fair market value of the agricultural land easement to NRCS at least 90 days prior to the planned date of easement execution and payment of easement compensation to the landowner.
(7) Prior to the eligible entity's purchase of the easement, including payment of easement compensation to the landowner, NRCS must approve the determination of the fair market value of the agricultural land easement upon which the Federal share will be determined.
(8) The landowner may make a charitable donation for a qualified conservation contribution (as defined by Section 170(h) of the Internal Revenue Code of 1986) to the eligible entity as provided in paragraph (b) of this section.
(b)
(2) An eligible entity may include as part of its share a charitable donation or qualified conservation contribution (as defined by section 170(h) of the Internal Revenue Code of 1986) from the landowner if the eligible entity contributes its own cash resources in an amount that is at least 50 percent of the amount of the Federal share.
(3) NRCS may authorize a waiver to increase the Federal share of the cost an agricultural land easement to an amount not to exceed 75 percent of the fair market value of the agricultural land easement if:
(i) NRCS determines the lands to be enrolled are grasslands of special environmental significance as defined in this part,
(ii) An eligible entity will share in the cost of purchasing an agricultural land easement in an amount that is no less than 33.33 percent of the Federal share. The eligible entity share may include a qualified landowner contribution if the eligible entity contributes its own cash resources in an amount that is at least 16.67 percent of the Federal share, and
(iii) The eligible entity agrees to incorporate and enforce the additional necessary deed restrictions to manage and enforce the easement to ensure the grasslands of special environmental significance attributes are protected.
(4) NRCS may waive a portion of the applicable eligible entity cash contribution requirement for enrollments that NRCS determines are of projects of special significance, including ALE enrollments that have received a waiver as grasslands of special environmental significance waiver. The waiver of the entity cash contribution does not result in an increase in the applicable Federal share and may only be authorized if NRCS determines the parcel is a project of special significance and NRCS determines that—
(i) The transaction is subject to an increase in the private landowner donation that is equal to the amount of the waiver,
(ii) The increase in the landowner donation is voluntary,
(iii) The property is in active agricultural production,
(iv) The agricultural land easement plan will address the protection of the attributes resulting in the parcel being a project of special significance, and
(v) The eligible entity contributes its own cash resources in an amount that is:
(A) For projects of special significance that are not grasslands of special environmental significance, at least 25 percent of the amount of the Federal share, or at least 10 percent of the Federal share in States that offer a State tax credit for a qualified conservation contribution on agricultural land; and
(B) For enrollment on lands that has received a grasslands of special environmental significance waiver, at least 8.33 percent of the amount of the Federal share, or at least 3.33 percent of the Federal share in States that offer a State tax credit for a qualified conservation contribution on agricultural land.
(vi) The parcel must meet definition of project of special significance and meet one or more of the following national criteria. The parcel is:
(A) Listed on the National Register of Historic Places or is a traditional cultural property;
(B) Located within a micropolitan statistical area and 50 percent of the adjacent land is agricultural land;
(C) Located within a metropolitan statistical area;
(D) An education or demonstration farm or ranch focused on agricultural production and natural resource conservation;
(E) A farm or ranch operated for the purpose of increasing participation in agriculture and natural resource conservation by underserved communities, veterans, beginning farmers or ranchers, or disabled farmers or ranchers;
(F) Officially designated as having been in the same family ownership for over 100 years; or
(G) Meets the definition of grasslands of special environmental significance.
(c)
(2) NRCS will conduct its own technical and administrative review of appraisals, areawide market analysis, or other easement valuation reports and its hazardous materials reviews.
(3) NRCS may provide technical assistance to develop an agricultural land easement plan or component plans or may provide ACEP–ALE funds to technical service providers (TSP) under 7 CFR part 652 to develop the agricultural land easement plan or component easement plans.
(a) Under ACEP–ALE, a landowner grants an easement to an eligible entity with which NRCS has entered into an ACEP–ALE cooperative agreement. The easement deed will require that the easement area be maintained in accordance with ACEP–ALE goals and objectives for the term of the easement.
(b) Written pending offers by an eligible entity must be for acquiring an easement in perpetuity, except where State law prohibits a permanent easement. In such cases where State law limits the term of a conservation
(c) The eligible entity may use its own terms and conditions in the agricultural land easement deed, but the agricultural land easement deed must contain the minimum deed requirements as specified by NRCS in the cooperative agreement, either in the deed or through an addendum that is incorporated therein.
(d) For eligible entities that have not been certified, the deed document must be reviewed and approved by NRCS in advance of use as provided herein:
(1) The eligible entity must submit individual agricultural land easement deeds to NRCS at least 90 days before the planned easement purchase date and be approved by NRCS in advance of use.
(2) Eligible entities with multiple eligible parcels in a cooperative agreement may submit an agricultural land easement deed template for review and approval. The deed templates must be reviewed and approved by NRCS in advance of use.
(3) NRCS may conduct an additional review of the agricultural land easement deeds for individual parcels prior to the execution of the easement deed by the landowner and the eligible entity to ensure that they contain the same language as approved by National Headquarters and that the appropriate site-specific information has been included.
(e) NRCS reserves the right to require additional specific language or require removal of language in the agricultural land easement deed to ensure the enforceability of the easement deed, protect the interests of the United States, or to otherwise ensure ALE purposes will be met.
(f) Among the minimum deed requirements specified in the cooperative agreement, the deed must:
(1) Include a right of enforcement clause for NRCS. NRCS will specify the terms for the right of enforcement clause, including that such interest in the agricultural land easement remains in effect for the duration of the easement and any changes that affect NRCS's interest in the agricultural land easement must be reviewed and approved by NRCS under § 1468.6 of this part.
(2) Ensure compliance with an agricultural land easement plan that is provided by the eligible entity in consultation with the landowner, approved by NRCS, and implemented according to NRCS requirements. NRCS may provide technical assistance for the development or implementation of the agricultural land easement plan. If the parcel contains highly erodible land, the conservation plan component of the agricultural land easement plan will be developed and managed in accordance with the Food Security Act of 1985 and its associated regulations. The access must be sufficient to provide the United States ingress and egress to the easement area to ensure compliance pursuant to its right of enforcement.
(3) Specify that impervious surfaces will not exceed 2 percent of the ACEP–ALE easement area, excluding NRCS-approved conservation practices unless NRCS grants a waiver as follows:
(i) The eligible entity may request a waiver of the 2 percent impervious surface limitation at the time that a parcel is approved for funding,
(ii) NRCS may waive the 2 percent impervious surface limitation on an individual easement basis, provided that no more than 10 percent of the easement area is covered by impervious surfaces,
(iii) Before waiving the 2 percent limitation, NRCS will consider, at a minimum, population density; the ratio of open, prime, and other important farmland versus impervious surfaces on the easement area; the impact to water quality concerns in the area; the type of agricultural operation; parcel size; and the purposes for which the easement was acquired,
(iv) Eligible entities may submit an impervious surface limitation waiver process to NRCS for review and consideration. The eligible entities must apply any approved impervious surface limitation waiver processes on an individual easement basis, and
(v) NRCS will not approve blanket waivers or entity blanket waiver processes of the impervious surface limitation. All ACEP–ALE easements must include language limiting the amount of impervious surfaces within the easement area.
(4) Include an indemnification clause requiring the landowner to indemnify and hold harmless the United States from any liability arising from or related to the property enrolled in ACEP–ALE. This provision cannot be waived.
(5) Include an amendment clause requiring that any changes to the easement deed after its recordation must be consistent with the purposes of the agricultural land easement and this part. Any substantive amendment, including any subordination of the terms of the easement or modifications, exchanges, or terminations of the easement area, must be approved by NRCS prior to recordation or else the action is null and void.
(6) Prohibit commercial and industrial activities except those activities that NRCS has determined are consistent with the agricultural use of the land.
(7) Prohibit the subdivision of the property subject to the agricultural land easement, except where state or local regulations explicitly require subdivision to construct residences for employees working on the property or where otherwise authorized by NRCS.
(8) Include specific protections related to the purposes for which the agricultural land easement is being purchased, including provisions to protect historic or archaeological resources or grasslands of special environmental significance.
(9) Other minimum deed terms specified by NRCS to ensure that ACEP–ALE purposes are met.
(g) NRCS will make available for an eligible entity's use a standard set of minimum deed terms that could be wholly incorporated along with the eligible entity's own deed terms into the agricultural land easement deed, or as an addendum that is attached and incorporated by reference into the deed. If an eligible entity agrees to use the standard set of minimum deed terms, NRCS and the eligible entity will identify in the cooperative agreement those minimum standard deed terms as a requirement and the review of individual deeds may not be required. The minimum standard deed terms will specify that if such terms conflict with other terms of the deed, the NRCS terms superseded and prevail. NRCS may place priority on applications where an eligible entity agrees to use the standard set of minimum deed terms.
(h) The eligible entity will acquire, hold, manage, monitor, and enforce the easement. The eligible entity may have the option to enter into an agreement with a governmental or private organizations that have no property rights or interests in the easement area to carry out easement monitoring, management and enforcement responsibilities.
(i) All agricultural land easement deeds acquired with ACEP–ALE funds must be recorded. The eligible entity will provide proof of recordation to NRCS within the timeframe specified in the cooperative agreement.
(a) The terms of the agricultural land easement deed will permit the landowner the right to continue agricultural production and related uses subject to an agricultural land easement plan, approved by NRCS and the landowner. An agricultural land
(1) Describe the activities which promote the long-term viability of the land to meet the purposes for which the easement was acquired;
(2) Identify required and recommended conservation practices that address the purposes and resource concerns for which the parcel was selected;
(3) Identify additional or specific criteria associated with permissible and prohibited activities consistent with the terms of the deed; and
(4) If the agricultural land easement contains certain land use types, a component plan must be incorporated by reference into the agricultural land easement plan for each land use type present on the easement as follows:
(i) Grasslands must have a grasslands management plan as defined in this part which includes a description of the grazing management system consistent with NRCS prescribed grazing standards,
(ii) Forest land as described in § 1468.20(d)(3) must have a forest management plan, and
(iii) Highly erodible land must have a conservation plan wherein NRCS may require the conversion to less intensive uses. The terms of the conservation plan must be developed and managed in compliance with the Food Security Act of 1985 and its associated regulations.
(5) The eligible entity is responsible to obtain and provide the agricultural land easement plan to NRCS. The agricultural land easement plan may be developed by NRCS, a qualified TSP, or an NRCS-certified conservation planner with current certifications.
(6) Prior to the execution of the easement by the eligible entity and the landowner and payment of easement compensation to the landowner, the agricultural land easement plan must be approved by NRCS and be signed by the landowner and the eligible entity. The eligible entity is primarily responsible to ensure compliance with any required provisions of the agricultural land easement plan.
(b) [Reserved].
(a) To be considered for certification, an entity must submit a written request for certification to NRCS, which specifically addresses the following items:
(1) An explanation of how the entity meets the requirements identified in § 1468.20(d) of this section;
(2) An agreement to use for ACEP–ALE funded acquisitions easement valuation methodologies identified in section § 1468.24 of this part;
(3) Proof that the entity holds, manages, and monitors a minimum of 25 agricultural land conservation easements, unless the entity requests and receives a waiver of this requirement from NRCS;
(4) Proof that the entity holds, manages, and monitors a minimum of five ACEP–ALE, FRPP, or Farmland Protection Program conservation easements;
(5) A showing of a demonstrated ability to complete acquisition of easements in a timely fashion;
(6) A showing that it has the capacity to enforce the provisions of easement deeds and history of such enforcement;
(7) For nongovernmental organizations, information that the entity possesses a dedicated fund for the purposes of easement management, monitoring, and enforcement where such fund is sufficiently capitalized. The fund must be dedicated to the purposes of managing, monitoring, and enforcing each easement held by the eligible entity; and
(8) A plan for administering easements enrolled under this part, as determined by NRCS.
(b) NRCS will notify an entity in writing whether they have been certified and the rationale for the agency's decision. When NRCS determines an entity qualifies as certified:
(1) NRCS may enter into a cooperative agreement with the certified entity through which NRCS may obligate funding for up to 5 fiscal years. New parcels or prior-year unfunded parcels submitted for funding by certified entities must compete for funding each year. Selected parcels and funding will be added to the existing cooperative agreement using an amendment to the cooperative agreement. Amendments added in the last year of the agreement cannot be extended;
(2) NRCS will accept applications from certified entities continuously throughout the fiscal year;
(3) The terms of the cooperative agreement will include the minimum deed terms and conditions to ensure that ACEP–ALE purposes will be met by the certified entity without requiring NRCS to pre-approve each easement transaction prior to closing.
(i) Certified entities may purchase easements without NRCS approving the agricultural land easement deeds, agricultural land easement plans, titles, or appraisals before the purchase of the easement;
(ii) Certified entities will prepare the agricultural land easement deeds, agricultural land easement plans, titles, and appraisals in accordance with NRCS requirements as identified in the cooperative agreement;
(4) NRCS may provide technical assistance to develop the agricultural land easement plan.
(5) NRCS will conduct quality assurance reviews of a percentage of the agricultural land easement transactions submitted by the certified entity for payment and annual monitoring reports submitted by the certified entity. The review will include whether the deed, title review, agricultural land easement plan, easement valuation determinations, and subsequent monitoring were conducted in accordance with the requirements set forth by NRCS in its certification of the eligible entity or in the cooperative agreement entered into with the certified entity; and
(6) If an agricultural land easement deed, agricultural land easement plan, title, appraisal, or other easement valuation determination, or monitoring report fails the NRCS quality assurance review, NRCS will provide the certified entity an opportunity to correct the errors. If the certified entity fails to correct the errors to NRCS' satisfaction, NRCS will consider whether to allow the certified entity to continue to purchase ALE-funded easements without prior NRCS approval, to decertify the entity in accordance with paragraph (c) of this section, or require the certified entity to take administrative steps necessary to remedy the deficiencies.
(c)
(2) If NRCS determines that the certified entity no longer meets these criteria, the Chief will:
(i) Provide the certified entity a specified period of time, at a minimum 180 days, in which to take such actions as may be necessary to correct the identified deficiencies, and
(ii) If NRCS determines the certified entity does not meet the criteria established in this part after the 180 days, NRCS will send written notice of decertification of the entity's certification status or eligibility for future ACEP–ALE funding. This notice will specify the actions that have not been completed to retain certification status, the actions entity must take to request certification status, the status of funds in the cooperative agreement; and the eligibility of the entity to apply for future ACEP–ALE funds. The entity may contest the Notice of Decertification in
(3) The period of decertification may not exceed 3 years in duration, with duration of decertification based upon the seriousness of the facts; and
(4) The entity may be recertified upon application to NRCS, after the decertification period has expired, and when the entity has met the requirements as outlined under § 1468.20(d).
(a) In the event of a violation of the agricultural land easement terms, the eligible entity will notify the landowner and the violator, if different than the landowner, and NRCS. The landowner may be given reasonable notice and, where appropriate, an opportunity to voluntarily correct the violation in accordance with the terms of the agricultural land easement.
(b) In the event that the eligible entity fails to enforce any of the terms of the agricultural land easement as determined by NRCS, NRCS may exercise the United States' rights to enforce the terms of the agricultural land easement through any and all authorities available under Federal or State law.
(c) Notwithstanding paragraph (a) of this section, NRCS, upon notification to the landowner and the eligible entity, reserves the right to enter upon the easement area if the annual monitoring report provided by the eligible entity documenting compliance with the agricultural land easement and the agricultural land easement plan is insufficient or is not provided annually, the United States has evidence of an unaddressed violation, or to remedy deficiencies or easement violations as it relates to the agricultural land easement plan. In the event of an emergency, the entry may be made at the discretion of NRCS when the actions are deemed necessary to prevent, terminate or mitigate a potential or unaddressed violation with notification to the landowner and eligible entity provided at the earliest practicable time. The landowner will be liable for any costs incurred by NRCS as a result of the landowner's failure to comply with the easement requirements as it relates to agricultural land easement violations.
(d) The United States will be entitled to recover any and all costs from the eligible entity, including attorney's fees or expenses, associated with any enforcement or remedial action as it relates to the enforcement of the ACEP–ALE easement.
(e) In instances where an easement is terminated, the proponent of the termination action shall pay to CCC an amount determined by NRCS.
(f) If NRCS exercises its rights identified under an agricultural land easement NRCS will provide written notice to the eligible entity at the eligible entity's last known address. The notice will set forth the nature of the noncompliance by the eligible entity and a 60-day period to cure. If the eligible entity fails to cure within the 60-day period, NRCS will take the action specified under the notice. NRCS reserves the right to decline to provide a period to cure if NRCS determines that imminent harm may result to the conservation values or other interest in land it seeks to protect.
(a)
(2) To participate in ACEP–WRE, a landowner must agree to the implementation of a WRPO, the effect of which is to restore, protect, enhance, maintain, and manage the hydrologic conditions of inundation or saturation of the soil, native vegetation, and natural topography of eligible lands.
(3) NRCS may provide financial assistance through an easement restoration agreement for the conservation practices and activities that promote the restoration, protection, enhancement, maintenance, and management of wetland functions and values and associated habitats.
(4) For ACEP–WRE enrollments, NRCS may implement such conservation practices and activities through an agreement with the landowner, a contract with a vendor, an interagency agreement, or a cooperative agreement with a cooperating entity. Specific restoration, protection, enhancement, maintenance, and management actions may be undertaken by the landowner, NRCS or its designee.
(5) The duration of a wetland reserve easement may be either perpetual, 30-years, or the maximum duration permitted by State law. The duration of a 30-year contract on acreage owned by Indian Tribes is 30 years.
(b)
(2) The limitations in paragraph (1) of this subsection do not apply to areas devoted to windbreaks or shelterbelts after November 28, 1990, or to cropland designated by NRCS with “subclass w” in the land capability classes IV through VIII because of severe use limitations due to factors related to excess water such as poor soil drainage, wetness, high water table, soil saturation, or inundation.
(3) NRCS and the Farm Service Agency will concur before a waiver of the 25 percent limit of paragraph (b)(1) of this section can be approved for an easement proposed for enrollment in ACEP–WRE. Such a waiver will only be approved if the waiver will not adversely affect the local economy, and operators in the county are having difficulties complying with the conservation plans implemented under 16 U.S.C. 3812.
(c)
(1) Be the landowner of eligible land for which enrollment is sought;
(2) Provide any documentation required by NRCS as necessary to determine eligibility;
(3) Comply with applicable registration and reporting requirements of the Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109–282, as amended), and 2 CFR parts 25 and 170; and
(4) For easement applications, have been the landowner of such land for the 24-month period prior to the time of application unless it is determined by NRCS that:
(i) The land was acquired by will or succession as a result of the death of the previous landowner or pursuant to the terms of an existing trust,
(ii) The ownership change occurred due to foreclosure on the land and the owner of the land immediately before the foreclosure exercises a right of redemption from the mortgage holder in accordance with State law, or
(iii) The land was acquired under circumstances that give adequate assurances, as determined by NRCS,
(A) The prior landowner owned the land for 2 years or more and transferred ownership amongst members of the immediate family (father, mother, spouse, children, grandparents, or grandchildren),
(B) A completion of a contract for deed entered into 24 months or more prior to the application date,
(C) The new landowner had leased the land for agricultural purposes for 24 months or more prior to the application date, or
(D) The easement area is a portion of a larger property where the majority portion was acquired for agriculture purposes.
(4) Agree to provide such information to NRCS as the agency deems necessary to assist in its determination of eligibility for program benefits and for other program implementation purposes.
(d)
(e)
(2) NRCS will determine whether land is eligible for enrollment and whether, once found eligible, the lands may be included in the program based on the likelihood of successful restoration of such land and resultant wetland functions and values merit inclusion of such land in the program when considering the cost of acquiring the easement and the cost of the restoration, protection, enhancement, maintenance, and management.
(3) Land will only be considered eligible for enrollment in the ACEP–WRE if NRCS determines, in consultation with the FWS, that the enrollment of such land maximizes wildlife benefits and wetland function and values.
(4) To be determined eligible, NRCS must also determine that such land is—
(i) Farmed wetland or converted wetland, together with adjacent lands that are functionally dependent on the wetlands, if such land is identified by NRCS as:
(A) Wetlands farmed under natural conditions, farmed wetlands, prior converted cropland, commenced conversion wetlands, farmed wetland pastures, and lands substantially altered by flooding so as to develop and retain wetland functions and values; or
(B) Former or degraded wetlands that occur on lands that have been used or are currently being used for the production of food and fiber, including rangeland and forest production lands, where the hydrology has been significantly degraded or modified and will be substantially restored; or
(C) Farmed wetland and adjoining land enrolled in CRP that has the highest wetland functions and values and is likely to return to production after the land leaves CRP; or
(D) A riparian area along a stream or other waterway that links, or after restoring the riparian area, will link wetlands protected by the ACEP–WRE easement, another easement, or other device or circumstance that achieves the same objectives as an ACEP–WRE easement; or
(ii) Cropland or grassland that was used for agricultural production prior to flooding from the natural overflow of:
(A) A closed basin lake, together with adjacent land that is functionally dependent upon it, if the State or other entity is willing to provide 50 percent share of the cost of the an easement; or
(B) A pothole and adjacent land that is functionally dependent on it; and
(C) The size of the parcel offered for enrollment is a minimum of 20 contiguous acres. Such land meets the requirement of likelihood of successful restoration only if the soils are hydric and the depth of water is 6.5 feet or less.
(5) If land offered for enrollment is determined eligible under this subsection, then NRCS may also enroll land adjacent or contiguous to such eligible land together with the eligible land, if such land maximizes wildlife benefits and contributes significantly to wetland functions and values. Such adjacent or contiguous land may include buffer areas, created wetlands, noncropped natural wetlands, riparian areas that do not meet the requirements of paragraph (e)(4)(i)(D) of this section, and restored wetlands, but not more than NRCS, in consultation with the State Technical Committee, determines is necessary to maximize wildlife benefits and contribute significantly to wetland functions and values. NRCS will not enroll as adjacent or contiguous land any constructed wetlands that treat wastewater or contaminated runoff.
(6) To be enrolled in the program, eligible land must have sufficient access and be configured in a size and with boundaries that allow for the efficient management of the area for program purposes and otherwise promote and enhance program objectives as determined by NRCS.
(f)
(g)
(1) Converted wetlands if the conversion was commenced after December 23, 1985;
(2) Land established to trees under the CRP, except in cases where the land meets all other WRE eligibility criteria, the established cover conforms to WRE restoration requirements and NRCS specifications, an active CRP contract will be terminated or otherwise modified upon purchase of the WRE easement, and any additional criteria NRCS uses to determine if enrollment of such lands would further the purposes of the program;
(3) Lands owned the United States other than held in trust for Indian Tribes;
(4) Lands owned in fee title by a State, including an agency or a subdivision of a State or a unit of local government;
(5) Land subject to an easement or deed restriction which, as determined by NRCS, provides similar restoration and protection of wetland functions and values as would be provided by enrollment in ACEP–WRE;
(6) Lands where the purposes of the program or implementation of restoration practices would be undermined due to onsite or offsite conditions, including, but not limited to—
(i) Risk of hazardous substances either onsite or offsite,
(ii) Proposed or existing rights of way, either onsite or offsite, for infrastructure development, or
(iii) Adjacent land uses, such as airports, that would either impede
(7) Land which NRCS determines to have unacceptable exceptions to clear title or legal access that is encumbered, nontransferable, restricted, or otherwise insufficient.
(a)
(b)
(c)
(a) When evaluating easement or 30-year contract applications from landowners, NRCS, with advice from the State Technical Committee, may consider:
(1) The conservation benefits of obtaining an easement or other interest in the land, including but not limited to:
(i) Habitat that will be restored for the benefit of for migratory birds and wetland-dependent wildlife, including diversity of wildlife that will be benefitted or life-cycle needs that will be addressed;
(ii) Extent and use of habitat that will be restored for threatened, endangered, or other at-risk species or number of different at-risk species benefitted;
(iii) Protection or restoration of native vegetative communities;
(iv) Habitat diversity and complexity to be restored;
(v) Proximity and connectivity to other protected habitats;
(vi) Extent of beneficial adjacent land uses;
(vii) Proximity to impaired water bodies;
(viii) Extent of wetland losses within a geographic area, including wetlands generally or specific wetland types;
(ix) Hydrology restoration potential, which must comprise at least 50 percent of the points for conservation benefits.
(2) The cost effectiveness of each easement;
(3) Whether the landowner or another person is offering to contribute financially to the cost of the easement or other interest in the land to leverage Federal funds;
(4) The extent to which the purposes of this part would be achieved on the land;
(5) The productivity of the land;
(6) The on-farm and off-farm environmental threats if the land is used for the production of agricultural commodities.
(7) Such other factors as NRCS determines are necessary to carry out the purposes of the program.
(b) To the extent practicable, taking into consideration costs and future agricultural and food needs, NRCS will give priority to:
(1) Obtaining permanent easements over shorter term easements; and
(2) Acquiring easements based on the value of the easement for protecting and enhancing habitat for migratory birds and other wildlife, in consultation with FWS, as may be appropriate.
(c) NRCS, in consultation with the State Technical Committee, may place higher priority on:
(1) Certain land types or geographic regions of the State where restoration of wetlands may better achieve State and regional goals and objectives; and
(2) Land that is currently enrolled in CRP in a contract that is set to expire within one year from the date of application and is farmed wetland and adjoining land that has the highest wetland functions and values and is likely to return to production after the land leaves CRP.
(d) Notwithstanding any limitation of this part regarding priority ranking, NRCS may enroll eligible lands at any time in order to encompass total wetland areas subject to multiple ownership or otherwise to achieve program objectives. NRCS may, at any time, exclude enrollment of otherwise eligible lands if the participation of the adjacent landowners is essential to the successful restoration of the wetlands and those adjacent landowners are unwilling or ineligible to participate. NRCS may coordinate with other Federal, State, and nonprofit organizations to encourage the restoration of wetlands on adjacent ineligible lands, especially in priority geographic areas.
(a)
(b)
(c)
(2)
(d)
(i) Scope of the agreement between NRCS and the landowner,
(ii) Basis for NRCS to obligate funds, and
(iii) Nature and method through which NRCS will provide ACEP–WRE technical and financial assistance to the landowner.
(2) The agreement to purchase between NRCS and the landowner under the easement option constitutes the agreement for:
(i) Granting an easement on the enrolled land and sufficient access to the enrolled land as set forth under § 1468.37,
(ii) Implementing a WRPO which provides for the restoration and protection of the wetland functions and values,
(iii) Recording the easement in accordance with applicable State law,
(iv) Ensuring the title to the easement is superior to the rights of all others, except for exceptions to the title that are deemed acceptable by NRCS and in accordance with Department of Justice Title Standards, and
(v) Withholding the landowner's share of the restoration cost from the easement payment for 30-year or non-permanent easement or 30-year contract enrollments.
(3) The terms of the easement identified in paragraph (d)(2)(i) of this section includes the landowner's agreement to the implementation of a WRPO identified in paragraph (d)(2)(ii) of this section. In particular, the easement deed identifies that NRCS has the right to enter the easement area to undertake on its own or through an agreement with the landowner or other entity, any activities to restore, protect, manage, maintain, enhance, and monitor the wetland and other natural values of the easement area.
(4) At the time NRCS enters into an agreement to purchase, NRCS agrees, subject to paragraph (e) of this section, to acquire and provide for restoration of the land enrolled into the program.
(e)
(f)
(a)
(2) Payments for 30-year easements, nonpermanent easements as limited by State law, or 30-year contracts will be not more than 75 percent of that which would have been paid for a permanent easement as determined by the methods listed in paragraph (a)(3) of this section.
(3) NRCS will pay as compensation the lowest of the following:
(i) The fair market value of the land using the Uniform Standards for Professional Appraisal Practices or based on an areawide market analysis or survey,
(ii) The geographic area rate cap determined under paragraph (a)(4) of this section, or
(iii) A written offer made by the landowner.
(4) Each fiscal year NRCS, in consultation with the State Technical Committee, will establish one or more geographic area rate caps within a State. NRCS will determine the geographic area rate cap using the best information which is readily available in that State. Such information may include: soil types, types of crops capable of being grown, production history, location, real estate market values, and tax rates and assessments.
(b)
(2)(i) For easements or 30-year contracts valued at $500,000 or less, NRCS will provide compensation in up to 10 annual payments, as requested by the participant, as specified in the agreement to purchase or agreement to enter 30-year contract between NRCS and the participant.
(ii) For easements or 30-year contracts valued at more than $500,000, NRCS may provide compensation in at least 5, but not more than 10 annual payments. NRCS may provide compensation in a single payment for such easements or 30-year contracts when, as determined by the NRCS Chief, it would further the purposes of the program. The applicable payment schedule will be specified in the agreement to purchase a conservation easement (APCE) or agreement to enter contract for 30-year land use, entered into between NRCS and the landowner.
(c)
(d)
(a) The purpose of the Wetland Reserve Enhancement Partnership (WREP) option is to target and leverage resources to address high priority wetland protection, restoration, and enhancement objectives through agreements with States (including a political subdivision or agency of a State), nongovernmental organizations, or Indian Tribes.
(b) NRCS will establish priorities for funding, required level of partner contribution of resources, ranking criteria, and other criteria. Among other selection criteria, NRCS will prioritize proposals that address wetland restoration needs of national or regional importance, including special project or area-wide proposals.
(c) NRCS will make the information regarding WREP available to the public and potential partners.
(d) NRCS will evaluate proposals and make final funding selections based upon the priorities identified in the public notice of funding availability.
(e) NRCS will enter into WREP agreements with partners who have projects selected for funding.
(a) NRCS may provide financial assistance for implementing the WRPO on the enrolled land. The amount and terms and conditions of the financial assistance will be subject to the following restrictions on the costs of establishing or installing conservation practices or activities specified in the WRPO:
(1) On enrolled land subject to a permanent easement, NRCS will offer to pay at least 75 percent but not more than 100 percent of such costs; and
(2) On enrolled land subject to a 30-year or nonpermanent easement or 30-year contract, NRCS will offer to pay at least 50 percent but not more than 75 percent of such costs. The landowner's share of the WRPO implementation costs may be withheld from the easement or 30-year contract payment.
(b) Payments may be made only upon a determination by NRCS that an eligible conservation practice or component of the conservation practice
(c) Payments may be made for replacement of an eligible conservation practice, if NRCS determines that the practice is still needed and that the failure of the original conservation practice was due to reasons beyond the control of the participant.
(d) A participant may seek additional assistance from other public or private organizations as long as the conservation practices or activities funded are approved by NRCS and implemented in compliance with this part.
(a)
(2) For the duration of its term, the easement will require, at a minimum, that the landowner and the landowner's heirs, successors, and assigns will cooperate in the restoration, protection, enhancement, maintenance, and management of the land in accordance with the warranty easement deed and with the terms of the WRPO. In addition, the easement will grant to the United States:
(i) A sufficient right of legal access to the easement area,
(ii) The right to authorize compatible uses of the easement area, including such activities as hunting and fishing, managed timber harvest, or periodic haying or grazing, if such use is consistent with the long-term protection and enhancement of the wetland resources for which the easement was established,
(iii) All rights, title, and interest in the easement area except those rights specifically reserved in the deed, and
(iv) The right to restore, protect, enhance, maintain, and manage activities on the easement area.
(3) The landowner will convey title to the easement in a manner that is acceptable to NRCS. The landowner will warrant that the easement granted to the United States is superior to the rights of all others, except for title exceptions deemed acceptable by NRCS.
(4) The participant will:
(i) Comply with the terms of the easement,
(ii) Comply with all terms and conditions of any related contract or agreement,
(iii) Agree to the permanent retirement of any existing cropland base and allotment history for the easement area, as determined by FSA,
(iv) Agree to the long-term restoration, protection, enhancement, maintenance, and management of the easement in accordance with the terms of the easement and related agreements, and
(v) Agree that each person or legal entity that is subject to the easement will be jointly and severally responsible for compliance with the easement and the provisions of this part and for any refunds or payment adjustment which may be required for violation of any terms or conditions of the easement or the provisions of this part.
(b)
(2) For the duration of the 30-year contract, the contract will require, at a minimum, that the landowner and the landowner's heirs, successors, and assigns will, consistent with the terms of this part, cooperate in the restoration, protection, enhancement, maintenance, and management of the land in accordance with the contract and with the terms of the WRPO. In addition, the 30-year contract will grant to NRCS:
(i) A sufficient right of legal access to the entire contract area for the duration of the contract,
(ii) The right to authorize compatible uses of the contract area, including such activities as a traditional Tribal use of the land, hunting and fishing, managed timber harvest, or periodic haying or grazing if such use is consistent with the long-term protection and enhancement of the wetland resources for which the contract was established, and
(iii) The right to restore, protect, enhance, maintain, and manage activities on the enrolled area.
(3) The landowner will:
(i) Comply with the terms of the contract,
(ii) Comply with all terms and conditions of any associated agreement,
(iii) Agree to the long-term restoration, protection, enhancement, maintenance, and management of the enrolled area in accordance with the terms of the contract and related agreements, and
(iv) Agree that each person or legal entity that is subject to the contract will be jointly and severally responsible for compliance with the contract and the provisions of this part and for any refunds or payment adjustment which may be required for violation of any terms or conditions of the contract or the provisions of this part.
(c)
(i) Is compatible with the land subject to the wetland reserve easement or 30-year contract,
(ii) Is consistent with the historical natural uses of the land and long-term wetland protection and enhancement goals for which the wetland reserve easement or 30-year contract was established,
(iii) Is subject to a recorded Exhibit to the deed outlining grazing purposes and limitations, and
(iv) Complies with a WRPO developed by NRCS.
(2) Compensation for easements or 30-year contracts where the grazing rights are reserved under this subsection will be based on the method described in § 1468.34, except such compensation will be reduced by an amount equal to the value of the reserved grazing rights, as determined by NRCS.
(a) The WRPO will be developed as determined by NRCS in consultation with the State Technical Committee and consideration of available site-specific technical input from FWS and others as appropriate.
(b) The WRPO will specify the manner in which the enrolled land will be restored, protected, enhanced, maintained, and managed to accomplish the goals of the program. The WRPO will be developed to ensure that cost effective restoration and maximization of wildlife benefits and wetland functions and values will result. Specifically, the WRPO will consider and address, to the extent practicable, the onsite alternations and the offsite watershed conditions that adversely impact the hydrology and associated wildlife and wetland functions and values.
(a)
(2) Notwithstanding paragraph (a)(1) of this section, NRCS reserves the right to enter upon the easement area at any time to remedy deficiencies or easement violations. Such entry may be made at the discretion of NRCS when such actions are deemed necessary to protect important wetland functions and values or other rights of the United States under the easement. The landowner will be liable for any costs incurred by the United States as a result of the landowner's failure to comply with easement obligations.
(3) If there is failure to comply with easement obligations, the easement will remain in effect, and NRCS may, in addition to any other remedy available to the United States, retain any payment otherwise required to be paid under this part and require the refund of any payment previously made under this part.
(b)
(2) Notwithstanding the provisions of paragraph (b)(1) of this section, a 30-year contract or wetland reserve easement restoration agreement termination is effective immediately upon a determination by the NRCS that the landowner has:
(i) Submitted false information,
(ii) Filed a false claim, or
(iii) Engaged in any act for which a finding of ineligibility for payments is permitted under this part.
(3) If NRCS terminates a 30-year contract or wetland reserve easement restoration agreement, the landowner will forfeit all rights for future payments under the 30-year contract or wetland reserve easement restoration agreement, and must refund all or part, as determined by NRCS, of the payments received, plus interest.